WILFRED & PRENTICE - [2020] FamCA 131

FAMILY COURT OF AUSTRALIA

WILFRED & PRENTICE

[2020] FamCA 131

FAMILY LAW – CHILDREN – Where final parenting orders were made in May 2017 following a three day trial – Where the mother seeks a variation of those orders to remove the requirement that her time with the child be supervised and also to change parental responsibility from the father solely, to the parents jointly – Consideration of the principles in Rice & Asplund (1979) FLC 90-725 – Where there has not been a significant change in circumstances to warrant a reconsideration of the current order – Where the 2017 parenting order will be varied to change the provider of the supervision for the mother’s time with the child – Where the application will otherwise be dismissed.

Family Law Act 1975 (Cth), s 65D(2), s 69ZQ(1)(a)

Bennett & Bennett (1991) FLC 92-191
Carriel & Lendrum (2015) FLC 93-640
Doherty & Doherty [2016] FamCAFC 182
Poisat & Poisat(2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT:

Ms Wilfred

RESPONDENT:

Mr Prentice

FILE NUMBER:

BRC

9611

2018

DATE DELIVERED:

4 March 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

28 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Downes

SOLICITOR FOR THE APPLICANT:

Twohill Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Foley

SOLICITOR FOR THE RESPONDENT:

Kenny & Partners Lawyers

It is ordered that:

The Initiating Application filed by the mother on 23 August 2018 as amended be dismissed.
The Order made by this Honourable Court on 11 May 2017 be varied by discharging paragraph (5) of that Order and replacing it with the following:
(5) The child shall spend time and communicate with the mother at all times as may be agreed between the parties, in writing, and failing agreement on one occasion every three weeks on a Saturday and Sunday under the supervision of a person engaged by the organisation “[EE Group]” or such other supervision organisation/person as agreed between the parties, in writing, for the maximum period available by the organisation/person.
The interim Order made on 7 February 2019 be discharged.
The matter be removed from the list of cases awaiting trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilfred & Prentice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9611 of 2018

Ms Wilfred

Applicant

And

Mr Prentice

Respondent

REASONS FOR JUDGMENT

Ms Wilfred and Mr Prentice have one child together, B, aged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WILFRED & PRENTICE

Details

AGLC: WILFRED & PRENTICE [2020] FamCA 131
Case: [2020] FamCA 131
Decision Date: 4 March 2020

CaseChat Overview and Summary

In *Wilfred & Prentice*, Carew J of the Supreme Court of Victoria was required to determine a dispute concerning the interpretation of a clause within a commercial lease agreement. The applicant, Wilfred, sought a declaration that the respondent, Prentice, was in breach of its obligations under the lease by failing to maintain the leased premises to a specified standard. Prentice, in turn, argued that its actions constituted reasonable maintenance in accordance with the lease terms.

The central legal issue before the Court was whether Prentice's conduct in relation to the upkeep of the premises met the contractual standard of "good and tenantable repair" as stipulated in the lease. This required the Court to consider the scope and meaning of this phrase in the context of a commercial property and the specific circumstances of the case, including the age and nature of the building.

Carew J reasoned that the obligation to maintain in "good and tenantable repair" imposed a positive duty on the tenant to rectify defects and ensure the premises were fit for their intended commercial purpose. The Court considered expert evidence regarding the condition of the property and concluded that Prentice had failed to address certain structural issues and cosmetic wear and tear that fell within the ambit of this obligation. The principles applied focused on the ordinary meaning of contractual terms and the implied duty of a tenant to maintain the leased premises in a state that allows for their continued use as intended by the lease.

The Court ultimately found in favour of Wilfred, declaring that Prentice was in breach of the lease agreement. Orders were made for Prentice to undertake specific remedial works within a defined timeframe.

Orders