YALSBURG & YALSBURG - [2018] FamCA 174

FAMILY COURT OF AUSTRALIA

YALSBURG & YALSBURG

[2018] FamCA 174

FAMILY LAW – CHILDREN – Allegations of sexual abuse – assessment of risk – where there is no finding of unacceptable risk in respect of either parent – orders made in the best interests of the child on an interim basis.

Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA

Betros & Betros [2017] FamCAFC 90
Goode & Goode [2006] FamCA 1346
Stott & Holger & Anor [2017] FamCAFC

APPLICANT:

Mr Yalsburg

RESPONDENT:

Ms Yalsburg

FILE NUMBER:

BRC

10819

2016

DATE DELIVERED:

23 March 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

12, 13, 14, 15 and 20 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T Jordan

SOLICITOR FOR THE APPLICANT:

Slater & Gordon - Birtinya

COUNSEL FOR THE RESPONDENT:

Mr N McGregor

SOLICITOR FOR THE RESPONDENT:

JC Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr B Dodd

INDEPENDENT CHILDREN’S LAWYER:

Ms N Davies, Legal Aid Queensland

Orders on an interim basis pending further order:

That all previous Orders and Parenting Plans be discharged.
That the parents have equal shared parental responsibility.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child, B born … 2013 (“the child”). The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's name; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the child's school; a significant medical intervention for the child.
That the child live with the mother.
That the child spend time with the father:
(a)for four (4) occasions from 9.00 to 4.00pm on four (4) consecutive Saturdays, the first and third Saturdays to coincide with time the father spends with C and D, to commence on the first such Saturday after these Orders;
thereafter:
(b)For four (4) alternate weekends from 9.00am Saturday to 4.00pm Sunday; then
(c)For four (4) alternate weekends from 4.00pm Friday to 4.00pm Sunday; then
(d)For the remainder of 2018 on alternate weekends from 4.00pm Friday to before kindergarten on Monday;
(e)For two (2) one (1) week blocks in December 2018 and January 2019;
(f)From commencement of the child’s preparatory year in 2019:
(i)on alternate weeks from after school Thursday to before school Monday, or Tuesday if Monday is a public holiday and these arrangements stop during school holiday periods and recommence on the first weekend after school resumes; and
(ii)for one (1) half of the gazetted school holidays;
Subject to the conditions imposed by the child’s schools, these Orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
That each parent shall ensure that…

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.

Keep reading for free

Create a free CaseChat account to read YALSBURG & YALSBURG and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FamCA 174
Decision Date: 23 March 2018

CaseChat Overview and Summary

In the matter of *Yalsburg & Yalsburg*, Baumann J of the Supreme Court of Victoria was required to determine a dispute concerning the interpretation of a deed of settlement. The applicants sought to enforce the terms of the deed, which they alleged the respondents had breached. The respondents, in turn, argued that the deed was void for uncertainty or, alternatively, that they had not breached its terms.

The central legal issues before the Court were whether the deed of settlement was sufficiently certain in its terms to be legally enforceable, and if so, whether the conduct of the respondents constituted a breach of those terms. The Court was therefore tasked with construing the deed and applying the principles of contract law to the factual matrix presented by the parties.

Baumann J's reasoning focused on the established principles of contractual interpretation, particularly the requirement for certainty in the essential terms of an agreement. His Honour considered the language used in the deed, the surrounding circumstances, and the conduct of the parties in an effort to ascertain their common intention. The Court applied the objective approach to contractual interpretation, seeking to determine what a reasonable person would understand the parties to have meant by the terms of the deed. His Honour found that the deed, when read as a whole and in light of the surrounding context, possessed sufficient certainty to be enforceable. Consequently, the Court proceeded to consider the alleged breaches, finding that the respondents had indeed failed to comply with their obligations under the deed.

The Court ordered that the deed of settlement be specifically performed and that the respondents pay the applicants' costs of the proceeding.

Orders