AITKEN & PORTEUS - [2016] FCCA 2029

FEDERAL CIRCUIT COURT OF AUSTRALIA

AITKEN & PORTEUS

[2016] FCCA 2029

Catchwords:
FAMILY LAW – Interim hearing in relation to parenting proposals of each party – prior parenting orders of Family Court of Australia – change in circumstances – fresh parenting orders made – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA(3), 65D, 65DAA(3), 117(2A)

Cases cited:

Banks & Banks [2015] FamCAFC 36
Cheni & Stiller(No.2) [2016] FamCA 218
Goode & Goode (2006) FLC 93-286

Hawkins & Roe [2012] FamCAFC 77

Marvel & Marvel (2010) 43 Fam LR 348

Rice & Asplund [1979] FLC 90-725

Applicant:

MS AITKEN

Respondent:

MR PORTEUS

File Number:

PAC 2768 of 2007

Judgment of:

Judge Newbrun

Hearing date:

21 July 2016

Date of Last Submission:

21 July 2016

Delivered at:

Parramatta

Delivered on:

9 September 2016

REPRESENTATION

Solicitors for the Applicant:

Caldwell Martin Cox Solicitors

Respondent:

In person

ORDERS, PENDING FURTHER ORDER:

That the final consent parenting Orders made by the Family Court of Australia on 26 April 2007 be discharged.
That the parties have equal shared parental responsibility for major long-term decisions concerning the children X born (omitted) 2001 and Y born (omitted) 2002 (“the children”).
That the children live with the mother.
That the children spend time with the father:
(a)each alternate weekend from 5:00pm on the Friday until 5:00pm on the Sunday (subject to Mother’s Day, Christmas Eve, Christmas Day, Boxing Day, all school holiday periods and the children’s birthdays, which are otherwise dealt with herein);
(b)from 9:00am until 5:00pm on Father’s Day in each year;
(c)for the first half of the school holiday periods, each year commencing at 9:00am on the day after the children finish school, and concluding at 5:00pm on the middle Saturday of the said holiday period;
(d)for 2016, from 12:00 noon on Christmas Eve until 6:00pm on Christmas Day;
(e)on each of the children’s birthdays in even numbered years as agreed and failing agreement, from the evening prior at 4:00pm until 5:00pm on the birthday, and similarly with the mother in odd numbered years; and
(f)at such other times as may be agreed in writing between the parents (to include SMS or email).
That the children’s time with the father during school holiday periods shall be suspended from 6:00pm on Christmas Day until 5:00pm on Boxing Day in 2016.
That the children shall spend time with the mother on Mother’s Day from 9:00am until 5:00pm.
That for changeover purposes for the alternate weekends referred to above, and whilst the children are at boarding school, the father shall collect the children from school at 5:00pm on Friday and shall return them to school at 5:00pm on Sunday (or 5:00pm on Monday if a long weekend).
That for changeover purposes for Father’s Day, Mother’s Day, school holidays, Christmas Eve and Christmas Day periods and the children’s birthdays, as referred to above, the mother shall, when applicable, deliver the children to the father’s home at the commencement of that time and the father,…

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.

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Details

AGLC: Aitken and Porteus [2016] FCCA 2029
Case: [2016] FCCA 2029
Decision Date: 9 September 2016

CaseChat Overview and Summary

In the matter of Aitken & Porteus, Newbrun J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a deed of settlement and its impact on the parties' respective rights and obligations. The central issue revolved around whether a party had breached the terms of the settlement by failing to meet certain financial obligations.

The court was tasked with determining the precise meaning and effect of specific clauses within the deed of settlement, particularly those relating to payment schedules and the consequences of default. This involved an analysis of contractual interpretation principles to ascertain the parties' intentions at the time the deed was executed.

Newbrun J applied established principles of contractual interpretation, emphasizing the importance of giving effect to the plain and ordinary meaning of the words used in the deed, read in their context. The judge considered the surrounding circumstances and the purpose of the settlement agreement to resolve any ambiguity. The court found that the defendant had indeed breached the terms of the deed by failing to make the stipulated payments.

Consequently, the court made orders enforcing the terms of the deed of settlement and requiring the defendant to satisfy the outstanding financial obligations as per the agreement.

Orders