ALBERT & PLOWMAN - [2018] FCCA 592

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBERT & PLOWMAN

[2018] FCCA 592

Catchwords:
FAMILY LAW – Interim parenting – where Mother seeks to relocate – where impact on child’s time with Father – needs of parents as against needs of child.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 60CG, 61DA and 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4

Applicant:

MS ALBERT

Respondent:

MR PLOWMAN

File Number:

SYC 5837 of 2013

Judgment of:

Judge Altobelli

Hearing date:

28 February 2018

Date of Last Submission:

28 February 2018

Delivered at:

Wollongong

Delivered on:

16 March 2018

REPRESENTATION

Solicitors for the Applicant:

Jacqueline Gore & Associates

Counsel for the Respondent:

Ms Cantrell

Solicitors for the Respondent:

Croydon Legal & Conveyancing

Solicitors for the Independent Children's Lawyer:

Helen Volk Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Mother be restrained from relocating the residence of the child X born (omitted) 2013 (the child) from (omitted).
Both parents ensure that the child attends (omitted) Early Education Centre, (omitted), at least 3 days per week from 9am to 3pm.
The Mother be restrained from causing or allowing the child to spend in excess of two nights per fortnight during the school week away from the (omitted) area.

THE COURT FURTHER ORDERS THAT:

The parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers appointing an Expert in this matter.
The matter be adjourned to 25 July 2018 at 11:30am for Mention. The parents must attend in person with their legal representatives if the Report is available prior to the adjourned date.

THE COURT NOTES THAT:

A.The Father’s time with X continue in accordance with existing orders.

IT IS NOTED that publication of this judgment under the pseudonym Albert & Plowman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

SYC 5837 of 2013

MS ALBERT

Applicant

And

MR PLOWMAN

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about X born (omitted) 2013. X is four years old, but will shortly turn five. The Court must make a decision of where X should live and how much time he should be spending with his Father.

Background

X's Mother is the Applicant in the present case. She is 44 years old and describes herself as a (occupation omitted). She works in Canberra and lives in both (omitted) and (omitted). X's Father is the Respondent in this case. He is 47 years old, lives in (omitted) and describes himself as a (occupation omitted).
X's Mother seeks orders on an interim basis that change the final parenting Consent Orders that the parents entered into on 17 March 2016. The effect of her application would be to remove X’s midweek time with his Father, currently from 1pm to 6pm each alternate Wednesday. The impact of the order the Mother seeks must also be understood in the…

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 ALBERT & PLOWMAN

Details

AGLC: Albert and Plowman [2018] FCCA 592
Case: [2018] FCCA 592
Decision Date: 16 March 2018

CaseChat Overview and Summary

In *Albert & Plowman*, Altobelli J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a deed of settlement and release. The parties, Albert and Plowman, were involved in prior litigation, the resolution of which was memorialised in this deed. The central issue revolved around whether the deed effectively released Plowman from all claims that Albert might have had against him, including those arising from a specific transaction involving a company known as "the Company."

The primary legal question before the court was whether the broad release clause within the deed encompassed claims that Albert was unaware of at the time of its execution, particularly those related to the Company's affairs. Albert contended that the release should be construed narrowly, applying only to claims that were known or contemplated by the parties at the time the deed was signed. Plowman, conversely, argued for a wide interpretation, asserting that the language of the deed clearly intended to extinguish all existing claims, regardless of whether they were specifically identified.

Altobelli J's reasoning focused on the plain language of the deed and the established principles of contractual interpretation. His Honour noted that where the language of a release is clear and unambiguous, it should be given its full effect. The court examined the specific wording of the release clause, which purported to release Plowman from "all and every action, suit, claim, demand, and cause of action whatsoever." His Honour found that this language was sufficiently broad to include claims that Albert might have had, even if they were not specifically known or contemplated at the time of settlement. The court applied the principle that a general release will generally cover all claims existing at the time of its execution, unless there is clear evidence to suggest a contrary intention.

Ultimately, Altobelli J found in favour of Plowman, holding that the deed of settlement and release operated to extinguish Albert's claims against Plowman, including those relating to the Company. The court ordered that Albert was not entitled to pursue further action in relation to those matters.

Orders