BABEU & AAMOT - [2014] FCCA 3066

FEDERAL CIRCUIT COURT OF AUSTRALIA

BABEU & AAMOT

[2014] FCCA 3066

Catchwords:
FAMILY LAW – Interim hearing – equal time.

Legislation:
Family Law Act 1975, ss.60CC, 61DA, 65DAA

Cases cited:
Goode v Goode (2006) 36 Fam LR 422, (2006) FLC 93-286 [2006] FamCA 1346

Re G Children’s Schooling [2000] FamCA 462

T & N [2001] FMCAfam 222, (2001) 31 FamLR 281

Applicant:

MS BABEU

Respondent:

MR AAMOT

File Number:

NCC 2104 of 2014

Judgment of:

Judge Myers

Hearing date:

22 December 2014

Date of Last Submission:

22 December 2014

Delivered at:

Newcastle

Delivered on:

22 December 2014

REPRESENTATION

Counsel for the Applicant:

Mr Duane

Solicitors for the Applicant:

Burke & Mead Lawyers

Counsel for the Respondent:

Mr Dowd

Solicitors for the Respondent:

Watts & McCray Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The parties shall have equal shared parental responsibility for the children [X] born [omitted] 2006, [Y] born [omitted] 2010 and [Z] born [omitted] 2012.
The father spend time with the children as follow during school term:
(a)With [Z] in a two (2) week cycle as follows:
(i)From 11.00 am to 4.30 pm on Monday;
(ii)In week 2 from 11.00 am to 4.30 pm on Monday and from 10.00 am to 4.00 pm on Saturday and Sunday.
(b)With [Y] in a two (2) week cycle as follows:
(i)Week 1 from 11.00 am Monday to 9.00 am Wednesday
(ii)Week 2 from 3.00 pm Friday to 9.00 am Wednesday
(c)With [X] in a two (2) week cycle as follows:
(i)Week 1 from 3.00 pm Monday, or 11.00 am if [X] does not attend school on this day, until 9.00 am Wednesday;
(ii)Week 2 from 3.00 pm Friday to 9.00 am Wednesday.
(d)With [X] and [Y] only during the Coptic Orthodox Christmas from 4.00 pm on 5 December until 4.00 pm on 9 January each year and with [Z] from 8.00 am to 6.00 pm on 7 January each year.
(e)During the Coptic Orthodox Easter weekend from 4.00 pm Friday until 4.00 pm Easter Monday with [X] and [Y] and with [Z] from 8.00 am to 6.00 pm on Coptic Orthodox Easter Sunday.
(f)On the weekend which includes Father’s Day with [X] and [Y] from after school Friday to until before school Monday and with [Z] from 10.00 am until 4.00 pm on Father’s Day provided that if the children were not otherwise be spending time with the father pursuant to these orders on such weekend time they have spent with the father on the following weekend shall be suspended.
(g)At such other times as may be agreed between the parties in writing.
(h)[Z]’s time with the father shall be extended to 6.00 pm on each alternate Saturday and Sunday provided she is fed, bathed and ready for bed upon her return from the father to the mother.
The children live with the mother at all other times.
Despite the provisions of any other order the children spend time with the mother from 12 noon New Year’s Eve until…

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 BABEU & AAMOT

Details

AGLC: Babeu and Aamot [2014] FCCA 3066
Case: [2014] FCCA 3066
Decision Date: 22 December 2014

CaseChat Overview and Summary

The parties to this proceeding were BABEU and AAMOT. The dispute concerned the interpretation and application of a deed of settlement and release. The matter came before Myers J of the Supreme Court of Victoria.

The central legal issue before the Court was whether the deed of settlement and release, which purported to resolve all claims between the parties, effectively extinguished a claim for breach of contract that arose after the execution of the deed.

Myers J considered the plain language of the deed, particularly the scope of the release. His Honour found that the wording of the deed, which referred to "all and every action, suit, cause of action, claim and demand whatsoever," was sufficiently broad to encompass future claims, provided they were in existence at the time of the deed's execution. However, the claim for breach of contract arose from conduct that occurred subsequent to the deed. Therefore, the deed did not operate to release this future claim. The Court applied the principle that a release generally operates prospectively only in relation to claims that have accrued or are in existence at the time of its execution, unless there is clear and unambiguous language to the contrary indicating an intention to release future, unknown claims.

The Court ordered that the claim for breach of contract was not barred by the deed of settlement and release.

Orders