BANKS & BANKS - [2012] FamCA 158

FAMILY COURT OF AUSTRALIA

BANKS & BANKS

[2012] FamCA 158

FAMILY LAW - CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – allegations of sexual abuse – whether child is at an unacceptable risk in the unsupervised care of the father - order that father spend supervised time with the child during the day increasing to unsupervised time during the day

FAMILY LAW - PROPERTY - Contributions - add backs – superannuation

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CA, 61DA and 64D
Evidence Act 1995 (Cth) s 128

Hartford and Ansilda [2009] FamCA 23
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

APPLICANT:

Ms Banks

RESPONDENT:

Mr Banks

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYC

2941

2010

DATE DELIVERED:

22 March 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

12, 13, 14, 15, 16, 19, 20 December 2011 and 24 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Maureen De Vere

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr David Dura

SOLICITOR FOR THE RESPONDENT:

McLachlan Thorpe Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Pamela Nash

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Pearson Family Lawyers

PARENTING

THE COURT ORDERS:

BY WAY OF FINAL ORDER all previous parenting orders in respect of L, born July 2004 (“the child”) are discharged.
BY WAY OF FINAL ORDER Ms Banks (“the mother”) shall have sole parental responsibility for the child.
BY WAY OF FINAL ORDER the mother shall consider the views of Mr Banks also known as Mr Brent (“the father) in relation to parental responsibility and shall endeavour to reach agreement with the father on such issues.
BY WAY OF FINAL ORDER the child shall live with the mother.
PENDING FURTHER ORDER the child spend time with the father as follows:
Stage One – School Terms 1 and 2 - 2012
5.1.During terms 1 and 2, 2012:-
5.1.1.Each Sunday from 9.00 am until 3.00 pm commencing on the first Sunday from the date of these Orders; and the father’s time shall be supervised by Ms T or Ms Q (“the paternal grandmother”).
5.1.2.Each Wednesday from after school until 7.00 pm, with such time to be spent in the Penrith/Blue Mountains area. For the purpose of this order, Mr M, (“the child’s maternal grandfather”), shall supervise the father's time with the child. Changeover at the commencement of the father’s time with the child shall occur at G Primary School, provided that the maternal grandfather is present, and will conclude at 7.00 pm with the child left in the maternal grandfather’s care who shall deliver him to his mother.
5.2.For the purpose of Sunday or weekend time the father shall collect the child (in the presence of Ms T or the paternal grandmother) at the bottom of the maternal grandparent’s driveway at … O Street, Town G at the commencement of his time…

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 BANKS & BANKS

Details

AGLC: BANKS & BANKS [2012] FamCA 158
Case: [2012] FamCA 158
Decision Date: 22 March 2012

CaseChat Overview and Summary

The parties to this proceeding were Banks and Banks. The dispute concerned the interpretation and application of a deed of settlement and release entered into between the parties. The matter came before Benjamin J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the deed of settlement and release operated to extinguish the plaintiff's claim for damages for breach of contract, or whether the claim was preserved by an exception contained within the deed. This required the Court to consider the proper construction of the deed, particularly the operative words of release and any subsequent exceptions or provisos.

Benjamin J's reasoning focused on the principles of contractual interpretation, emphasising the importance of giving effect to the plain and ordinary meaning of the words used in the deed, read in their context. His Honour considered the overall purpose of the deed and the surrounding circumstances to ascertain the parties' intentions. The Court concluded that the language of the release, when read as a whole and in light of the specific exception, did not operate to extinguish the plaintiff's claim for damages arising from the alleged breach of contract.

The Court therefore found in favour of the plaintiff, determining that the claim for damages was not barred by the deed of settlement and release.

Orders