Bitu & Bitu - [2019] FamCA 715

FAMILY COURT OF AUSTRALIA

BITU & BITU AND ORS

[2019] FamCA 715

FAMILY LAW – CHILDREN – Undefended hearing – Where the mother ceased engaging in the proceedings – Where consideration of applicable principles – Where orders were made providing the paternal aunt with sole parental responsibility – Where orders made for the child to live with the paternal aunt

Family Law Act 1975 (Cth) ss, 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 69ZN
Family Law Rules 2004 (Cth) r 11.02, 16.07

Aldridge & Keaton [2009] FamCAFC 229
Aon risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Donnell & Dovey [2010] FamCAFC 15
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Potts & Bims [2007] FamCA 394

APPLICANT:

Ms Bitu

FIRST RESPONDENT:

Mr Bitu

SECOND RESPONDENT:

Ms C Bitu

THIRD RESPONDENT:

Ms Keshav

INDEPENDENT CHILDREN’S LAWYER:

Crawford Ryan Lawyers

FILE NUMBER:

WOC

1287

2016

DATE DELIVERED:

4 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

19 July 2019

REPRESENTATION

SOLICITOR FOR THE FIRST RESPONDENT:

Ms Wilkins

SOLICITOR FOR THE SECOND RESPONDENT:

Ms Udagama

SOLICITOR FOR THE THIRD RESPONDENT:

Ms Udagama

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carol

Orders Made On 19 July 2019

The paternal aunt MS S BITU have sole parental responsibility for the child X born … 2012.
The said child live with the paternal aunt.
The said child spend time with the father as agreed between the father and paternal aunt.
The child X born … 2012 is permitted to have an Australian travel document and travel internationally.
The paternal aunt Ms S Bitu may apply for an Australian travel document (“passport”) for the child X born … 2012 without first obtaining the consent of the mother Ms Bitu and the father Mr Bitu.
The Family Law Watchlist order made 23 August 2018 in relation to the child X born … 2012 is hereby discharged and it is requested that the Australian Federal Police give effect to this order and cause the removal of the said child’s name from the Family Law Watchlist.
All outstanding applications be dismissed.
The matter be removed from the active pending cases list.
All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

THE COURT NOTES THAT

A.The paternal aunt Ms S Bitu would benefit from the paternal grandmother Ms Keshav providing assistance in the care of the child X born … 2012.
B.In the circumstances of this matter, there is no application for costs by the Independent Children’s Lawyer.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bitu & Bitu and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of…

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 Bitu & Bitu

Details

AGLC: Bitu & Bitu [2019] FamCA 715
Case: [2019] FamCA 715
Decision Date: 4 October 2019

CaseChat Overview and Summary

The parties to this proceeding were Bitu and Bitu. The dispute concerned the interpretation and application of a deed of settlement and release. The matter came before Foster J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the respondent, Bitu, was entitled to pursue a claim for damages for breach of contract against the appellant, Bitu, notwithstanding the execution of a deed of settlement and release. This required the Court to consider the scope and effect of the release provisions within the deed, and whether the alleged breach of contract fell within the ambit of the release.

Foster J's reasoning focused on the principles of contractual interpretation, particularly in relation to deeds of settlement. His Honour examined the language of the deed, giving it its ordinary and natural meaning in the context of the surrounding circumstances. The Court considered whether the parties intended to release all claims, known or unknown, arising from the underlying contractual relationship, or whether the release was limited to specific matters. His Honour concluded that the wording of the deed clearly and unambiguously released the respondent from any further claims arising from the contract, including the alleged breach.

Consequently, Foster J ordered that the respondent was not entitled to pursue its claim for damages for breach of contract.

Orders