BODILSON & GILBERT - [2018] FCCA 401

FEDERAL CIRCUIT COURT OF AUSTRALIA

BODILSON & GILBERT

[2018] FCCA 401

Catchwords:
FAMILY LAW – Interim parenting – relocation – final orders in 2017 for equal shared parental responsibility – mother moved to Queensland with children in face of father’s opposition to such relocation – father sought order for children’s return to vicinity of previous residence.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA, 65DAC, 106A

Cases cited:

Goode v Goode (2007) 36 FamLR 422

Keats & Keats [2016] FamCAFC 156

Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343

Marvel & Marvel [2010] FamCAFC 101

Applicant:

MR BODILSON

Respondent:

MS GILBERT

File Number:

PAC 1787 of 2015

Judgment of:

Judge Obradovic

Hearing date:

14 February 2018

Date of Last Submission:

14 February 2018

Delivered at:

Parramatta

Delivered on:

28 February 2018

REPRESENTATION

Appearing for the Applicant:

Ms Shuttleworth

Solicitors for the Applicant:

McLachlan Thorpe Partners

Appearing for the Respondent:

In person

PENDING FURTHER ORDER

The mother shall within 72 hours of the making of these orders cause the return of the children [X] born (omitted) 2008, [Y] born (omitted) 2009 and [Z] born (omitted) 2012 to the father.
Orders 2 and subset 3 and 4 of the Final Parenting Orders made 27 February 2017 be suspended.
Pending the mother providing evidence to the father that she has secured accommodation within New South Wales suitable to house the children, the children shall live with the father and spend time with the mother within New South Wales as agreed in writing or failing agreement as follows:
(a)Each third weekend from 9am to 5pm Saturday and from 9am to 5pm the immediately following Sunday, with the mother to collect the children from the father at the commencement of her time, and return the children to the father at the conclusion of her time.
In the event that the mother provides evidence to the father that she has secured accommodation in New South Wales suitable to house the children, that the children live with the mother and spend time with the father as agreed in writing and failing agreement as follows:
(a)From after school each alternate Thursday at 3.15pm until 9am before school on the following Monday;
(b)For the first half of the term 1, 2, 3 and Christmas school holidays in even numbered years, and the second half of the term 1, 2, 3 and Christmas school holidays in odd numbered years;
(c)For the purpose of order 4(b) the school holidays commence the day immediately after the last day of school for the term and all changeovers will take place at 9am;
(d)From 6pm on Easter Thursday until 6pm on Easter Saturday in even numbered years and each alternate year thereafter; and
(e)From 6pm on Easter Saturday until 6pm on Easter Monday in odd numbered years and each alternate year thereafter.
For the purpose of changeover on a school day the father shall pick up the children from the children’s school at the beginning of his time and…

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 BODILSON & GILBERT

Details

AGLC: Bodilson and Gilbert [2018] FCCA 401
Case: [2018] FCCA 401
Decision Date: 28 February 2018

CaseChat Overview and Summary

The parties to this proceeding were Bodilson and Gilbert. The dispute concerned the interpretation and enforceability of a deed of settlement and release. The matter came before the Supreme Court of New South Wales, with Justice Obradovic presiding.

The primary legal issue before the Court was whether the deed of settlement and release, which purported to extinguish all claims between the parties, was effective to prevent Bodilson from pursuing a claim for equitable compensation. This involved considering the principles of contractual interpretation and the circumstances in which a release of equitable claims might be implied or expressly provided for.

Justice Obradovic reasoned that the language of the deed was clear and unambiguous in its intention to release all claims, both at law and in equity. The Court applied the principle that clear and unqualified words of release in a deed are to be given their full effect, unless there are compelling reasons to depart from the plain meaning of the text. The Court found no such reasons in this instance, noting that the parties were sophisticated and legally represented at the time the deed was executed.

The Court therefore held that the deed of settlement and release was effective to bar Bodilson's claim for equitable compensation.

Orders