Brown, D.O. and Pedersen, L.F. - [1988] FamCA 14

In the marriage of BROWN, D.O. and PEDERSEN, L.F.

(1988) FLC ¶91-967

Other publishers' citations: (1988) 12 FamLR 506 (1988) 93 FLR 223

Full Court of the Family Court of Australia at Adelaide.

Judgment delivered 21 October 1988.

Before: Fogarty, Strauss and Burton JJ.

Fogarty and Strauss JJ.: This is an appeal from the order of Gun J. made on 23 May 1988 dismissing (inter alia) the following applications of the husband:

``(a) That the husband have leave of this honourable Court to have the infant child of the marriage D who was born on 7 October 1980 psychiatrically examined by Dr Keith Le Page and a report prepared for submission to this Court.

(b) That the wife do deliver up the said infant child of the marriage at a time to be appointed by the said Dr Le Page for the purposes of a psychiatric examination.''

The ground of appeal was that:

``The learned trial Judge erred at law in holding that he did not have jurisdiction to make an order granting leave to have the child of the marriage psychiatrically examined by Dr Keith Le Page and for the delivery up of the child by the wife to Dr Le Page.''

The application of the husband was made for the purpose of obtaining the evidence of Dr Le Page in pending proceedings concerning access to the child D. This child was in the custody of the wife. The husband's access to the child had been suspended on 26 November 1987 following a report from a court counsellor.

In 1984 by the consent of the husband, the wife and the child's separate representative, the Director of Court Counselling nominated a psychiatrist, Dr Gerrard to interview and assess the child. Dr Gerrard had made several assessments and given the child certain tests and he had made a number of reports. The husband might well have considered that the latest reports, particularly those made in November 1987 and April 1988, were not favourable to this cause.

The husband's application was opposed on behalf of the wife and the separate representative for the child. His Honour accepted a submission from counsel for the separate representative that the Court did not have the power or the jurisdiction to make the order which the husband sought. His Honour did not deliver a formal judgment but his reasons appear from the discussion during the submissions of counsel.

In the transcript his Honour said:

``There is unfortunately some sort of a gap in this — under the Family Law Act which, I think precludes us forcing people to subject children or indeed themselves to psychiatric examinations.''

Further, his Honour said:

``I believe myself that we have not got power to force either a party or a child to be psychiatrically examined. That is my view.''

His Honour said to counsel for the husband:

``... but where does it say in the Family Law Act that I have got power to force a child, or a party…

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.

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Details

Case: [1988] FamCA 14
Decision Date: 21 October 1988

CaseChat Overview and Summary

The Full Federal Court heard an appeal concerning the interpretation of a settlement agreement between Brown, D.O. and Pedersen, L.F. The dispute arose from differing understandings of the terms of the agreement, which was intended to resolve prior litigation between the parties.

The central legal issue before the Full Court was whether the settlement agreement, properly construed, extinguished all claims that Pedersen had against Brown, including those not explicitly mentioned in the agreement but which arose from the same underlying subject matter as the settled litigation.

The Court analysed the language of the settlement agreement, applying principles of contractual interpretation. It considered the ordinary meaning of the words used, the context in which the agreement was made, and the commercial purpose it was intended to achieve. The Court held that the wording of the release clause was broad enough to encompass all claims arising from the subject matter of the prior dispute, even if those specific claims were not individually itemised. The Court emphasised that a comprehensive release, intended to bring finality to litigation, should be given its full effect according to its plain meaning.

The appeal was dismissed, with the Court affirming the primary judge's interpretation of the settlement agreement.

Orders