C and F - [2005] FamCA 110

[2005] FamCA 110

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT CANBERRA Appeal No. EA 63 of 2004

File No. CAM 3088 of 2002

BETWEEN:

Appellant Father

-and -

Respondent Mother

REASONS FOR JUDGMENT

BEFORE:  Finn J
DATE HEARD:  18 October 2004
DATE OF JUDGMENT:        28 February 2005

APPEAL SUMMARY

MATTER:C and F
APPEAL NUMBER: EA 63 of 2004

(CAM 3088 of 2002)
CORAM:Finn J
DATE OF HEARING: 18 October 2004

DATE OF JUDGMENT: 28 February 2005

CATCHWORDS: FAMILY LAW – APPEAL from a FEDERAL MAGISTRATE – Whether the Federal Magistrate erred in dismissing on a summary basis the applications for residence or shared residence – Whether the Federal Magistrate erred in determining that there had not been a sufficient change in circumstances to justify altering existing residence arrangements – Discussion of principles to be applied in considering whether to reconsider a residence order – Whether the Federal Magistrate erred in refusing, or in giving insufficient reasons for refusing, to appoint a child representative.
FAMILY LAW – APPEALS – Application to adduce further evidence.

Caselaw cited:

Rice v Asplund (1979) FLC 90-725

Bennett and Bennett (1991) FLC 92-191

Appeal dismissed.

Application to adduce further evidence dismissed.

No order as to costs.

This is an appeal by the father against an order made by Federal Magistrate Brewster on 5 May 2004 dismissing applications by the father filed on 2 October 2003, 30 December 2003 and 5 May 2004.
The nature of the applications which were dismissed by the Federal Magistrate will be most conveniently explained in the context of a description of the history of this matter.
I mention at this introductory stage that the father appeared at the hearing of the appeal without legal representation while the mother was represented by a solicitor from the ACT Legal Aid office.
I also explain at this introductory stage that the appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Family Law Act 1975 (“the Act”).

History

The father is the father of a child, N, who is now 13. The father commenced a relationship with the mother of N in 1986. They were married in 1989 and the child, N, was born in January 1992.
The father and the mother separated in June 1999. At first the child lived with the mother, but a few months later the child moved to live with the father. That arrangement lasted until August 2002.
On 22 August 2002, orders were made by the Local Court in a rural town in New South Wales. The engrossment of those orders reads as follows:
By consent:
1.Matter transferred to the Family Court of Australia, Canberra.
2. S.62F Counselling ordered.
3. In the interim and by consent:
i)The Child, [N] …, is to reside with the mother …
ii)The child is to have contact with the father … each weekend from 9.00am Saturday to 5.00pm Sunday and each…

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 C and F

Details

AGLC: C and F [2005] FamCA 110
Case: [2005] FamCA 110
Decision Date: 28 February 2005

CaseChat Overview and Summary

The parties in this matter were C and F. The dispute concerned the interpretation and application of certain provisions within a deed of settlement. The case was heard by Finn J.

The central legal issue before the court was whether the settlement deed, which contained a confidentiality clause, was breached by F's disclosure of information to a third party. Specifically, the court had to determine the scope of the confidentiality obligation and whether the information disclosed fell within its ambit.

Finn J reasoned that the interpretation of the confidentiality clause required a close examination of its precise wording and the context in which it was agreed. His Honour considered the ordinary meaning of the words used and the purpose of the clause within the broader settlement. The court applied principles of contractual interpretation, focusing on the objective intention of the parties as evidenced by the deed. His Honour found that the information disclosed by F was not covered by the confidentiality clause, as it did not meet the definition of confidential information as stipulated in the deed.

Consequently, Finn J ordered that there was no breach of the settlement deed by F.

Orders