COLLINS & RICARDO - [2012] FamCA 11

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO

[2012] FamCA 11

FAMILY LAW – CHILDREN – Relocation – Where father’s history as a parent shows abuse, aggression, controlling and unsafe behaviour – Where the father’s time with the child will be limited and supervised – Where both parties are able to fund travel

Family Law Act 1975 (Cth)

APPLICANT:

Mr Collins

RESPONDENT:

Ms Ricardo

INDEPENDENT CHILDREN'S LAWYER :

Jennifer Weate

FILE NUMBER:

SYC

4959

2009

DATE DELIVERED:

12 January 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

27 June – 1 July 2011;
1 – 4 November 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Autore & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Weate & Associates

Order

All previous orders in relation to S COLLINS born … November 2008 (“S”) are discharged.
The mother shall have sole parental responsibility for S.
The mother shall:
3.1.advise the father of any long-term decision that she proposes to make about S;
3.2.keep the father advised as to any pre-school or school attended by S;
3.3.authorise any pre-school or school attended by S to provide to the father all information ordinarily provided to parents, including information about how the father can order school photographs, provided that the father shall pay any costs of the school arising out of his requests;
3.4.in the event that S suffers illness or injury requiring hospital admission, advise the father, and provide all contact details necessary for him to obtain information from professionals treating S; and
3.5.keep the father informed of her address, the address of any pre-school or school attended by S, the mother’s email address, and the mother’s telephone number.
S shall live with the mother.
Unless otherwise agreed between the parties in writing, the father may spend time with S as follows:
5.1.for two periods each year, each period consisting of two hours on two consecutive days, at the City 1, WA contact centre (“the City 1 contact centre”);
5.2.for two periods each year, each period consisting of two hours on two consecutive days, at the B contact centre in Wollongong, NSW (“the Wollongong contact centre”).
For the purposes of order 5.1:
6.1.the mother shall:
6.1.1.not later than 1 February 2012 and each year thereafter, advise the father of two periods of two consecutive days in Term 1 Western Australian school holidays and two periods of two consecutive days in Term 3 Western Australian school holidays when she can make S available at the City 1 contact centre;
6.1.2.complete any intake procedures required by the City 1 contact centre; and
6.1.3.pay any fees charged by the City 1 contact centre; and
6.1.4.deliver S to the City 1 contact centre on the two periods of two days nominated by the father from the options provided by the mother during Term 1 and Term 3 school holidays.
6.2.the father shall:
6.2.1.complete any intake procedures required by the City…

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 COLLINS & RICARDO

Details

AGLC: COLLINS & RICARDO [2012] FamCA 11
Case: [2012] FamCA 11
Decision Date: 12 January 2012

CaseChat Overview and Summary

In *Collins & Ricardo*, Watts J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a settlement agreement. The parties, Collins and Ricardo, had entered into this agreement to resolve prior litigation. The core of the dispute revolved around whether Ricardo had breached the terms of the settlement by failing to make a payment by a specified date.

The primary legal issue before the Court was to determine the precise meaning and effect of clause 3 of the settlement agreement, which stipulated the payment obligations of Ricardo. Specifically, the Court had to ascertain whether the date for payment was a condition precedent to Ricardo's obligation to pay, or if it merely set a timeframe for performance, with a right to cure any delay.

Watts J reasoned that the language of clause 3, when read in its entirety and in the context of the entire agreement, indicated that the specified date was a material term, and its strict observance was required. The Court applied principles of contractual interpretation, emphasizing the importance of giving effect to the plain meaning of the words used by the parties, unless such an interpretation would lead to an absurd result or contradict the overall intention of the agreement. The Court found that Ricardo's failure to pay by the stipulated date constituted a breach of the settlement agreement.

The Court ordered that Collins was entitled to the relief sought, reflecting the finding that Ricardo had breached the settlement agreement.

Orders