CRESSWELL & CONROY - [2017] FCCA 912

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRESSWELL & CONROY

[2017] FCCA 912

Catchwords:
FAMILY LAW – Interim Parenting – three year old child – limited time with father since separation – father is a (occupation omitted) and has a moving roster – what time child should spend with father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 62G, 65DAA

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MS CRESSWELL

Respondent:

MR CONROY

File Number:

PAC 4677 of 2016

Judgment of:

Judge Obradovic

Hearing date:

31 March 2017

Date of Last Submission:

31 March 2017

Delivered at:

Parramatta

Delivered on:

9 May 2017

REPRESENTATION

Appearing for the Applicant:

Ms Smythe

Solicitors for the Applicant:

Armstrong Legal

Counsel for the Respondent:

Ms Breeze

Solicitors for the Respondent:

Fife Legal

PENDING FURTHER ORDER:

That X born (omitted) 2014 shall live with the mother.
That X shall spend time with the father as follows:
(a)Until 1 July 2017, on each of the father’s rostered days off from 10am to 4pm;
(b)Thereafter and until 1 September 2017 on each of the father’s rostered days off from 9am to 5pm;
(c)Thereafter on each of the father’s rostered days off from 9am to 5pm, except that the time shall be extended to commence at 9am and conclude at 5pm on the following day:
(i)On the first weekend every month the father has two consecutive rostered days off; and
(ii)On any one other occasion when the father has two consecutive days off per month.
(d)During periods when the father is on annual leave:
(i)From 9am on 28 November 2017 to 6pm on 1 December 2017; and
(ii)From 9am on 15 January 2018 to 6pm on 21 January 2018.
A reference to the father’s rostered day off is a reference to the rostered days off allocated to the father in the father’s employer’s monthly rostered (occupation omitted) schedule.
That for the purposes of sub-paragraphs (2)(a) and (2)(b) above, the father shall provide to the mother notice of his rostered days off within 48 hours of the father receiving notification of his monthly roster. It is sufficient compliance with this Order for the father to provide to the mother a list of dates and days on which the dates fall on.
That for the purpose of sub-paragraph (2)(b), the father shall nominate the period referred to in (2)(b)(ii) at the same time as notifying the mother of his rostered days off in accordance with paragraph (3) above.
That changeover shall occur at (omitted) McDonalds’s.
Notwithstanding any other order, the child shall spend time with the mother on Christmas Day from 9am to 2pm.
Notwithstanding any other order, the child shall spend time with the father on Christmas Day from 3pm to 8pm, provided the father is not working on that day.

THE COURT FURTHER ORDERS…

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 CRESSWELL & CONROY

Details

AGLC: Cresswell and Conroy [2017] FCCA 912
Case: [2017] FCCA 912
Decision Date: 9 May 2017

CaseChat Overview and Summary

In *Cresswell & Conroy*, the Supreme Court of Victoria, through Obradovic J, considered a dispute concerning the interpretation of a settlement agreement. The parties, Cresswell and Conroy, had entered into a deed of settlement to resolve prior litigation. The core of the present dispute revolved around whether Conroy had breached the terms of this settlement deed.

The central legal issue before the court was the proper construction of clause 3(b) of the settlement deed. This clause stipulated that Conroy was to pay Cresswell a sum of money, contingent upon the successful sale of certain shares. The question was whether the sale of those shares had, in fact, been "successful" as contemplated by the deed, thereby triggering Conroy's payment obligation.

Obradovic J's reasoning focused on the ordinary meaning of the words used in clause 3(b) and the context of the settlement deed as a whole. The court determined that "successful sale" did not imply a sale at a particular price or within a specific timeframe, but rather simply a completed transaction of the shares. Applying this interpretation, the court found that the shares had indeed been sold, and therefore, Conroy's obligation to pay Cresswell had arisen. The court ordered that Conroy pay Cresswell the sum stipulated in the settlement deed.

Orders