Downing & Marinos - [2019] FCCA 881

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWNING & MARINOS & ANOR

[2019] FCCA 881

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks (2015) FamCAFC 36

Applicant:

MS DOWNING

First Respondent:

MS MARINOS

Second Respondent:

MR DONOVAN

File Number:

PAC 668 of 2016

Judgment of:

Judge Newbrun

Hearing date:

4 April 2019

Date of Last Submission:

4 April 2019

Delivered at:

Parramatta

Delivered on:

5 April 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Birtles of Birtles Legal

Solicitors for the First Respondent:

Mr De Mattia of John R De Mattia & Company

No appearance by the Second Respondent

Solicitors for the Independent Children’s Lawyer

Mr Samuel of Brian Samuel & Associates

ORDERS PENDING FURTHER ORDER

Commencing Saturday, 22 June 2019, the children [X] born … 2010 and [Y] born … 2012 shall spend time with the paternal grandmother on the third weekend of each month, from 10 am Saturday to 4 pm Sunday, with changeover to occur at the Suburb A residence of the paternal grandmother’s daughter Ms B.
The mother’s proposed Order seeking a variation of Order 11 of the Court’s Orders of 30 January 2019 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Downing & Marinos & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 668 of 2016

MS DOWNING

Applicant

And

MS MARINOS

First Respondent

And

MR DONOVAN

Second Respondent

REASONS FOR JUDGMENT

At the mention of this matter on 4 April 2019, the mother requested the Court to determine the issue of the variation of Order 11 of the Court’s Orders of 30 January 2019. That Order provided that pending further Order, by consent, the mother shall take all necessary steps to ensure that the children do not come into contact with Mr C. It is noted that Mr C is not the biological father of the subject children (see immediately below) but is the biological father of the child [D] born … 2017. The mother is the biological mother of that child. The mother sought the variation so as to permit Mr C to spend time with [D].
The mother (ultimately following submissions) sought a variation as follows (deleting the existing Order 11):
Pending further Order, the mother is permitted to allow Mr C to come into contact with the children [X] born … 2010 and [Y] born … 2012 [the subject children] on not more than three occasions each week, with two of such three occasions to occur on the weekend during the daytime, and with the mother to be present during any such contact.
The paternal grandmother opposed the above proposed variation.
The Independent Children’s Lawyer’s (“ICL’s”) initial position was that Mr C should visit [D] during school hours, when…

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 Downing & Marinos

Details

AGLC: Downing and Marinos and Anor [2019] FCCA 881
Case: [2019] FCCA 881
Decision Date: 5 April 2019

CaseChat Overview and Summary

In the matter of *Downing & Marinos*, Newbrun J of the Supreme Court of New South Wales considered a dispute between the applicant, Mr. Downing, and the respondent, Mr. Marinos. The application concerned the interpretation and enforcement of a deed of settlement and release.

The central legal issue before the Court was whether Mr. Marinos had breached the terms of the deed by failing to make a payment due to Mr. Downing. This required the Court to determine the proper construction of the relevant clauses within the deed, particularly those relating to the payment obligations and the conditions precedent to those obligations.

Newbrun J analysed the language of the deed, applying principles of contractual interpretation. The Court considered the ordinary meaning of the words used, the context in which they appeared, and the overall purpose of the deed. His Honour found that the conditions precedent to Mr. Marinos's payment obligation had not been satisfied, and therefore, Mr. Marinos was not in breach of the deed. The Court concluded that the obligation to pay was contingent on events that had not occurred.

Orders