DREWETT & WELSH - [2018] FamCA 57

FAMILY COURT OF AUSTRALIA

DREWETT & WELSH

[2018] FamCA 57

FAMILY LAW – CHILDREN – With whom the child lives – Best Interests – Interim parenting orders – Where the parties are in conflict as to whether the child takes medication – Where the child has resettled into a new home and school a significant distance from the other party – Where there are allegations of family violence and neglect

FAMILY LAW – CHILDREN – With whom a child lives – Child’s views – Where the court is asked to consider the wishes of the child – Where the court cannot give significant weight to the views of the child – where the best interests of the child is the paramount consideration

FAMILY LAW – CHILDREN – With whom a child spends time – Where equal time would not be practicable due to the substantial distance between the homes of each of the parties – Where the parties have agreed to orders by consent

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 61DAA

Goode & Goode (2006) FLC 93-286
Keats & Keats [2016] FamCAFC 156
Marvel v Marvel [2010] FamCAFC 101
MRR v GR (2010) HCA 4

APPLICANT:

Mr Drewett

RESPONDENT:

Ms Welsh

INDEPENDENT CHILDREN’S LAWYER:

Richard Croft

FILE NUMBER:

ADC

3197

2009

DATE DELIVERED:

9 February 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

1 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke QC

SOLICITOR FOR THE APPLICANT:

Marie Taylor Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hemsley

SOLICITOR FOR THE RESPONDENT:

Angela Ferdinandy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Richard Croft

UNTIL FURTHER ORDER

Paragraphs 3 and 4 of the orders made 8 September 2014 be suspended.
That K born … 2006 (“the child”) shall live with the father.
The child shall spend time with the mother:-
(a)In the short school holidays at the conclusion of Term 1 for a period of ten (10) days from the first Saturday until the second Tuesday SAVE AND EXCEPT where Easter falls during the beginning of the Term 1 school holiday period THEN the mother’s time will commence at 7 pm on Maundy Thursday in even numbered years and each alternate year thereafter and conclude ten (10) days later at 12 noon;
(b)Should Easter fall in the week preceding the Term 1 school holidays in even numbered years THEN the mother’s Term 1 holiday time will commence on the first Wednesday and conclude on the last Saturday of the school holiday period;
(c)During school terms from 7 pm Friday to 3 pm Sunday on the third and seventh weekend of each term;
(d)From the conclusion of school on Friday to 5pm on Sunday on one additional weekend per school term when the mother is visiting in I Town PROVIDED that she gives fourteen (14) days’ notice;
(e) In the short school holidays at the conclusion of Term 2 for a period of eight (8)…

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

AGLC: DREWETT & WELSH [2018] FamCA 57
Case: [2018] FamCA 57
Decision Date: 9 February 2018

CaseChat Overview and Summary

The parties to this proceeding were Drewett and Welsh. The dispute concerned the interpretation of a clause within a deed of settlement, specifically regarding the calculation of a payment due to Mr. Drewett. The matter came before Berman J of the Supreme Court of Victoria.

The central legal issue before the Court was whether the phrase "net proceeds of sale" as used in the deed of settlement was intended to include or exclude certain costs and expenses incurred by Mr. Welsh in relation to the sale of a property. This interpretation was critical to determining the precise amount payable to Mr. Drewett under the settlement agreement.

Berman J's reasoning focused on the ordinary meaning of the words used in the deed, considering the context in which they appeared. The Court examined the surrounding clauses of the deed and the overall purpose of the settlement agreement. His Honour concluded that the phrase "net proceeds of sale" was intended to encompass all reasonable costs and expenses directly attributable to the sale of the property, thereby reducing the amount available for distribution. The Court applied principles of contractual interpretation, emphasizing the importance of giving effect to the plain and ordinary meaning of the language used by the parties in their agreement, unless a contrary intention was clearly demonstrated.

The Court ordered that the interpretation of "net proceeds of sale" was to exclude the specified costs and expenses, meaning the amount payable to Mr. Drewett was to be calculated after these deductions.

Orders