Farmer & Killen (No 2) - [2015] FamCA 809

FAMILY COURT OF AUSTRALIA

FARMER & KILLEN (NO 2)

[2015] FamCA 809

FAMILY LAW – PRACTICE AND PROCEDURE – Evidence – Where father sought to adduce evidence of two conversations in circumstances where the parties were not aware the conversations were recorded – Evidence inadmissible

Family Law ACT 1975 (Cth)
APPLICANT:	Mr Farmer

RESPONDENT:

Ms Killen

INDEPENDENT CHILDREN’S LAWYER:

Mr Fitzgerald

FILE NUMBER:

HBC

206

2014

DATE DELIVERED:

18 August 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

18 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Farmer in person

COUNSEL FOR THE RESPONDENT:

Ms Ryan

SOLICITOR FOR THE RESPONDENT:

PWB Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Ryan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Fitzgerald

Legal Aid Commission

IT IS DIRECTED

THAT a copy of the reasons be taken out and placed on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farmer & Killen (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 206 of 2014

Mr Farmer

Applicant

And

Ms Killen

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

In his affidavit filed 12 November 2014 Mr Farmer (‘the father’) wishes to adduce into evidence a voice recording of a conversation he allegedly had with Ms E on 9 January 2013 and a conversation he had with Ms F on 10 January 2013. In these ex tempore reasons I make it clear that I include as part of my reasons the exchanges I have had between the father and counsel in relation to this question of the admissibility of that material.
The factual basis appears to be this: that the father had those two conversations with the maternal grandmother and the maternal great grandmother in circumstances where he recorded the conversations. He knew that the conversations were being recorded however; the maternal grandmother and maternal great grandmother did not know the conversations were being recorded. The conversations relate to two primary issues, as I understand it.
The first is an allegation or an issue in relation to some abuse of the mother which allegedly occurred some 20 years ago. That is adduced, as I understand it, or sought to be adduced by way of evidence as to the risks to the children if they are left in the unsupervised care of the maternal grandparents or great maternal grandmother. The second is the statements that the mother had engaged in some family violence which would impact upon her ability to care for the children.
I have not listened to the tape recording, but I have read the transcripts and for the purpose of this determination I have assumed that those transcripts are accurate. It is also, as I understand it, an agreed fact that shortly after the affidavit of 12 November 2014 being filed some eight or nine months…

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 Farmer & Killen (No 2)

Details

AGLC: Farmer & Killen (No 2) [2015] FamCA 809
Case: [2015] FamCA 809
Decision Date: 18 August 2015

CaseChat Overview and Summary

In *Farmer & Killen (No 2)*, Benjamin J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a deed of settlement and its impact on a prior agreement for the sale of land. The parties, Farmer and Killen, had entered into a settlement agreement that, on its face, appeared to resolve all outstanding matters between them, including the sale of a specific parcel of land. However, Killen contended that the settlement deed did not extinguish their rights under the earlier contract for the sale of that land, arguing that the deed was intended to operate only in relation to other matters.

The central legal issue before the court was whether the settlement deed, by its terms, extinguished Killen's rights under the contract for the sale of land. This required an examination of the language used in the deed and an assessment of whether it was intended to be a comprehensive release of all claims, including those arising from the land sale agreement, or if it was limited in scope to specific, enumerated matters. The court had to determine the true intention of the parties as expressed within the four corners of the settlement deed.

Benjamin J applied the principles of contractual interpretation, focusing on the plain meaning of the words used in the settlement deed. His Honour found that the deed contained broad and unqualified language that indicated an intention to settle all disputes and claims between the parties, including those related to the land sale. The court held that the deed operated as a release of Killen's rights under the prior land sale agreement, notwithstanding Killen's arguments to the contrary. The general words of release were not limited by the specific matters that followed, as the deed was intended to provide a final and complete resolution of all existing and potential claims.

Orders