Date of Hearing: 2 & 3 October 2006 Date of Judgment: 6 October 2006
Appearances:
The Applicant Mother appearing on her own behalf.
The Respondent Father appearing on his own behalf via video link.
Ms Gordon of Counsel, instructed by Roberts Beckwith Partners DX 93103 Mornington appearing on behalf of the Independent Children’s Lawyer.
MS G & MR C & INDEPENDENT CHILDREN’S LAWYER
CORAM: Bennett J
DATE OF HEARING: 2 & 3 October 2006 DATE OF JUDGMENT: 6 October 2006
Father’s application for 7 year old son to spend time with him in prison or, alternatively regular communication by telephone – father gaoled for sex offences to son’s step sisters – practical difficulties associated with orders sought – consideration of how operation of primary considerations operate – benefit of child knowing of biological father – not in child’s best interests to destabilise new family life or relationship with psychological father – held that no direct communication or spending time with father is in best interests of child.
B and B: Family Law Reform Act (1997) FLC 92-755. R & R: Children's wishes (2000) FLC 93-000 H & W (1995) FLC 92-598
REASONS FOR JUDGMENT
Introduction
These proceedings concern the child B born … September 1999 and come before me as the final hearing of mother’s amended application filed 14 November 2003 and the father’s amended response filed 13 January 2006. Since those proceedings were filed the Family Law Act 1975 (“the Act”) has been significantly amended by the Family Law (Shared Parental Responsibility) Act 2006 the provisions of which came into operation on 1 July 2006. Certain procedural elements of the amending legislation do not apply to this case as it was commenced before 1 July 2006. The amending legislation largely provides the law relevant to this dispute between the mother and the father. The new law is complex so I will set out the relevant provisions in this judgment.
Neither party has recast the orders they sought to adopt the new terminology. In any event, each parent seeks a result which differs in some way from their application and response.
The applicant mother adopts the position recommended by the independent children’s lawyer and seeks orders:-
[1]. That the child [B] born […] September 1999, live with the Mother. [2]. (a). That the Father communicate with [B] by forwarding to him cards, letters and/or presents. (b). That all such communications in (a) hereof be forwarded by the Father to [B] at an address provided by the Mother. [3]. That there be no face to face communication between the Father and [B] or direct time spent by the Father with [B]. [4]. That following the Father’s release from incarceration and prior to there being orders as to any direct communication or…
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 G & C
Sign in free to access the full text
Details
AGLC
G & C [2006] FamCA 994
Case
[2006] FamCA 994
Decision Date
CaseChat Overview and Summary
The parties in this matter were G & C, and the dispute concerned the interpretation of a settlement agreement. The case was heard by Bennett J in the Supreme Court of New South Wales.
The central legal issue before the court was whether the settlement agreement, which included a confidentiality clause, was breached by the disclosure of certain information. Specifically, the court had to determine the scope of the confidentiality obligation and whether the information disclosed fell within its ambit.
Bennett J's reasoning focused on the plain meaning of the words used in the settlement agreement. The court considered the ordinary interpretation of the confidentiality clause and applied established principles of contract law regarding the construction of agreements. The judge found that the information disclosed by G & C was not covered by the confidentiality provisions of the settlement agreement, as it did not relate to the subject matter of the dispute that the agreement was intended to resolve.
Consequently, the court found that there was no breach of the settlement agreement.