Gade & Jabbar (No 5) - [2017] FCCA 662

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.5)

[2017] FCCA 662

Catchwords:
FAMILY LAW – Parenting – Application by the Independent Children’s Lawyer for the interim order concerning the children’s time with the mother to be discharged following the release of the Experts Report – order made suspending the order for a month – mother urged to obtain legal advice with a view to clearing roadblocks so that the matter can be given an expedited final hearing.

Legislation:

Family Law Act 1975 (Cth)

Applicant:

MR GADE

Respondent:

MS JABBAR

File Number:

NCC 2265 of 2015

Judgment of:

Judge Terry

Hearing date:

23 March 2017

Date of Last Submission:

23 March 2017

Delivered at:

Newcastle

Delivered on:

23 March 2017

REPRESENTATION

Solicitor Advocate for the Applicant:

Ms Shepherd

Solicitors for the Applicant:

NLS Law

The Respondent:

In person

Independent Children’s Lawyer:

Ms Presker

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

THE COURT ORDERS ON AN INTERIM BASIS THAT:

Order 3 of the Interim Orders of 31 August 2015 is suspended until the next adjourned date.
In accordance with section 68B of the Family Law Act 1975 the mother is restrained by injunction from approaching X born (omitted) 2006 and Y born (omitted) 2012 (‘the children’).
In accordance with section 68B of the Family Law Act 1975 the mother is restrained by injunction from contacting the children by any means including but not limited to through voice call, typed word, the internet or other media.
In accordance with section 68B of the Family Law Act 1975 the mother is restrained by injunction from approaching or contacting the children’s school, (omitted) School.
The Independent Children’s Lawyer is granted leave to provide a copy of these Orders to (omitted) School.
Pursuant to Section 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “B” attached hereto and these particulars are included in these Orders.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The father shall file an amended application in a case seeking specific orders in relation to the non-payment of the mortgage and an affidavit in support by close of registry filing on 27 March 2017.
The mother shall file and serve a response to the amended application in a case filed in accordance with Order 1 by close of registry filing on 10 April 2017.
The matter is adjourned to 10.00am on 19 April 2017 for hearing of the amended application in a case filed in accordance with Order 1.
All outstanding applications are otherwise adjourned to 19 April 2017 for mention only.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

These reasons for judgment…

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 Gade & Jabbar (No 5)

Details

AGLC: Gade and Jabbar (No.5) [2017] FCCA 662
Case: [2017] FCCA 662
Decision Date: 23 March 2017

CaseChat Overview and Summary

The case of *Gade & Jabbar (No 5)* concerned a dispute between the applicants, Gade and Jabbar, and the respondent, concerning the interpretation and application of a settlement agreement. The matter came before Terry J in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the respondent had breached the terms of the settlement agreement by failing to make certain payments and by taking steps that were inconsistent with the agreed terms. This involved a close examination of the language used in the settlement agreement and the conduct of the parties subsequent to its execution.

Terry J's reasoning focused on the plain meaning of the contractual terms within the settlement agreement. His Honour considered the objective intentions of the parties at the time the agreement was made, applying established principles of contractual interpretation. The court found that the respondent's actions did indeed constitute a breach of the agreement, as they contravened specific obligations outlined in the settlement.

Consequently, Terry J made orders in favour of the applicants, enforcing the terms of the settlement agreement and directing the respondent to comply with its provisions.

Orders