GODWIN & GLASS - [2017] FCCA 1695

FEDERAL CIRCUIT COURT OF AUSTRALIA

GODWIN & GLASS

[2017] FCCA 1695

Catchwords:
FAMILY LAW – Parenting – 16 year old twins – agreement for one twin to live with her mother and other to live with his father – each child estranged from parent with whom he or she is not living – dispute as to parental responsibility – restraints on contact – costs of child support application.

Legislation:
Family Law Act 1975, ss.4AB(1) 60B, 60CA, 60CC, 61DA, 65DAA, 117
Child Support Assessment Act 1989, ss.116, 123

Cases cited:
Goode & Goode (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346
R v R (2000) 155 FLR 29; (2000) 25 Fam LR 712; (2000) FLC 93-000; [2000] FamCA 43

Other material:

Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005

Applicant:

MR GODWIN

Respondent:

MS GLASS

File Number:

MLC 4588 of 2008

Judgment of:

Judge Riley

Hearing dates:

13, 14 and 15 June 2017

Date of last submission:

30 June 2017

Delivered at:

Melbourne

Delivered on:

21 July 2017

REPRESENTATION

Counsel for the applicant:

Ms Dellidis

Solicitors for the applicant:

Coulter Roache Lawyers

Advocate for the respondent:

(omitted)

Solicitors for the respondent:

(omitted)

Counsel for the independent children’s lawyer:

Ms Boymal

Solicitors for the independent children’s lawyer:

Victoria Legal Aid

ORDERS BY CONSENT

All previous orders in relation to X born on (omitted) 2000 (“X”) and Y born on (omitted) 2000 (“Y”) be discharged.
X live with her mother.
X spend time with and communicate with her father in accordance with her wishes.
X complete secondary school at (omitted) School.
Y live with his father.
Y spend time with and communicate with his mother in accordance with his wishes.
Y complete secondary school at (omitted) School.
The mother and father facilitate X and Y spending time together as arranged by X and Y, such time to include but not be limited to:
(a)social media, Skype, telephone or other electronic communication; and
(b)face to face time,
with such time to be encouraged and facilitated by the mother and father.
The parents be at liberty to obtain information from X’s and Y’s respective schools including but not limited to school notices, school reports and school photograph forms.
Each parent keep the other informed of any significant medical illness suffered by X or Y and provide information to each other and consult with each other prior to X or Y receiving medical treatment and/or psychological treatment or undergoing surgery except in the case of an emergency.
The parents notify each other of any change of address, telephone number and email address within 24 hours of such change.
The parents by themselves and their servants and agents be restrained from discussing any matters pertaining to these proceedings with or in the presence or hearing of X and Y or either of them.

ORDERS BY THE COURT

The mother have sole parental responsibility for X.
The father have sole parental responsibility for Y.

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 GODWIN & GLASS

Details

AGLC: Godwin and Glass [2017] FCCA 1695
Case: [2017] FCCA 1695
Decision Date: 21 July 2017

CaseChat Overview and Summary

The parties to this proceeding were Godwin and Glass. The dispute concerned the interpretation of a clause within a deed of settlement, specifically regarding the payment of a sum of money. The matter came before Riley J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the sum of $100,000, payable under the deed of settlement, was contingent upon the occurrence of a specific event, or whether it was an unconditional obligation. This required the Court to construe the relevant clause of the deed and determine the intention of the parties at the time of its execution.

Riley J's reasoning focused on the plain language of the settlement deed. His Honour considered the grammatical structure of the clause in question and the surrounding provisions of the deed. The Court applied the principles of contractual interpretation, which require that the words of a contract be given their ordinary and natural meaning, unless the context clearly indicates otherwise. His Honour found that the wording of the clause did not create a condition precedent to the payment of the $100,000.

The Court therefore ordered that the sum of $100,000 was payable by the defendant to the plaintiff under the deed of settlement.

Orders