GOLDSWORTHY & GOLDSWORTHY - [2017] FCCA 2101

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOLDSWORTHY & GOLDSWORTHY

[2017] FCCA 2101

Catchwords:
FAMILY LAW – Interim parenting – 4 children – best interest considerations.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Banks & Banks [2015] FamCAFC 36
Bondelmonte v Bondelmonte & Another [2017] HCA 8
Goode v Goode (2007) 36 FamLR 422
Howard & Howard [2016] FamCA 455
Keats & Keats [2016] FamCAFC 156
McCall & Clark [2009] FamCAFC 92
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1

Applicant:

MR GOLDSWORTHY

Respondent:

MS GOLDSWORTHY

File Number:

PAC 1211 of 2016

Judgment of:

Judge Obradovic

Hearing date:

10 August 2017

Date of Last Submission:

10 August 2017

Delivered at:

Parramatta

Delivered on:

5 September 2017

REPRESENTATION

Counsel for the Applicant:

Ms Picket

Solicitors for the Applicant:

Peter Dawson & Associates

Counsel for the Respondent:

Mr Heazlewood

Solicitors for the Respondent:

Lees & Givney

PENDING FURTHER ORDER

The parties shall have equal shared parental responsibility for the children:
(a)W born (omitted) 2002;
(b)X born (omitted) 2008;
(c)Y born (omitted) 2008; and
(d)Z born (omitted) 2013.
The children shall live with the mother.
X, Y and Z shall spend time with the father as follows:
(a)During school term and commencing on Friday, 8 September 2017 and each alternate Friday thereafter from after school to 7pm on Sunday;
(b)During school term and commencing on Monday, 18 September 2017 and each alternate Monday thereafter, from after school to 7pm;
(c)During school holidays at the conclusion of Term 3 in 2017, from the conclusion of school on Friday to 5pm on the middle Saturday of such school holiday period; and
(d)During school holidays at the conclusion of Term 4 in 2017, from 12 noon on 25 December 2017 to 12 noon on 31 December 2017, and from 12 noon on 6 January 2018 to 12 noon on 14 January 2018.
W shall spend time with the father as follows:
(a)Commencing on Monday, 11 September 2017 from after school (or 3pm) to 7pm (including during any school holiday period); and
(b)Otherwise in accordance with her own wishes, including at all times that the other three children are spending time with the father pursuant to order 3 above.
The children shall communicate with the father by telephone each Wednesday and Friday between 5.30pm and 6pm, when they are not otherwise spending time with the father.
Notwithstanding any other order, the children shall spend time on their birthday with the parent with whom they are not otherwise spending time that day for a minimum of three hours as agreed between the parties, but failing agreement from 4pm to 7pm.
For the purposes of facilitating time between the children and the father pursuant to these orders, the father will collect the children from the children’s school or the mother’s home as appropriate at the commencement of the time, and the mother will collect the children from the father’s…

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: Goldsworthy and Goldsworthy [2017] FCCA 2101
Case: [2017] FCCA 2101
Decision Date: 5 September 2017

CaseChat Overview and Summary

In the matter of *Goldsworthy & Goldsworthy*, the Supreme Court of Queensland, constituted by Obradovic J, considered a dispute between the parties concerning the interpretation and application of a deed of settlement. The core of the disagreement revolved around whether certain payments made by one party constituted a breach of the terms of that deed.

The primary legal issue before the Court was to determine the proper construction of clause 5 of the deed of settlement, specifically whether the payments made by the respondent fell within the scope of the restrictions imposed by that clause. This required the Court to consider the intention of the parties at the time the deed was executed and the plain meaning of the words used within the contractual document.

Obradovic J reasoned that the interpretation of the clause depended on a careful analysis of its language in light of the surrounding circumstances and the purpose of the settlement. The Court applied established principles of contractual interpretation, emphasising that the words of the deed should be given their ordinary and natural meaning unless that leads to an absurd result. After considering the submissions and the evidence, the Court concluded that the payments made by the respondent did not breach the terms of clause 5 of the deed.

Consequently, the Court dismissed the applicant's application.

Orders