GUTHRIE & WEBB - [2015] FCCA 1353

FEDERAL CIRCUIT COURT OF AUSTRALIA

GUTHRIE & WEBB

[2015] FCCA 1353

Catchwords:
FAMILY LAW – Parenting – interim hearing – whether there should be no contact or supervised contact – two and a half year old child allegedly resisting time with her father pursuant to consent orders – no objective evidence of risk of harm to child.

Legislation:

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

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant:

MS GUTHRIE

Respondent:

MR WEBB

File Number:

WOC 341 of 2013

Judgment of:

Judge Altobelli

Hearing date:

23 April 2015

Date of Last Submission:

23 April 2015

Delivered at:

Wollongong

Delivered on:

4 May 2015

REPRESENTATION

Solicitors for the Applicant:

Paladin Law

Solicitors for the Respondent:

Verekers Lawyers

Solicitors for the Independent Children's Lawyer:

Maguire & McInerney

ORDERS PENDING FURTHER ORDER

That the parties sign all documents within 7 days necessary to effect the intake assessment for Catholic Care (omitted);
That the child X born (omitted) 2012 spend time with the father for two hours each week supervised by Catholic Care at such times as nominated by Catholic Care.
Each parent is to comply with the following:
(a) Appointments made by Catholic Care for supervised time;
(b) Comply with all reasonable rules of Catholic Care;
(c)Comply with all reasonable requests for directions by the staff of the Catholic Care.
If after the assessment intake procedure, Catholic Care is unwilling or unable to provide supervision as set out herein, then each party has leave to restore the matter to the list within 7 days written notice to the Court and to the other party.
That Catholic Care may recommend the parties or either of them to participate in a program or programs and in that event, either party may re-list the matter for mention on 3 days notice.
If Catholic Care during the currency of these Orders declines or is unable to continue to provide its services, or the director of Catholic Care recommends in writing to the parties a variation of these Orders then either party may on 7 days written notice to either party and the Court restore the matter to the list.
The period of contact provided in these Orders may vary by reason of the closure of the Catholic Care services during school and public holiday periods and in such event, such contact shall occur at times when the service can be provided by the Catholic Care.
That the proceedings be stood over for a period of time to allow the supervised time to be conducted and Catholic Care provide a written report on the progress of the interaction between the father and the child and the proceedings be listed for further mention to monitor.

FURTHER ORDERS

The matter be adjourned to 14 September 2015 at 9:00am for Mention. If the report is available, the parents are to attend with their legal representatives.
The matter be listed for a 3 day Final hearing commencing 11 April…

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: GUTHRIE & WEBB [2015] FCCA 1353
Case: [2015] FCCA 1353
Decision Date: 4 May 2015

CaseChat Overview and Summary

Altobelli J of the Supreme Court of New South Wales considered a dispute between Guthrie and Webb concerning the interpretation of a deed of settlement. The core of the disagreement lay in whether Webb was entitled to receive a further payment under the deed, contingent on the successful sale of a property. Guthrie contended that the conditions for this further payment had not been met, while Webb asserted they had.

The primary legal issue before the Court was to determine the proper construction of clause 3(b) of the deed of settlement. This clause stipulated that Webb would receive an additional sum of $100,000 if the property was sold for a price exceeding $1.5 million, with the sale to be completed by a specified date. The Court had to ascertain whether the sale, which occurred after the stipulated date but was negotiated prior to it, satisfied the conditions for the additional payment.

Altobelli J analysed the language of clause 3(b) in light of established principles of contractual interpretation. His Honour considered the plain meaning of the words used, the context of the entire deed, and the commercial purpose it was intended to achieve. The Court found that the clause required not only the negotiation of a sale but also the completion of that sale by the specified date. As the completion date had passed before the sale was finalised, the condition precedent for the additional payment was not satisfied. Consequently, Webb was not entitled to the further sum of $100,000.

Orders