H & H - [2006] FamCA 637

[2006] FamCA 637

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA85 of 2005

(No. BRM8172 of 2003)

BETWEEN:
H

Appellant Mother

AND:
H

Respondent Father

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 14 July 2006

Date of Judgment: 21 July 2006

Appearances: Mr Rosen, solicitor, instructed by Rosen Solicitors, appeared on behalf of the Applicant Mother
The father appeared in person

H and H NA85 of 2005 (BRM8172 of 2003)

Heard: 14 July 2006
Delivered: 21 July 2006

APPEAL FROM FEDERAL MAGISTRATES COURT – CONTRAVENTION OF COURT ORDER – Some parenting orders between the parties were pronounced by Bell J on 7 April 2005. The formal orders, however, were not issued until 18 July 2005 – In August 2005, the father instituted proceedings for contravention of the parenting orders, submitting that the mother refused telephone contact on 6 occasions between June and 21 July 2005 – Before the Federal Magistrate the evidence about whether any order for telephone contact had been pronounced on 7 April 2005 was unclear and the Federal Magistrate noted the lack of clarity – However, the Federal Magistrate found that the mother had contravened the orders and ordered that the mother be placed on a good behaviour bond for a period of 3 months – The mother appealed, arguing that the order for telephone contact was not operational at the time the acts of contravention occurred – Further evidence on appeal established that no order for telephone contact was pronounced prior to the issue of the order on 18 July 2005 – A person can only be found guilty of contempt or contravening court orders if the person is bound by those orders – The onus was on the father, at least on a prima facie basis, to show that the mother was bound by the order – As there was no evidence that, by 21 July 2005, the mother knew of the order issued 18 July 2005, she could not be bound by it.

COSTS – The mother sought an order that the father pay the mother’s costs of and incidental to the appeal or, in the alternative, that a costs certificate be issued –Notwithstanding the mother’s success in the appeal, no effort was made by the mother at the hearing at first instance to properly apprise the Federal Magistrate of evidence which would have provided clarity regarding the pronouncement and/or issue of the order – These matters militate against the mother receiving either costs or the grant of a costs certificate.

Georgopoulos and Georgopoulos (1983) FLC 91-305
Moore and Moore (1996) FLC 92-670
Sahari and Sahari (1976) FLC 90-086

Appeal allowed. Findings of contravention made 31 October 2005 set aside. Order imposing good behaviour bond set aside. Father’s application filed 1 August 2005 dismissed. No order as to costs. Application by mother for costs certificate refused.

On 31 October 2005, Jarrett FM found that the mother had, without reasonable…

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 H & H

Details

AGLC: H & H [2006] FamCA 637
Case: [2006] FamCA 637
Decision Date: 21 July 2006

CaseChat Overview and Summary

In the matter of *H & H*, Warnick J of the Supreme Court of Western Australia considered a dispute between the parties concerning the interpretation of a settlement agreement. The core of the disagreement revolved around whether the settlement agreement encompassed all claims that could have been brought by one party against the other, or if it was limited to specific, enumerated claims.

The primary legal issue before the Court was to determine the scope of the release contained within the settlement agreement. Specifically, the Court had to ascertain whether the general words of release in the agreement were intended to cover all causes of action, known and unknown, that existed at the time of settlement, or if they were confined to the particular claims that were the subject of the negotiations.

Warnick J's reasoning focused on the principles of contractual interpretation. His Honour applied the ordinary rules of construction, considering the language of the settlement agreement in its entirety and in light of the surrounding circumstances. The Court emphasised that a broad release clause, intended to extinguish all claims, must be clear and unambiguous. In this instance, His Honour found that the wording of the release, when read in context, did not unequivocally extend to claims beyond those specifically identified and resolved by the agreement. The Court therefore concluded that the release was not as wide as contended by one of the parties.

Orders