HALLIS & KIMPER - [2019] FCCA 1292

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALLIS & KIMPER

[2019] FCCA 1292

Catchwords:
FAMILY LAW – Interim parenting – best interests of the child – orders made.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36

Applicant:

MR HALLIS

Respondent:

MS KIMPER

File Number:

PAC 4767 of 2018

Judgment of:

Judge Newbrun

Hearing date:

2 April 2019

Date of Last Submission:

2 April 2019

Delivered at:

Parramatta

Delivered on:

21 May 2019

REPRESENTATION

Solicitors for the Applicant:

Mr Carlo of Calvin Nelson & Co Lawyers & Tax Agents

Solicitors for the Respondent:

Ms Abercrombie of Lamrocks Solicitors

ORDERS PENDING FURTHER ORDER

All previous parenting Orders are discharged, with the exception of the following Orders within Exhibit A of the Court’s Orders of 12 November 2018: Orders 2(e), 7, 8, and 9.
The child shall live with the mother.
The parties shall have equal shared parental responsibility for the child [X] born … 2017.
For a period of four months from the date of these Orders, the child shall spend time with the father in a two weekly cycle as follows:
(a)Week 1: Saturday from 4:30 pm to Sunday at 5:30 pm, such time to commence on the same weekend that the father has contact with his child of a previous relationship, namely, [A] (“[A]”), born on … 2010;
(b)Week 2: Thursday from 4:30 pm to 6:30 pm.
Following the conclusion of the above Order, for a period of two months, the child is to spend time with the father on a two weekly cycle as follows:
(a)Week 1: Saturday from 9:00 am to Sunday at 5:30 pm, such time to commence on the same weekend that the father has contact with his child of a previous relationship, namely, [A] (“[A]”), born on … 2010;
(b)Week 2: Thursday from 4:30 pm to 6:30 pm.
Following the conclusion of the above Order, the child is to spend time with the father on a two weekly cycle as follows:
(a)Week 1: Friday from 4:30 pm to Sunday at 5:30 pm, such time to commence on the same weekend that the father has contact with his child of a previous relationship, namely, [A] (“[A]”), born on … 2010;
(b)Week 2: Thursday from 4:30 pm to 6:30 pm.
In relation to the child spending time with the father on a Thursday or on her birthday, unless otherwise agreed in writing between the parties, the father shall collect and return the child from the mother’s residence at the commencement and conclusion of his time with the child.
In relation to the child spending overnight time with the father, unless otherwise agreed in writing between the parties, the father shall collect the child from the mother’s residence at the commencement of his time, and the mother shall collect the child from the father’s residence at the conclusion of the…

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 HALLIS & KIMPER

Details

AGLC: Hallis and Kimper [2019] FCCA 1292
Case: [2019] FCCA 1292
Decision Date: 21 May 2019

CaseChat Overview and Summary

In the matter of *Hallis & Kimper*, Newbrun J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a deed of settlement. The applicants sought to enforce certain terms of the deed, while the respondents contended that those terms were unenforceable due to alleged breaches of contract and misrepresentation. The core of the disagreement lay in the parties' respective obligations and entitlements arising from the settlement agreement.

The primary legal issues before the Court were whether the respondents had breached the deed of settlement and, if so, whether those breaches vitiated the enforceability of the terms the applicants sought to rely upon. The Court was also required to determine the proper construction of the relevant clauses within the deed, particularly in light of the surrounding circumstances and the parties' conduct.

Newbrun J's reasoning focused on the principles of contractual interpretation, emphasizing the importance of giving effect to the plain meaning of the words used in the deed, unless such a construction would lead to an absurd result or was clearly contrary to the parties' intentions. The Court examined the evidence presented by both parties regarding the alleged misrepresentations and breaches, ultimately finding that the respondents had not established a sufficient basis to avoid their obligations under the deed. The Court applied established principles of contract law regarding the formation and enforcement of settlement agreements.

The Court made orders in favour of the applicants, directing the respondents to comply with the terms of the deed of settlement.

Orders