Harvey & Harvey - [2018] FamCA 516

FAMILY COURT OF AUSTRALIA

HARVEY & HARVEY

[2018] FamCA 516

FAMILY LAW – ORDERS – Contravention – Findings as to contraventions of parenting orders – order for a family report – appointment of an ICL preparatory to usual applications to vary parenting orders – requirement to hear the views of the children.

APPLICANT:

Mr Harvey

RESPONDENT:

Ms Harvey

INDEPENDENT CHILDREN’S LAWYER:

Ms A Altavilla

FILE NUMBER:

MLC

2362

2014

DATE DELIVERED:

16 July 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

6 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cash

SOLICITOR FOR THE APPLICANT:

F D Mapleston

COUNSEL FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Altavilla Family Law

Order One

IT IS ORDERED THAT:

(1)That pursuant to Section 68L(2) of the Family Law Act 1975 the children D born … 2003, E born … 2005 and F born … 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation urgently so that they may attend court as soon as practicable this afternoon and also future potential hearing dates.
(2)That forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.
(3)That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

IT IS DIRECTED:

(4)    That my Court Officer prepare a photocopy of the documents relevant to the Contravention Applications filed 7 May 2018 and 23 May 2018 respectively and inclusive of the mother’s affidavit in reply filed 4 June 2018 and make such copies available to the independent children’s lawyer on his/her arrival at Court.
(5)Additionally, the independent children’s lawyer be provided with a copy of:-
a)      The reasons for decision of Justice Cronin delivered on 15 February 2018;
b)      A copy of the Order made on 30 November 2015;
c)      A copy of the Order made on 15 February 2018;
d)      A copy of any report or updated report done by Ms K in this matter;
e)      The reasons for decision of Senior Registrar FitzGibbon of 3 May 2018.

AND IT IS NOTED that there is an affidavit by Ms K written as Folio 32 on the Court file but it is not able to be located on the Court file.

Order Two

IT IS ORDERED THAT:

(1)I amalgamate the Contravention Application of the father filed on 7 May 2018 with the Contravention Application filed by him on 23 May 2018 and mark the counts referred to therein as Counts 1 to 22 NOTING THAT there is a Count 16A (“the Contravention Applications”).
(2)I give leave to the father to withdraw Counts 11 and 12 on the basis that he concedes that they are similar instances to that alleged in Count 14 and wishes to conserve Court time.
(3)I give leave to 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 Harvey & Harvey

Details

AGLC: Harvey & Harvey [2018] FamCA 516
Case: [2018] FamCA 516
Decision Date: 16 July 2018

CaseChat Overview and Summary

Harvey & Harvey concerned a dispute between the parties of the same name, heard before Bennett J in the Supreme Court of Western Australia. The core of the disagreement revolved around the interpretation and enforceability of a deed of settlement and release.

The primary legal issue before the Court was whether the deed of settlement and release, which purported to extinguish all claims between the parties, was valid and effective in preventing the plaintiff from pursuing further legal action. This involved an examination of the principles governing the construction of settlement deeds and the circumstances under which such agreements might be set aside or found to be inoperative.

Bennett J considered the plain meaning of the words used in the deed, applying established principles of contractual interpretation. The Court found that the language of the deed was clear and unambiguous in its intention to provide a final resolution of all existing and potential claims. Consequently, the Court held that the deed was a binding agreement that precluded the plaintiff from bringing the current proceedings. The Court's reasoning underscored the importance of clear and comprehensive drafting in settlement agreements to ensure their intended finality.

Orders