Highgate and Solage - [2018] FamCA 1076

FAMILY COURT OF AUSTRALIA

HIGHGATE & SOLAGE

[2018] FamCA 1076

FAMILY LAW – PRACTICE AND PROCEDURE – APPLICATION FOR STAY – Where application for stay of interim parenting decision – Where consideration of applicable principles – Where application for stay dismissed.

Family Law Act 1975 (Cth) ss 60CC, 61DA

Aldridge & Keating (Stay Appeal) [2009] FamCAFC 106
Banks & Banks (2015) FamCAFC 36
Clemett & Clemett (1981) FLC 91-013
Dieter & Dieter (2011) FamCAFC 82
EB & Spielman (2015) FamCAFC 104
EJK & TSL [2006] FamCA 806
George & George (2013) FamCAFC 182
Marvel & Marvel (No 2) (2010) FamCAFC 101
SS & AH (2010) FamCAFC 13

APPLICANT:

Mr Highgate

RESPONDENT:

Ms Solage

INDEPENDENT CHILDREN’S LAWYER:

Mr Duncombe

FILE NUMBER:

PAC

5387

2016

DATE DELIVERED:

23 November 2018

PLACE DELIVERED:

Suburb Q

PLACE HEARD:

Suburb Q

JUDGMENT OF:

Foster J

HEARING DATE:

23 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Gordon of ABF Legal

SOLICITOR FOR THE RESPONDENT:

Ms Grew of Matthews Folbigg Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dignan And Hanrahan Solicitors And Attorneys

Orders Made on 23 November 2018

That the Application for stay filed 5 November 2018 by the father be dismissed.
That any application for costs be made by way of written submissions filed and served by no later than Friday, 7 December 2018 and any submissions in response to be filed and served by no later than Friday, 21 December 2018 and thereafter upon completion of submissions as to costs be reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Highgate & Solage has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SUBURB Q

FILE NUMBER: PAC 5387 of 2016

Mr Highgate

Applicant

And

Ms Solage

Respondent

EX TEMPORE REASONS FOR JUDGMENT

In this matter the application for determination is the father’s Application in a Case filed 5 November 2018 seeking a stay of interlocutory parenting orders made by this Court on 28 October 2018.
The Application in a Case filed by the father seeks the following orders:
(1)that order (1) of the orders dated 28 September 2018 be stayed pending the outcome of the applicant’s Notice of Appeal filed 26 October 2018 or until further order of the Court;
(2)that pending the outcome of the Notice of Appeal (or further order of this honourable Court) the children remain enrolled and attend at their current school;
(3)any further order this honourable Court deemed meet; and
(4)costs.
In support of the Application in a Case…

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 Highgate and Solage

Details

AGLC: Highgate and Solage [2018] FamCA 1076
Case: [2018] FamCA 1076
Decision Date: 23 November 2018

CaseChat Overview and Summary

The case of *Highgate and Solage* concerned a dispute between Highgate and Solage regarding the interpretation and application of a settlement agreement. The matter came before Foster J in the Supreme Court of New South Wales. The core of the disagreement lay in whether Solage had fulfilled its obligations under the settlement, specifically concerning the payment of certain sums and the provision of releases. Highgate contended that Solage had breached the agreement by failing to make timely payments and by not providing the agreed-upon releases, thereby entitling Highgate to pursue further remedies.

Foster J was required to determine two primary legal issues. Firstly, the court had to ascertain the correct interpretation of the relevant clauses within the settlement agreement, particularly those pertaining to payment obligations and the conditions precedent to the effectiveness of the releases. Secondly, the court needed to decide whether Solage's actions constituted a material breach of the settlement agreement, and if so, what consequences flowed from that breach.

In reaching its decision, the court engaged in a detailed analysis of the contractual language of the settlement agreement, applying established principles of contractual interpretation. Foster J considered the ordinary meaning of the words used, the context in which they appeared, and the overall purpose of the agreement. The court found that Solage's failure to provide the stipulated releases, coupled with its delay in making a specific payment, amounted to a breach of the settlement agreement. The reasoning focused on the interconnectedness of the payment and release provisions, concluding that Solage's non-performance in one area impacted its ability to enforce the terms of the settlement.

The court ordered that Highgate was entitled to pursue its claims against Solage, as the settlement agreement had not been effectively concluded due to Solage's breaches.

Orders