JACKSON & MACEK - [2015] FCCA 1656

FEDERAL CIRCUIT COURT OF AUSTRALIA

JACKSON & MACEK

[2015] FCCA 1656

Catchwords:
FAMILY LAW – Recovery order – consideration of risk to 11 month old child breast feeding where mother admits to illicit drugs use and having been tattooed.

Legislation:
Family Law Act1975, ss.60CC, 61DA, 65DAA

Evidence Act 1995, s.144

Goode & Goode (2006) 36 Fam LR 422, (2006) FLC 93-286 [2006] FamCA 1346

Applicant:

MS JACKSON

Respondent:

MR MACEK

File Number:

NCC 1295 of 2015

Judgment of:

Judge Myers

Hearing date:

5 June 2015

Date of Last Submission:

5 June 2015

Delivered at:

Newcastle

Delivered on:

5 June 2015

REPRESENTATION

Solicitors for the Applicant:

Legal Aid Commission

Solicitors for the Respondent:

Joplin Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The mother be prevented by injunction from breastfeeding the child X born (omitted) 2014.
The father return the child to the mother at the McDonald’s Family Restaurant car park at (omitted) by 8.30pm tonight.
The child live with the mother.
The child spend time with the father at all times as agreed between the parties and failing agreement from 9.00am until 3.00pm each Sunday, Monday, Wednesday and Friday.
Whilst ever the child is in the mother’s care the mother shall reside in the home of the maternal great grandmother Ms J in (omitted).
The father must reside at all times whilst the child is in the father’s care at the home of the paternal grandmother Ms S.
Should the father’s further drug testing as requested by the Independent Children’s Lawyer prove positive for any illicit substances his time with the child shall thereafter be supervised by the paternal grandmother.
Should the father fail to comply with the drug test request issued by the Independent Children’s Lawyer his time with the child shall be thereafter supervised by the paternal grandmother.
Should the mother fail to comply with the request by the Independent Children’s Lawyer for a drug screen and or her drug screen be positive for any illicit substance the Independent Children’s Lawyer shall restore the matter on 24 hours’ notice.
The parties are restrained from having X in their presence while they partake in any criminal activity.
The parties are prohibited by injunction from consuming any illicit substances 48 hours prior to or any time during which X is in their care.
The mother is injuncted and restrained without admission from the child attending upon the maternal grandmother’s home.
Subject to Order 14 below the mother is injuncted and restrained from allowing the child to come into contact with the maternal grandmother or her partner Mr T.
The injunction with respect to the maternal grandmother coming into contact with the child shall apply unless the maternal grandmother is at all times in the presence of the maternal great grandmother.
The changeovers of the child take place between the parties at the car park of the (omitted) McDonald's Family Restaurant.
The mother attend upon her general practitioner within 14 days for the purposes of obtaining a mental…

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: JACKSON & MACEK [2015] FCCA 1656
Case: [2015] FCCA 1656
Decision Date: 5 June 2015

CaseChat Overview and Summary

In *Jackson & Macek*, Myers J of the Supreme Court of Victoria considered a dispute concerning the interpretation of a settlement agreement. The parties, Jackson and Macek, had entered into a deed of settlement to resolve prior litigation. The central issue revolved around whether Macek was entitled to recover certain legal costs incurred in the course of the original proceedings, despite the terms of the settlement deed.

The primary legal question before the Court was whether the settlement deed, by its express terms, extinguished Macek's right to claim the specified legal costs. This required an analysis of the language used in the deed and the surrounding circumstances to ascertain the parties' intention at the time of its execution. The Court had to determine if the general release and indemnity provisions within the deed encompassed the specific legal costs in question.

Myers J reasoned that the deed of settlement was intended to provide a final and comprehensive resolution of all claims between the parties. His Honour applied the principles of contractual interpretation, focusing on the plain meaning of the words used in the deed. The Court found that the broad language of the release and indemnity provisions clearly covered the legal costs that Macek sought to recover, thereby precluding such a claim. The intention of the parties, as evidenced by the deed, was to bring finality to the dispute, and allowing recovery of these costs would undermine that intention.

Orders