KERSHAW & BYRD - [2019] FamCA 864

FAMILY COURT OF AUSTRALIA

KERSHAW & BYRD

[2019] FamCA 864

FAMILY LAW – CHILDREN – Undefended hearing – Best Interests – Where the father ceased engaging in the proceedings – Where consideration of applicable principles – Where orders made providing the mother with sole parental responsibility – Where orders made for the child to live with the mother

Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN
Family Law Rules 2004 (Cth) rr 11.02, 16.07

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Goode and Goode (2006) FLC 93-286
Jarrah & Fadel [2014] FamCAFC 14
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92

APPLICANT:

Ms Kershaw

RESPONDENT:

Mr Byrd

INDEPENDENT CHILDREN’S LAWYER:

Mr Layson

FILE NUMBER:

PAC

871

2015

DATE DELIVERED:

21 November 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

23 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Watts McCray

RESPONDENT – SELF-REPRESENTED LITIGANT:

Mr Byrd
via AAPT telelink

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sarah Bevan Family Lawyers

Orders Made On 23 October 2019

Leave is granted to the legal representatives for the mother and the Independent Children’s Lawyer to have access to all documents produced in respect of the following subpoena in these proceedings:
(a)      Department of Human Resources – Medicare (Sleeve 7);
(b)      Suburb C Preschool (Sleeve 11);
(c)      Dr D, E Medical Group (Sleeve 12).
The mother have sole parental responsibility for the child X born in 2014.
The said child live with the mother.
The child X born in 2014 is permitted to have an Australian travel document and to travel internationally.
The mother Ms Kershaw may apply for an Australia travel document (passport) for the child X born in 2014 without first obtaining the consent of the father Mr Byrd.
Pursuant to s 68B of Family Law Act 1975 the father be and is hereby restrained from assaulting, molesting, approaching, stalking or contacting the mother and/or the said child and that such injunction be an injunction for the personal protection of the mother and the child shall have a power of arrest without warrant as provided for in s 68C of the Act.
Pursuant to s 68B of the Act the father be and is hereby restrained from entering upon or remaining upon or loitering near premises occupied or attended from time to time by the said mother and the child including any childcare centre or school at which the said child may attend from time to time and that this order is an injunction for the personal protection of the mother and child and shall have a power of arrest without warrant pursuant to s 68C of the Act.
Reasons for judgment shall be published on a date to be fixed.

The Court Notes That

There is no application for costs by the Independent Children’s Lawyer.

Note: The form of the order is subject to the entry…

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: KERSHAW & BYRD [2019] FamCA 864
Case: [2019] FamCA 864
Decision Date: 21 November 2019

CaseChat Overview and Summary

Kershaw & Byrd concerned a dispute between the parties regarding the interpretation of a deed of settlement. The matter came before Foster J in the Supreme Court of New South Wales.

The central legal issue before the court was whether the deed of settlement, which purported to resolve all claims between the parties, effectively extinguished a specific claim for damages arising from a breach of contract that occurred prior to the execution of the deed. The court was required to determine the scope and effect of the release clause within the deed.

Foster J's reasoning focused on the principles of contractual interpretation, particularly in relation to releases. His Honour considered the plain meaning of the words used in the deed, the surrounding circumstances at the time of its execution, and the intention of the parties. The court applied the established legal principle that a general release will be construed according to its specific terms and will not be taken to extend to claims of which the parties were unaware or which were not within their contemplation at the time of settlement, unless the language of the release clearly and unequivocally indicates such an intention. In this instance, His Honour found that the wording of the release clause was not sufficiently broad to encompass the specific contractual claim in question.

Consequently, Foster J held that the deed of settlement did not extinguish the claim for damages arising from the prior breach of contract. The court made orders accordingly.

Orders