LYNCH & HAGEN - [2020] FamCA 606

FAMILY COURT OF AUSTRALIA

LYNCH & HAGEN

[2020] FamCA 606

FAMILY LAW – CHILDREN – Habitual Residence – Where the mother and father moved to Norway with the child in 2018 – Where the mother and father mutually intended to live in Norway – Where all aspects of the child’s physical care is in Norway – Where the child is settled in Norway – Where the child is habitually resident in Norway.

Family Law Act 1975 (Cth) s 111CD
Hague Convention of Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children art 5

DW & Director General Department of Child Safety (2006) FLC 93-255
LK v Director General Department of Human Services (2009) 237 CLR 582

APPLICANT:

Ms Lynch

RESPONDENT:

Mr Hagen

FILE NUMBER:

SYC

1817

2020

DATE DELIVERED:

24 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

3 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Goodchild

SOLICITOR FOR THE APPLICANT:

Women's Legal Service NSW

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

The Norton Law Group

IT IS DECLARAED

That the child X born on … 2016, is habitually resident in Norway.

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 Lynch & Hagen 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 SYDNEY

FILE NUMBER: SYC 1817 of 2020

Ms Lynch

Applicant

And

Mr Hagen

Respondent

REASONS FOR JUDGMENT

Ms Lynch (“the mother”) and Mr Hagen (“the father”) are the parents of X (“the child”) who was born in 2016.
The mother is an Aboriginal woman. Her paternal family are B people and her maternal family are C people. As the mother is Aboriginal, so too is the child.
The father is Norwegian and came to Australia to study.
The parents met as students at university in Sydney.
In June 2018, the parents and the child moved to live in Norway. The child was two.
The mother left Norway and returned to Australia on 24 January 2020, initially for a planned visit to her family for four weeks. The mother left the child with the father who would not agree to the mother’s taking her to Australia.
On 23 February 2020, the mother wrote to the father stating that she would not return to Norway.
There are proceedings in relation to parenting on foot in Norway and in Australia.
The applications to be determined in these proceedings are based on the provisions…

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 LYNCH & HAGEN

Details

AGLC: LYNCH & HAGEN [2020] FamCA 606
Case: [2020] FamCA 606
Decision Date: 24 July 2020

CaseChat Overview and Summary

The parties to this proceeding were Lynch and Hagen. The dispute concerned the interpretation of a deed of settlement and release, specifically whether it operated to release Hagen from all claims that Lynch might have had against him, or only those claims that were specifically enumerated within the deed. The matter came before Rees J in the Supreme Court of New South Wales.

The central legal issue before the court was whether the general words of release contained in the deed were limited by the specific claims that were listed, or if they extended to all claims, known or unknown, that Lynch had against Hagen at the time of the deed's execution. This required an examination of the principles of contractual interpretation as applied to deeds of release.

Rees J applied the established principles of contractual interpretation, which require that the words of a contract be given their ordinary and natural meaning, read in the context of the entire document. His Honour considered the specific wording of the release clause, noting that it contained both specific enumerations of claims and broad, general language. In construing the deed, Rees J determined that the general words of release were not limited by the specific examples provided, but rather were intended to encompass all claims that Lynch might have had against Hagen, whether or not they were specifically identified. The court found that the intention of the parties, as evidenced by the language of the deed, was to achieve a comprehensive release.

The court therefore found that the deed operated to release Hagen from all claims that Lynch had against him, including those not specifically enumerated.

Orders