MARVIL & MANCELL - [2020] FamCA 408

FAMILY COURT OF AUSTRALIA

MARVIL & MANCELL

[2020] FamCA 408

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Where appropriate the matter proceed on an undefended basis – 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 and silent as to time with the father.

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 Marvil

RESPONDENT:

Mr Mancell

INDEPENDENT CHILDREN’S LAWYER:

Ms Tuaileva

FILE NUMBER:

PAC

4100

2013

DATE DELIVERED:

26 May 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Beutrum of I & J Law

RESPONDENT – SELF-REPRESENTED LITIGANT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman for Legal Aid NSW

Orders Made On 17 April 2020

Orders dated 9 February 2015 are discharged.
The Applicant mother Ms Marvil have sole parental responsibility for the child X born … 2007.
The child shall live with the mother.
Reasons for judgment to be published at a later date.
These proceedings be removed from the active pending cases list.

The Court Notes That

By reason of the circumstances of this matter, there is no application for costs by the Independent Children’s Lawyer.

It Is Further Ordered That

All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

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 Marvil & Mancell 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 PARRAMATTA

FILE NUMBER: PAC 4100 of 2013

Ms Marvil

Applicant

And

Mr Mancell

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings commenced by the applicant mother by Initiating Application filed 3 October 2017 in relation to the child X (“the child”). The mother’s application was heard on an undefended basis on 17 April 2020.
The parties had previously been involved in parenting proceedings in relation to the child and the mother’s son Y from a previous relationship. That matter was finalised with orders made by consent on 9 February 2015 that relevantly provided…

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 MARVIL & MANCELL

Details

AGLC: MARVIL & MANCELL [2020] FamCA 408
Case: [2020] FamCA 408
Decision Date: 26 May 2020

CaseChat Overview and Summary

In the matter of *Marvil & Mansell*, Foster J of the Supreme Court of New South Wales was required to determine a dispute concerning the interpretation of a deed of settlement. The parties, Marvil and Mansell, had entered into this deed to resolve prior litigation.

The central legal issue before the court was whether the deed of settlement effectively released Mansell from all claims that Marvil might have had against him, including those arising from a specific transaction that had not been explicitly detailed in the deed itself. The court had to consider the scope and effect of the release clause within the deed.

Foster J's reasoning focused on the principles of contractual interpretation, particularly in the context of deeds. His Honour applied the objective approach to construing the language of the deed, considering the ordinary meaning of the words used and the surrounding circumstances known to the parties at the time of execution. The court determined that the broad and unqualified language of the release clause was intended to encompass all claims, known or unknown, that Marvil had against Mansell, thereby including the claim arising from the unmentioned transaction. The court found that the deed was clear and unambiguous in its intention to provide a final and comprehensive settlement of all disputes between the parties.

Orders