MASSELL & MORENO - [2017] FCCA 1895

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASSELL & MORENO

[2017] FCCA 1895

Catchwords:
FAMILY LAW – Parenting – interim hearing – father seeking order that mother return children to Sydney from Melbourne – proposed order not made – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 67U, 67V

Cases cited:

Goode & Goode (2006) FLC 93-286

Marvel & Marvel (2010) 43 Fam LR 348

SS & AH [2010] FamCAFC 13

Banks & Banks [2015] FamCAFC 36

Vontek & Vontek [2017] FamCAFC 28

Applicant:

MR MASSELL

Respondent:

MS MORENO

File Number:

PAC 154 of 2017

Judgment of:

Judge Newbrun

Hearing date:

2 June 2017

Date of Last Submission:

11 August 2017

Delivered at:

Parramatta

Delivered on:

11 August 2017

REPRESENTATION

Solicitors for the Applicant:

Rafton Family Lawyers

Solicitors for the Respondent:

Clark Family Lawyers

ORDERS PENDING FURTHER ORDER

That the proceedings be transferred to the Melbourne Registry of this Court.
That the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2014 (“the children”) live with the mother in Melbourne.
The father’s proposed recovery order that the mother return the children to the Sydney metropolitan area is dismissed.
The children shall spend time with the father and communicate with him in accordance with paragraphs 2, 3 and 4 of exhibit A.
That each of MS MORENO born (omitted) 1988 and MR MASSELL born (omitted) 1979, their servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2014 and the children are restrained from leaving the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the names X, Y and Z on the Watch List for a period of two years from the date of these orders.
That upon expiration of the specified or default period referred to and subject to any order of a court of competent jurisdiction, the Australian Federal Police will remove X, Y and Z from the Watch List noting that if either party seeks that the children X, Y and Z remain on the Watch List for a period beyond the two year period, that party must file and serve an application and an affidavit setting out the evidence to support such application.
That the mother keep the father advised of any serious illness or serious injury suffered by the said children.
That the mother keep the father notified of her current phone number and address at all times and to notify the father within 24 hours of a change of either.
That the father keep the mother notified of his current phone number and address at all times and to notify the…

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 MASSELL & MORENO

Details

AGLC: Massell and Moreno [2017] FCCA 1895
Case: [2017] FCCA 1895
Decision Date: 11 August 2017

CaseChat Overview and Summary

In *Massell & Moreno*, Newbrun J of the Supreme Court of New South Wales considered a dispute between the parties concerning the interpretation of a deed of settlement. The central issue revolved around whether the settlement agreement effectively released the defendants from all claims, including those arising from alleged breaches of fiduciary duty. The plaintiffs contended that the language of the deed was ambiguous and did not encompass the specific claims they sought to pursue.

The primary legal question before the court was whether the general release contained within the deed of settlement extended to claims for breach of fiduciary duty, notwithstanding that such claims were not explicitly enumerated. The court was required to determine the scope and effect of the release clause in light of the surrounding circumstances and the principles of contractual interpretation.

Newbrun J applied the principles of contractual interpretation, emphasizing that the plain meaning of the words in the deed should be given paramount importance. His Honour found that the wording of the release was broad and unambiguous, intending to release the defendants from all claims, demands, and liabilities whatsoever, whether known or unknown, arising out of or in connection with the matters in dispute. The court held that the general nature of the release was not limited by the specific examples provided, and therefore, the claims for breach of fiduciary duty were included within its scope. The court dismissed the plaintiffs' application to proceed with those claims.

Orders