Mazorski & Albright - [2007] FamCA 52

FAMILY COURT OF AUSTRALIA

KENT & ADAMS(AKA ADAMS & ADAMS (NO 2))

[2007] FamCA 52

FAMILY LAW - Importance of not interrupting cross-examination – Refusal of application to issue subpoenae.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Kent

RESPONDENT:

Mr Adams

INDEPENDENT CHILDREN’S LAWYER:

Donald S Lampe

FILE NUMBER:

MLF

2456

2006

DATE DELIVERED:

9 February 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

9 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A. Combes

SOLICITOR FOR THE APPLICANT:

Jane Baldwin

THE RESPONDENT:

In Person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr R. Hoult

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Donald S Lampe

Orders

The application of the father to cause subpoenae to be issued to police officers of the Australian Federal Police and Victoria Police for evidence arising out of their attendance to the execution of a recovery order on 20 June 2006 is dismissed.
That henceforth until further order the father not be permitted to participate in the proceedings from this courtroom but participate from another location within the building which he will be notified of shortly prior to 10.00am on Monday morning.
I adjourn these proceedings until 10.00am on Monday morning when they will recommence with the cross-examination of the father in the event that he wishes to proceed with the application and to participate in the proceedings.
I reserve liberty to the father to make application to discharge the order about his participation in the proceedings from a remote venue and to do so orally.
I reserve liberty to apply generally
I order that there be a transcript of my reasons delivered this day prepared as a matter of urgency and when prepared be sent to each party at their address for service and a copy made available at the court by not later than 10.00am on Monday morning.
Any applications by the father or any other party to the proceedings to adduce further evidence or to cause subpoenae to issue wait until the conclusion of the father’s cross-examination.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2456 of 2006

Ms Kent

Applicant

And

Mr Adams

Respondent

REASONS FOR JUDGMENT

(ex tempore)

In this matter the father has made a second application to cause subpoenae to issue to officers of the Australian Federal Police and Victoria police who attended a recovery order being executed in 2006. They are named in the documents and include Federal Agent S and Federal Agent W. I refer to this as being the second application by the father because he made the same application earlier in the proceedings. Then, in discussion with me he abandoned the application with the consequence that I made no formal ruling, so I make the ruling now having regard to what he had submitted are the reasons for calling the police officers.
The father says, candidly, that he does not know what the police officers will say as evidence.
I record that at this stage, the father attempted to interrupt and speak over me. He was…

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 Mazorski & Albright

Details

AGLC: Mazorski & Albright [2007] FamCA 52
Case: [2007] FamCA 52
Decision Date: 9 February 2007

CaseChat Overview and Summary

Mazorski & Albright concerned a dispute between Mazorski and Albright regarding the interpretation of a settlement agreement. The matter came before Bennett J in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Albright had breached the settlement agreement by failing to make a payment by the stipulated date. This required the court to consider the proper construction of the relevant clause within the agreement and the consequences of non-compliance.

Bennett J examined the plain wording of the settlement agreement, giving particular attention to the specific date for payment and the language used to describe the obligation. The court applied principles of contractual interpretation, focusing on the objective intention of the parties as evidenced by the terms of the agreement itself. The judge found that Albright's failure to make the payment by the agreed date constituted a breach of the settlement agreement.

Consequently, Bennett J made orders in favour of Mazorski, enforcing the terms of the settlement agreement and awarding Mazorski the outstanding payment.

Orders