MEAD & MEAD - [2016] FCCA 2074

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEAD & MEAD

[2016] FCCA 2074

Catchwords:
FAMILY LAW – Interim hearing – mother’s urgent application for a recovery order – unacceptable risk of harm to children if recovery order made – “need to protect” primary consideration given significant weight – application dismissed – mother to spend time with children in presence of adult in interim – Independent Children’s Lawyer appointed – proceedings adjourned for mention in 6 weeks’ time.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61BA, 61DA(3), 65D, 65DAA(3)

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant:

MS MEAD

Respondent:

MR MEAD

File Number:

BRC 731 of 2012

Judgment of:

Judge Newbrun

Hearing date:

27 July 2016

Date of Last Submission:

27 July 2016

Delivered at:

Parramatta

Delivered on:

3 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr Gardiner

Solicitors for the Applicant:

LGM Family Law

Counsel for the Respondent:

Mr Bolger

Solicitors for the Respondent:

Ghobrial Legal

ORDERS, PENDING FURTHER ORDER:

That the mother’s application for a Recovery Order is dismissed.
That the mother’s application for an order that the proceedings be transferred to the Brisbane Registry of this Court is dismissed.
That the parties shall have equal shared parental responsibility for the children X born (omitted) 2010 and Y born (omitted) 2013 (“the children”).
That the children shall live with the father.
That pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the children X born (omitted) 2010 and Y born (omitted) 2013 (“the children”), shall be independently represented by a lawyer and the Legal Aid Commission of NSW is requested to arrange the appointment of a lawyer to do so.
That the solicitors for the parties shall forthwith forward to the Legal Aid Commission of NSW notice of these Orders and copies of the documents filed in the proceedings on behalf of their respective clients.
That leave is granted to the parties and the Independent Children’s Lawyer to issue more than 5 subpoenas for the production of documents.
That the proceedings are adjourned for mention to 14 September 2016 at 9:30am.
That prior to the above mention date, the children shall spend time with the mother in Sydney, in accordance with the agreement of the parties, or failing agreement, they shall spend time with the mother in Sydney during the day time in the presence of an agreed adult, or failing agreement, a member of the father’s extended family, such as the paternal grandmother Ms Mead. Such time to be spent by the children with the mother shall commence, subject to the mother’s availability, on Saturday or Sunday 6 or 7 August 2016, for a period of at least 3 hours and then fortnightly thereafter up to the next mention date of these proceedings.
That liberty is granted to the parties and the Independent Children’s Lawyer to relist the matter on 7 days’ notice…

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: Mead and Mead [2016] FCCA 2074
Case: [2016] FCCA 2074
Decision Date: 3 August 2016

CaseChat Overview and Summary

In the matter of *Mead & Mead*, Newbrun J of the Supreme Court of New South Wales was required to determine a dispute between the applicant, Mead, and the respondent, Mead. The core of the disagreement concerned the interpretation and application of certain provisions within a deed of settlement.

The primary legal issues before the Court were whether the respondent had breached the terms of the deed of settlement and, consequently, whether the applicant was entitled to specific performance of those terms. The Court was also tasked with considering the appropriate remedies available to the applicant in light of the alleged breaches.

Newbrun J's reasoning focused on a close examination of the language used in the deed of settlement, applying established principles of contractual interpretation. The Court considered the objective intentions of the parties at the time the deed was executed, taking into account the surrounding circumstances and the purpose of the settlement. The Court found that the respondent's actions did not constitute a breach of the operative clauses of the deed.

Accordingly, the Court dismissed the applicant's claim for specific performance and any associated relief.

Orders