Miller & Anor & Hill - [2016] FamCA 1099

FAMILY COURT OF AUSTRALIA

MILLER AND ANOR & HILL

[2016] FamCA 1099

FAMILY LAW – CHILDREN – Interim proceedings – Where the Applicant is a non-parent – Where the mother is deceased – Consideration of the best interests principles – Where the child lived with the maternal aunt and mother – Where the maternal aunt and the father are to have equal shared parental responsibility for the child – Where the child is to live with the father – Where the child is to spend time with the maternal aunt.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65C, 61DA, 65DAA

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode:[2006] FamCA 1346
Marvel & Marvel (No.2 )[2010] FamCAFC 101; (2010) 43 Fam LR 348
Mazorski v Albright[2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GRR [2010] HCA 4
SS & AH[2010] FamCAFC 13
Valentine & Lacerra and Anor [2013] FamCAFC 53
Yamada v Cain (2013) FamCAFC 64.

FIRST APPLICANT:

Ms Miller

SECOND APPLICANT:

Ms Moore

RESPONDENT:

Mr Hill

FILE NUMBER:

PAC

1899

2016

DATE DELIVERED:

9 December 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

9 December 2016

REPRESENTATION

SOLICITOR FOR THE FIRST APPLICANT:

Mr Holmes of KD Holmes Solicitors

SOLICITOR FOR THE SECOND APPLICANT:

Mr Holmes of KD Holmes Solicitors

SOLICITOR FOR THE RESPONDENT:

Ms McDonnell of McDonnell Law

Orders, Pending further Order

The father and maternal aunt have equal shared parental responsibility for the child B born … 2006 such order reflecting the consent orders made on 25 May 2016.
The child live with the father.
The child spend time with the maternal aunt as agreed between the maternal aunt and the father in writing such writing including SMS or email communication and in default of agreement as follows:
(a)During the 2016/2017 school holidays
(i)For one week commencing 10.00am Saturday, 31 December 2016 to 10.00am Saturday, 7 January 2017.
(ii)For one week from 10.00am Saturday, 14 January 2017 to 10.00am Saturday, 21 January 2017.
(b)During school term 1/2017 each alternate weekend commencing on the first weekend after the resumption of school term from 6.00pm Friday to 4.00pm Sunday, then during school term 2/2017 each third weekend commencing on the first weekend after the resumption of school term from 6.00pm Friday to 4.00pm Sunday.
Changeovers, for the purposes of the maternal aunt’s time with the child be effected at the McDonald’s Family Restaurant at M Town NSW or as otherwise agreed between the parties in writing such writing to include SMS or email communication.

IT IS FURTHER ORDERED BY CONSENT THAT

Appointment of single expert

Pursuant to Rule 15.44 of the Family Law Rules, Dr C, Psychologist, be appointed as a single expert in these proceedings to enquire into and report upon matters relating to the welfare of the child, B, born … 2006 (“the child”), and that in preparing her report to 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 Miller & Anor & Hill

Details

AGLC: Miller & Anor & Hill [2016] FamCA 1099
Case: [2016] FamCA 1099
Decision Date: 9 December 2016

CaseChat Overview and Summary

The case of *Miller & Anor v Hill* concerned a dispute between the applicants, Miller and another, and the respondent, Hill, regarding the interpretation and enforcement of a deed of settlement. The matter came before Foster J in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the respondent, Hill, had breached the terms of the deed of settlement by failing to make certain payments as stipulated. This involved an examination of the precise wording of the deed and the parties' intentions at the time of its execution. The Court was required to determine the scope of Hill's obligations under the deed and whether those obligations had been discharged.

Foster J's reasoning focused on the plain meaning of the contractual language within the deed. His Honour applied established principles of contractual interpretation, emphasizing that where the language of a contract is clear and unambiguous, the court should give effect to that language. The Court considered the surrounding circumstances to the extent they were necessary to understand the context of the agreement, but ultimately found the terms of the deed to be sufficiently clear to determine the parties' rights and obligations. The Court concluded that the respondent had indeed breached the deed by failing to meet the agreed payment schedule.

The Court ordered that the respondent, Hill, pay the outstanding amounts due under the deed of settlement to the applicants, Miller and the other applicant, along with interest and costs.

Orders