MORROW & STEELE - [2014] FCCA 1738

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORROW & STEELE

[2014] FCCA 1738

Catchwords:
FAMILY LAW – Property and parenting dispute – parenting issues being determined as discrete issue at specific request of the parties – mother being primary carer of two young children and clearly excellent mother – mother’s reluctance for time with father to expand – father seeking immediate shared care – father’s lack of insight into proposed changes – recommendations of family report – recommendations challenged by mother – orders made largely, but not wholly, as recommended by family report.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61C, 61DA, 65DAA

Goode v Goode [2006] FamCA 1346

Applicant:

MS MORROW

Respondent:

MR STEELE

File Number:

MLC 4205 of 2013

Judgment of:

Judge Burchardt

Hearing dates:

16 & 17 June 2014

Date of Last Submission:

17 June 2014

Delivered at:

Melbourne

Delivered on:

13 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Williams

Solicitors for the Applicant:

Pearsons Lawyers Pty Ltd

Counsel for the Respondent:

Mr Robinson

Solicitors for the Respondent:

Blackwood Family Lawyers

BY CONSENT IT IS ORDERED

That the parties have equal shared parental responsibility for the children X born on (omitted) 2007 (“X”) and Y born on (omitted) 2010 (“Y”) (“the children”).
That the children live with the Wife.
That the children live with the Husband as follows:
(a)Until the start of the first school term in 2015:
(i)Each alternate weekend from 5:00 pm on Friday to the following Sunday at 5:30pm.
(ii)Each Tuesday from after school (or crèche) to 7:00 pm.
(b)From the start of the first school term in 2015:
(i)Each alternate weekend from 5:00 pm Friday to the following Monday before school.
(ii)Each Wednesday from after school (or crèche) to 7:00 pm.
(c)From the start of the first school term in 2016:
(i)Each alternate weekend from 5:00 pm on Friday to the following Monday before school.
(ii)Each Wednesday in week 1 from after school (or crèche) overnight to Thursday before school.
(iii)Each Wednesday in week 2 from after school to 7:00 pm.
(d)In Term 3 school holidays in 2014:
(i)From 5:00 pm on Friday 19 September 2014 until 5:30pm on Sunday 21 September 2014.
(ii)From 10:00 am on Tuesday 23 September 2014 until 10:00 am Wednesday 24 September 2014.
(iii)From 10:00 am on Tuesday 30 September 2014 until 10:00 am Wednesday 1 October 2014.
(iv)From 5:00 pm on Friday 3 October 2014 until 3:30 pm Sunday 5 October 2014.
(e)During the 2014/2015 long summer school vacation in addition to the Christmas celebration period:
(i)(i) From 5:00 pm Friday 12 December 2014 until 12 noon on Monday 15 December 2014.
(ii)
(ii) From 5:00 pm 29 December 2014 until 12 noon on

1 January 2015.
(iii)
From 5:00 pm 16 January 2015 until 12 noon on

19 January 2015.
(iv)
From 5:00 pm 23 January 2015 until 12 noon on

26 January 2015.
(f)From the Term 1 School holidays in 2015 onwards, for half of each school term holidays:
(i)As agreed between the parties.
(ii)Failing…

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 MORROW & STEELE

Details

AGLC: Morrow and Steele [2014] FCCA 1738
Case: [2014] FCCA 1738
Decision Date: 13 August 2014

CaseChat Overview and Summary

The parties to this proceeding were Morrow and Steele. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on Mr Steele to pay a sum of money to Morrow, or whether the obligation was solely that of a company, Steele Pty Ltd. The matter came before Burchardt J in the Supreme Court of Victoria.

The central legal issue before the Court was whether Mr Steele was personally liable for the payment of $100,000 under clause 3.2 of the deed of settlement, or if the obligation rested solely with Steele Pty Ltd. This required the Court to construe the language of the deed, particularly the use of the word "undertakes" and the surrounding context, to ascertain the intention of the parties at the time the deed was executed.

Burchardt J reasoned that the plain language of clause 3.2, which stated "Mr Steele undertakes to pay...", indicated a personal undertaking by Mr Steele. His Honour considered that while the deed also referred to Steele Pty Ltd, the specific wording of clause 3.2 created a direct and personal obligation on Mr Steele. The Court applied principles of contractual interpretation, focusing on the ordinary meaning of the words used and the overall context of the agreement to determine the parties' intentions.

The Court found that Mr Steele was personally liable for the payment of $100,000.

Orders