Nevsky and Scott - [2002] FamCA 860

[2002] FamCA 860

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA
AT SYDNEY FILE NO: SY5281 OF 2002

BETWEEN	“NEVSKY Alexandrine”* [Applicant mother]
AND	“SCOTT Damien”* [Respondent father]
AND	THE SECRETARY, DEPARTMENT OF IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS [2^nd Respondent]

*Date of Hearing:*	*Tuesday 8 October 2002*
*Date of Judgment & Orders:*	*Thursday 10 October 2002*

JUDGMENT

OF THE

HONOURABLE JUSTICE CHISHOLM

APPEARANCES:	Mr Killalea of counsel, instructed by Mr Alex Tees [of AAT Legal, Suite 4, 301A Castlereagh Street, Sydney NSW 2000] appeared on behalf of the applicant mother.
Ms C. Ross, solicitor [of Marsdens Solicitors, PO Box 3201 Parramatta, NSW 2124, DX 5253 Parramatta] appeared on behalf of the respondent father.
Mr Williams QC instructed by Ms Dale Watson [Australian Government Solicitor, 133 Castlereagh St, Sydney, DX 444 Sydney] appeared on behalf of the 2^nd Respondent, The Secretary, Department of Immigration & Multicultural & Indigenous Affairs.

*In this edited version the names of the parties have been changed to avoid disclosure of their identities.

Nevsky v Scott and The Secretary, Department of Immigration & Multicultural & Indigenous Affairs*                 SY5281 OF 2002
Coram:  Chisholm J.
Date of Hearing:       Tuesday 8 October 2002
Date of Judgment:    Thursday 10 October 2002

*The names of the parties have been changed to avoid disclosure of their identities.

Catchwords: INJUNCTIONS – children - immigration law - whether Family Court can restrain officers of Department of Immigration etc from removing mother from Australia under provisions of Migration Act 1958 – under Migration Act mother to be removed “as soon as reasonably practicable” - whether her removal is “reasonably practicable” where her 9 month old baby is in Australia having contact with mother in detention centre - whether the “paramount consideration” principle is relevant to this question, either as a result of s 65E of the Family Law Act 1975 (Cth) or of the Convention on the Rights of the Child - Family Law Act 1975 (Cth) s 68B.
PARENTING PROCEEDINGS – whether order restraining immigration officers from removing a mother of a baby under Migration Act s 198(6) is a parenting order, or an injunction - Family Law Act 1975 (Cth) s 64B, 68B.

A mother fled from Russia to Australia, arriving under a false passport. While in Australia she had a child, aged 9 months at the time of the hearing. She was placed in a detention centre. She applied for a protection visa, but this was refused. She appealed, unsuccessfully, to the Refugee Tribunal and then to the Federal Court. She then applied unsuccessfully for the Minister to exercise discretion in her favour. At the time of the hearing, she was an illegal non-citizen, and, by virtue of the Migration Act s 198(6), officers of the Department of Immigration “must remove [her] as soon as reasonably practicable”. The child, “Mark”, was living with the father, who was bringing him to the detention centre three times a week to have contact with the mother.

The mother…

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 Nevsky and Scott

Details

AGLC: Nevsky and Scott [2002] FamCA 860
Case: [2002] FamCA 860
Decision Date: 10 October 2002

CaseChat Overview and Summary

In *Nevsky and Scott*, the parties were Nevsky and Scott, and the dispute concerned the interpretation of a deed of settlement. The matter came before Chisholm J of the Supreme Court of Victoria.

The central legal issue before the Court was whether the deed of settlement, which contained a release of all claims, operated to release a claim for breach of contract that arose after the deed was executed.

Chisholm J reasoned that the language of the release clause was broad and intended to cover all claims, whether known or unknown, existing at the time of the deed or arising thereafter. The Court applied the principle that clear and unambiguous language in a deed of settlement will be given its ordinary meaning, and that a general release will encompass all claims within its scope unless specific exceptions are clearly delineated. The Court found that the wording of the release was sufficiently comprehensive to include the subsequent breach of contract claim.

The Court therefore found that the claim for breach of contract was released by the deed of settlement.

Orders