NUNES & NUNES (No.2) - [2017] FCCA 20

FEDERAL CIRCUIT COURT OF AUSTRALIA

NUNES & NUNES (No.2)

[2017] FCCA 20

Catchwords:
FAMILY LAW – Interim hearing – competing parenting proposals for father’s proposed time with children aged 2 and 4 years – whether such time should continue to be supervised – interim orders made for the children to spend weekly unsupervised time with the father during the daytime subject to protective conditions.

Legislation:

Family Law Act 1975, ss.60CC, 60B, 60CA, 60CC, 61DA, 65DAA(3), 65D, 68L

Cases cited:

Banks & Banks (2015) FamCAFC 36

Goode & Goode (2006) FLC 93-286

Helbig & Rowe [2016] FamCAFC 117
Makita (Australia)Pty Ltd v Sprowles [2001] NSWCA 305
Marvel & Marvel (2010) 43 Fam LR 348
Safir & Safir [2016] FamCAFC 3

Applicant:

MR NUNES

Respondent:

MS NUNES

File Number:

PAC 3062 of 2015

Judgment of:

Judge Newbrun

Hearing date:

28 July 2016

Date of Last Submission:

15 August 2016

Delivered at:

Parramatta

Delivered on:

20 January 2017

REPRESENTATION

Solicitors for the Applicant:

O'Sullivan Legal

Counsel for the Respondent:

Mr O'Brien

Solicitors for the Respondent:

JB & Associates Solicitors

ORDERS, PENDING FURTHER ORDER

All previous parenting orders be discharged.
The mother shall have sole parental responsibility for the children X born (omitted) 2013 and Y born (omitted) 2014 (“the children”).
The children shall spend time with the father as follows:
(a)From 28 January 2017 to 31 March 2017, each week on a Saturday or Sunday for a period of 4 hours between 9:00am and 5:00pm;
(b)From 1 April 2017 to 31 May 2017, each week on a Saturday or Sunday for a period of 5 hours between 9:00am and 5:00pm;
(c)From 1 June 2017 and thereafter, pending further order or agreement, each week on a Saturday or Sunday for a period of 6 hours between 9:00am and 5:00pm; and
(d)At any other or alternate times as agreed between the parties;
Provided that the father shall give the mother notice by text message or email, not less than 4 days prior of his intention to spend time with the children as above.
The father shall collect the children from the mother’s home at the commencement of any time to be spent with the children, as above, and the mother shall collect the children from the father’s home at the conclusion of such time.
The father is prohibited from accessing or viewing pornography during periods of time that the children are in his care.
The father and the mother are to use their best endeavours to ensure that the children are not exposed to pornography, and they are to use their best endeavours to ensure that there is no pornography on computers or other electronic devices to which the children would have access to within each of their households, and they are to activate child lock anti-porn software on such devices when the children are in their respective care.
Each party be restrained from consuming alcohol to excess of 0.05 in the 12 hours preceding contact and during any period of contact with 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 NUNES & NUNES (No.2)

Details

AGLC: Nunes and Nunes (No.2) [2017] FCCA 20
Case: [2017] FCCA 20
Decision Date: 20 January 2017

CaseChat Overview and Summary

Newbrun J of the Supreme Court of New South Wales considered a dispute between the parties, Nunes & Nunes (No.2), concerning the interpretation and application of a deed of settlement. The core of the disagreement revolved around whether certain payments made by one party constituted a breach of the settlement agreement.

The primary legal issue before the court was to determine whether the respondent's actions in making payments to third parties, which the applicant alleged were in contravention of the deed, constituted a breach of the settlement agreement. This required the court to construe the relevant clauses of the deed to ascertain the parties' intentions and the scope of their obligations.

His Honour's reasoning focused on a careful analysis of the language used in the deed of settlement. Newbrun J applied principles of contractual interpretation, emphasizing the importance of giving effect to the plain meaning of the words used by the parties, unless such a meaning would lead to an absurd result or was clearly not intended. The court considered the context of the entire agreement to understand the purpose and effect of the disputed clauses. Ultimately, the court found that the respondent's actions did not breach the terms of the deed as it was drafted and understood.

Orders