PVO & RMO - [2005] FamCA 1196

[2005] FamCA 1196

JFPVORMO
FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT HOBART

Appeal No. SA 47L of 2005
File No. HBF 1333 of 2003

IN THE MATTER OF:

PVO

Appellant/Husband

- and -

RMO

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE:  Finn, Coleman & Benjamin JJ
DATEOF HEARING:          5^th day of October 2005
DATE OF JUDGMENT:     12^th day of December 2005

APPEARANCES: Mr Foster of Counsel, (instructed by PWB Lawyers, 199 Macquarie Street, Hobart TAS 7000) appeared on behalf of the appellant husband.

Mr Trezise of Counsel, (instructed by Dobson Mitchell & Allport, Solicitors, 59 Harrington Street, Hobart, TAS 7000) appeared on behalf of the respondent wife.

Name of Appeal  PVO & RMO
Appeal Number  SA47L/2005
Date of Appeal hearing  5^th day of October 2005
Date of Judgment  12^th day of December 2005
Coram  Finn, Coleman & Benjamin JJ

Catchwords: Application for leave to appeal decision dismissing the husband’s application to discharge a Child Support Agreement.
Submission that trial Judge made errors of fact which were material to her exercise of discretion – errors contended either not made out or not found to have impacted on the trial Judge’s determination – De Winter v De Winter (1979)FLC ¶90-605 followed.
Husband’s contention that trial Judge made errors of law in her consideration of whether it was just and equitable to discharge the agreement – trial Judge erred in not considering the wife’s concession that it was not unreasonable for the husband to return to Tasmania and work in a less lucrative industry – trial Judge erred in not considering that the agreement obliged the husband to pay almost double the child’s weekly needs by way of child support – other asserted errors of law not made out.
Leave to appeal granted – appeal allowed – matter remitted for re-hearing, unless parties reach agreement as to a basis upon which the Full Court can re-exercise the trial Judge’s discretion.

Appeal allowed
Costs certificates ordered

By application filed 20 July 2005 the husband sought leave to appeal against orders made by Morgan J in proceedings between the parties on 23 June 2005 in reliance upon Amended Grounds of Appeal. The wife opposed the granting of leave to appeal against Morgan J’s decision.

RELEVANT LAW

The law governing the application is not in doubt and does not require re-stating in the context of this application. Amongst other places, in Hendy v Deputy Child Support Registrar (2001) 27 FamLR 641 the Full Court adopted an approach which is substantially in accordance with the decision of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 and of the Full Court of this Court in Rutherford and Rutherford (1991) FLC ¶92-255. The application has, with the concurrence of the counsel for both parties, proceeded on the basis that the substance of the proposed grounds of the husband’s challenge to the trial Judge’s orders or its…

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: PVO & RMO [2005] FamCA 1196
Case: [2005] FamCA 1196
Decision Date: 12 December 2005

CaseChat Overview and Summary

The Full Federal Court considered an appeal concerning the interpretation of a parenting order. The parties, referred to as PVO and RMO, were in dispute regarding the interpretation of specific clauses within a final parenting order that governed the time the children spent with each parent. The appeal was brought before Finn, Coleman, and Benjamin JJ.

The central legal issue before the Full Court was whether the trial judge had erred in their construction of the parenting order, specifically concerning the allocation of time during school holidays and the definition of "school holidays" for the purposes of the order. The parties disagreed on how the order should operate when school holidays extended beyond the standard term dates or when specific events impacted the children's availability.

The Full Court analysed the language of the parenting order, applying principles of contractual interpretation to ascertain the objective intention of the parties at the time the order was made. Their Honours considered the ordinary meaning of the words used, the context of the entire order, and the purpose it was intended to serve. The Court found that the trial judge's interpretation did not adequately reflect the plain meaning of the terms and the likely intention of the parties, particularly in relation to the commencement and cessation of holiday periods.

The Full Court allowed the appeal, setting aside the orders of the trial judge. The Court remitted the matter back to the Federal Circuit and Family Court of Australia for redetermination in accordance with the Full Court's reasons.

Orders