READER & PETHERIDGE - [2018] FCCA 515

FEDERAL CIRCUIT COURT OF AUSTRALIA

READER & PETHERIDGE

[2018] FCCA 515

Catchwords:
FAMILY LAW – Interim parenting – relocation – 18 month old child – mother unilaterally moved with child from (omitted) Victoria to Sydney NSW – ability to foster a meaningful relationship between child and father if mother remains living in Sydney and father remains living in (omitted) – practicality of move of mother and child back to (omitted) – orders for child to be returned to (omitted).

Legislation:

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

Cases cited:

Goode v Goode (2007) 36 FamLR 422
Keats & Keats [2016] FamCAFC 156

Marvel & Marvel [2010] FamCAFC 101

Sayer & Radcliff & Anor [2012] Fam CAFC 209
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343

Applicant:

MR READER

Respondent:

MS PETHERIDGE

File Number:

PAC 110 of 2018

Judgment of:

Judge Obradovic

Hearing date:

16 February 2018

Date of Last Submission:

16 February 2018

Delivered at:

Parramatta

Delivered on:

5 March 2018

REPRESENTATION

Appearing for the Applicant:

Ms Neilsen

Solicitors for the Applicant:

Sarah Bevan Family Lawyers

Counsel for the Respondent:

Mr Givney

Solicitors for the Respondent:

Broun Abrahams Burreket

PENDING FURTHER ORDER

The parents shall have equal shared parental responsibility for the child X born 2016.
The mother shall within 42 days of the making of these orders cause the return of the child X born (omitted) 2016 to the City of (omitted), Victoria or its immediate vicinity.
Following compliance by the mother with the above order, the mother is restrained from changing the place of residence of the child to any place outside the area referred to in Order 1 and the following shall apply:
(a)The child shall live with the mother;
(b)The child shall spend time with the father as agreed between the parents in writing, but failing agreement:
(i)For a period of three months for four hours per day on four days per week, with such times and dates to be nominated by the father no less than seven days in advance by providing to the mother written notice of what days and times the child shall spend with him, noting the father is a shift worker;
(ii)Thereafter and for a period of six months, for six hours per day on four days per week, with such times and dates to be nominated by the father no less than seven days in advance by providing to the mother written notice of what days and times the child shall spend with him, noting the father is a shift worker; and
(iii)Thereafter, for two 24 hour periods twice per week, with such times and dates to be nominated by the father no less than seven days in advance by providing to the mother written notice of what days and times the child shall spend with him, noting the father is a shift worker.
In the event that the mother fails to comply with order 1 herein, or breaches the restraint in order 2, then…

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 READER & PETHERIDGE

Details

AGLC: Reader and Petheridge [2018] FCCA 515
Case: [2018] FCCA 515
Decision Date: 5 March 2018

CaseChat Overview and Summary

The case of *Reader & Petheridge* concerned a dispute between the parties regarding the interpretation and application of a deed of settlement. The matter came before Obradovic J in the Supreme Court of Victoria.

The central legal issue before the Court was whether the respondents had breached the terms of the deed of settlement by failing to make certain payments to the applicants. This involved a close examination of the language used in the deed and the surrounding circumstances to ascertain the parties' intentions.

Obradovic J considered the principles of contractual interpretation, emphasising the importance of giving effect to the plain meaning of the words used in the deed, unless a contrary intention clearly appeared. The Court analysed the specific clauses in dispute, comparing them with the overall purpose of the settlement. The Judge concluded that the respondents' actions did not constitute a breach of the deed as interpreted by the Court.

The Court therefore dismissed the applicants' claim for breach of the deed of settlement.

Orders