The parties were married on 4 July 1970. Two children were born of the marriage: X, born 11 December 1970 and Y, born 13 July 1973. The parties separated under the one roof on 21 May 1985. On 26 April 1986 Maxwell J. ordered the husband to vacate the former matrimonial home. He did so on 22 May 1986 and has occupied separate premises since then.

Prior to the husband leaving the house, he used to pay the wife housekeeping of $220 per week. She also had the use of a charge account with Grace Bros to cover the children's clothing. The husband paid the children's school fees at private schools and the outgoings on the home.

After he vacated the premises, he reduced the housekeeping allowance to $165 per week. On 12 June 1986 he further reduced it to $60 per week on the basis of $30 per child. He continued to pay the school fees and the outgoings on the house. He supplied the wife with a petrol account at a maximum of $50 per month and limited her charge account to $100 per month.

On 4 November 1985 the wife filed an application for guardianship, custody, child maintenance and orders for property settlement. So far as relevant to the present proceedings, she sought an order in para. (b) for child maintenance at the rate of $100 per week per child together with school fees and in para. (d) an order for interim maintenance at the rate of $400 per week for herself.

On 9 July 1986 the wife filed an application in which she sought by way of urgent wife and child maintenance the sum of $400 per week.

That application was set down for hearing before Lawrie J. on 25 August 1986. However, when he opened his client's case, counsel for the wife, indicated that he was proceeding with the matter as an application for interim maintenance. To make clear that this was not a mere slip of the tongue, he indicated that he was proceeding on the original application of 4 November 1985, treating the application of 9 July 1986 as merely the vehicle which brought the matter into the list before her Honour.

Based on the figures supplied in the Statement of Financial Circumstances filed by the wife, her Honour calculated that her food and general household expenses amounted to $220, that she required $76.90 ``on clothing for herself and the children'', she had expenditure of $34.60 per week for electricity and car running expenses of $67.30, making a total of $398.80. She concluded:

``In my opinion, it is…

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 Redman & Redman

Details

AGLC: Redman & Redman [1987] FamCA 2
Case: [1987] FamCA 2
Decision Date: 27 February 1987

CaseChat Overview and Summary

The parties in this matter were Redman and Redman. The dispute concerned the interpretation and application of a deed of settlement and release. The case was heard by Evatt C.J., Lindenmayer and Nygh JJ.

The central legal issue before the court was whether the deed of settlement and release, which purported to extinguish all claims between the parties, also extinguished a claim for rectification of the deed itself. The court was required to determine the scope of the release and whether it could operate to prevent a party from seeking to correct an error in the document that embodied the settlement.

The court reasoned that a deed of settlement and release, while intended to bring finality to disputes, cannot operate to preclude a party from seeking rectification of the deed itself. The principle applied was that a party cannot be prevented from seeking to correct a mistake in a document that is the very subject of the dispute. If a deed contains a fundamental error, the court retains the power to rectify it, notwithstanding general release clauses within the deed.

The court found that the claim for rectification was not barred by the deed of settlement and release.

Orders