SAVIANE & MARRIOTT - [2014] FamCA 882

FAMILY COURT OF AUSTRALIA

SAVIANE & MARRIOTT

[2014] FamCA 882

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Young child.

FAMILY LAW – PROPERTY – De facto relationship – Whether there should be an adjustment of property between de facto parties in a very short relationship and limited contribution – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 90M, 90(3)

C & B [2007] FMCAfam 539
Jurss & Jurss (1976) FLC 90-041
Jonah & White [2011] FamCA 221

Smyth & Pappas [2011] FamCA 434
Crowley & Pappas [2013] FamCA 783
Bevan & Bevan (2013) FLC 93-545
Chapman & Chapman [2014] FamCAFC 91

APPLICANT:

Mr Saviane

RESPONDENT:	Ms Marriott
FILE NUMBER:	SYF	739	of		2013

DATE DELIVERED:

17 October 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

1, 2 & 3 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Mr Forster of Forster Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Mackay

SOLICITOR FOR THE RESPONDENT:

Christopher Mackay Lawyers

Parenting Orders

BY CONSENT

All previous parenting orders in relation to X Saviane born April 2012 (‘the child’) are discharged.
Mr Saviane (‘the father’) and Ms Marriott (‘the mother’) have equal shared parental responsibility for the child.

BY DETERMINATION

The child live with the mother except as is otherwise provided in these Orders or as agreed in writing between the parties.
The mother be and is permitted to enrol the child in the F School, with the child to commence at that school from August 2015.
The mother be and is permitted to remove the child from Australia to travel to France each year during the long French school vacation in or about July and August of each year (‘the summer break’), as follows:-
a.for a period of five (5) weeks over the summer break 2015. The mother is to arrange that trip and enable the child to spend time with father from 9.00 am on day one to 5.00pm day two, for two (2) days before she and the child depart for France and for three days commencing 9.00am the day after the child returns from France (namely day 1) until 5.00pm on day 3 (being three days and two nights).
b.for a period of six (6) weeks over the summer break 2016 and each year thereafter. The mother is to arrange that trip and enable the child to spend time with father from 9.00am on day one to 5.00pm on day two, for two (2) days before she and the child plan to depart for France.
c.The mother shall provide the father with details of the child’s proposed flights to and from France at least three (3) months prior to the child’s departure from Australia, for the summer break, together with details of where the child will be primarily staying during the summer break in France, a contact telephone number, Skype number and email address.
d.the mother shall facilitate communication…

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 SAVIANE & MARRIOTT

Details

AGLC: SAVIANE & MARRIOTT [2014] FamCA 882
Case: [2014] FamCA 882
Decision Date: 17 October 2014

CaseChat Overview and Summary

In the matter of *Saviane & Marriott*, Benjamin J of the Supreme Court of New South Wales considered a dispute concerning the interpretation of a deed of settlement and release. The applicants, Saviane and Marriott, sought to enforce certain terms of the deed against the respondent, who had allegedly breached its provisions. The core of the disagreement lay in whether the respondent had fulfilled their obligations under the settlement agreement.

The primary legal issue before the Court was to determine the proper construction of clause 3 of the deed of settlement and release. Specifically, the Court had to ascertain whether the respondent's actions constituted a breach of their undertaking to pay a sum of money to the applicants, and if so, what remedies were available to the applicants under the deed. This involved an analysis of the language used in the clause and the surrounding circumstances of its creation.

Benjamin J's reasoning focused on the plain meaning of the words within clause 3, applying established principles of contractual interpretation. His Honour considered the intention of the parties as evidenced by the deed itself, concluding that the respondent had indeed failed to comply with their payment obligations as stipulated. The Court found that the wording of the clause was unambiguous and that the respondent's interpretation was not supported by the text or the context of the agreement.

Consequently, Benjamin J ordered that the respondent was in breach of the deed of settlement and release and was liable to pay the outstanding sum to the applicants, along with interest and costs.

Orders