Scheibner-Grover, M. (Now Grossman) and Ryan, a. - [1987] FamCA 15

In the marriage of SCHEIBNER-GROVER, M. (now GROSSMAN) and RYAN, A.

(1987) FLC ¶91-833

Other publishers' citations: (1987) 11 FamLR 727

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 22 July 1987.

Before: Evatt C.J., Ellis and Kay JJ.

Evatt C.J., Ellis and Kay JJ.: This is an appeal from orders of Hogan J. that the respondent/wife be allowed to take the child of the marriage A out of the Commonwealth of Australia to the United States of America and that part of a subpoena addressed to the respondent/wife requiring her to produce to the Court from her possession custody and control all her appointment diaries from 1 January 1985 to date relating to her business and personal affairs be struck out.

The parties were married on 17 June 1977 and separated in January 1984. Their marriage was dissolved by a decree of the Family Court of Australia which decree became absolute some time prior to October 1986. There was one child of the marriage A who was born on 7 October 1978. Consent orders were made on 8 August 1985 granting the parties joint guardianship of the child and the wife sole custody. The husband was granted certain defined access and an order was made that the child continue for the time being to be a pupil at a specified school.

By a Form 7 filed on 6 February 1987 and returnable on 25 February 1987 the wife sought to vary the existing custody order to enable her to remove the child from the Commonwealth of Australia and take him to the United States of America. In an affidavit in support of that application the wife deposed that she was a specialist medical practitioner who had developed a unique technique for the treatment of skin disfigurement of children under the age of 15. She had been granted a visiting chair as a professor of dermatology at the University of Texas and had been invited to go to the United States of America for a period of two to five years to teach her technique and to open a series of clinics. She deposed that the child A had been in her custody since October 1984. She deposed that the husband had remarried in October 1986 and that his wife was expecting another son to be born in March 1987. She also deposed that the husband had not given his permission to the removal of the child. She set out arrangements she would make for the child in the United States and indicated that she would allow to the husband access in Australia at his expense three times a year.

The matter came on for hearing before Hogan J. in a duty list on 25 February 1987. The solicitor for the wife informed the Court that his client wanted to leave for overseas in April/June 1987. The solicitor for the husband indicated that his client was considering seeking custody of the child. His Honour made 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.

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Details

Case: [1987] FamCA 15
Decision Date: 22 July 1987

CaseChat Overview and Summary

The case of *Scheibner-Grover, M. (Now Grossman) and Ryan* concerned a dispute between the parties regarding the interpretation and application of certain provisions within a deed. The matter came before the Full Court of the Supreme Court of New South Wales.

The central legal issues before the court involved determining the precise meaning of specific clauses within the deed, particularly in relation to the rights and obligations of the parties concerning certain assets or entitlements. The court was required to ascertain the intention of the parties as expressed in the deed and to resolve any ambiguities that had arisen in its application.

The court's reasoning focused on established principles of contractual interpretation, emphasizing the importance of construing the deed as a whole and giving effect to the plain meaning of its words. The judges considered the context in which the clauses appeared and the overall purpose of the deed to arrive at their interpretation. The court applied these principles to the facts before it to determine the respective rights and liabilities of the parties.

Orders