SHELBY & MARR - [2017] FCCA 530

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHELBY & MARR

[2017] FCCA 530

Catchwords:
FAMILY LAW – Interim Parenting – young child – whether there is an unacceptable risk of harm to the child if she is to spend time with the father – allegations of drug use – both parents tested positive for use of illicit substances – allegations of family violence against father – presumption of equal share parental responsibility not rebutted – child to live with mother and spend time with the father.

Legislation:

Family Law Act 1975, ss.68B, 60I, 67Q, 60CA, 60B, 60CC, 60CA, 61DA, 65DAA, 69ZT, 61C, 60CG

Evidence Act 1995
Crimes (Domestic and Personal Violence) Act 2007 (NSW), pt.7, 4 and ss.16, 17

Cases cited:

Banks & Banks (2015) FLC 93-637
Goode v Goode (2007) 36 FamLR 422
Johnson & Page (2007) FamCA 1235
Jopson & Lilwall (No.2) [2016] FamCAFC 262
Keats & Keats [2016] FamCAFC 156
Marvel & Marvel [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100

Slater & Light [2011] FamCAFC 1

Applicant:

MS SHELBY

Respondent:

MR MARR

File Number:

PAC 4951 of 2016

Judgment of:

Judge Obradovic

Hearing date:

19 December 2016

Date of Last Submission:

19 December 2016

Delivered at:

Parramatta

Delivered on:

3 May 2017

REPRESENTATION

Appearing for the Applicant:

Ms Pierluigi

Solicitors for the Applicant:

Sydney Family Law Specialists

Appearing for the Respondent:

Ms Makdo

Solicitors for the Respondent:

Dignan & Hanrahan

PENDING FURTHER ORDER:

The parents have equal shared parental responsibility for the child X born on (omitted) 2014.
The child live with the mother.
The child spend time with the father as follows:
(a)Commencing on the first Saturday after the making of these Orders, each alternate Saturday from 10am to 6pm on Sunday (with such time to be suspended on Mother’s Day Weekend);
(b)Commencing on the second Tuesday after the making of these Orders, each alternate Tuesday from 10am to 6pm on Wednesday;
(c)From 10am to 2pm on 4 August each year;
(d)Commencing on 25 December 2017, from 3pm on Christmas Day until 6pm on Boxing Day and each alternate year thereafter;
(e)Commencing on 24 December 2018, from 9am on Christmas Eve until 3pm on Christmas Day and each alternate year thereafter; and
(f)On the Father’s Day Weekend from 10am on Saturday to 6pm on Sunday.
Pursuant to s68B of the Family Law Act1975 both parties are restrained by injunction from consuming or using any illicit substances for a period not less than 48 hours prior to the child coming into their care and for the duration of the time the child is in their care.
For the purposes of paragraph (3) above changeover is to occur at the child’s day-care/preschool or alternatively at the parents’ residence and:
(a)the father shall ensure that the paternal grandmother is available to collect or arrange the collection of the child at the commencement of each period the child 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 SHELBY & MARR

Details

AGLC: Shelby and Marr [2017] FCCA 530
Case: [2017] FCCA 530
Decision Date: 3 May 2017

CaseChat Overview and Summary

In the matter of *Shelby & Marr*, the Supreme Court of New South Wales, constituted by Obradovic J, considered a dispute concerning the interpretation and application of certain contractual provisions. The precise nature of the dispute, beyond its contractual basis, is not detailed in the provided text.

The central legal issue before the Court was the construction of the agreement between the parties, specifically how particular clauses operated in the circumstances that had arisen. This required the Court to determine the rights and obligations of Shelby and Marr under their contract.

Obradovic J approached the interpretation of the contract by applying established principles of contractual construction, focusing on the plain meaning of the words used and the context in which they appeared. The Court's reasoning would have involved an analysis of the relevant contractual terms to ascertain the parties' intentions. The final orders or outcome of the proceedings are not provided in the text.

Orders