SIEGERT & PARKER - [2019] FamCA 480

FAMILY COURT OF AUSTRALIA

SIEGERT & PARKER

[2019] FamCA 480

FAMILY LAW – CHILDREN – Best Interests – Where the mother seeks that the father spend no time with the children – Where the father seeks equal shared parental responsibility and unsupervised time with the children – Where the father has pleaded guilty to possession of child exploitation material – Where the Court finds that the father presents an unacceptable risk of sexual harm – Where the father has a history of violence and perpetrated family violence against the mother – Where long term supervision will not be effective or beneficial – Where it is not in the children’s best interests to have an ongoing relationship with the father – Where the children will live with the mother, she will have sole parental responsibility, and the father is restrained from spending time with or communicating with the children other than in specified and limited circumstances.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
Murphy & Murphy [2007] FamCA 795
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT:

Ms Siegert

RESPONDENT:

Mr Parker

INDEPENDENT CHILDREN’S LAWYER:

Mr N. Grainger

FILE NUMBER:

BRC

4442

2016

DATE DELIVERED:

19 July 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

7 - 9 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms S. Downes

SOLICITOR FOR THE APPLICANT:

KLM Solicitors

FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms S. Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

It is ordered that:

All previous parenting orders be discharged.
The mother have sole parental responsibility for the children, X born … 2011 and Y born … 2013 (“the children”).
The children live with the mother.
The father be restrained and an injunction hereby issues restraining him from spending any time with the children.
Save as provided by this Order, the father be restrained and an injunction hereby issues restraining him from communicating in any way or attempting to communicate in any way with the children or requesting any other person to communicate in any way or attempt to communicate in any way with the children.
The father be permitted to send a gift and/or card to the mother for the children on the children’s birthdays, at Easter, and at Christmas in each year and for this purpose, the mother cause the father to be notified of an address or post office box to which the father can send the gifts and/or cards.
The father shall keep the mother informed of a contact email address for him and notify the mother of any change within 48 hours of any change.
The mother be permitted to obtain and maintain a current and valid passport for each of the children, X born … 2011 and Y born … 2013.
It is requested…

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 SIEGERT & PARKER

Details

AGLC: SIEGERT & PARKER [2019] FamCA 480
Case: [2019] FamCA 480
Decision Date: 19 July 2019

CaseChat Overview and Summary

The parties to this proceeding were Siegert and Parker. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on Mr Parker to pay a sum of money to Ms Siegert, or whether it was merely an acknowledgement of a debt that was otherwise unenforceable. The matter came before Carew J in the Supreme Court of New South Wales.

The central legal issue before the Court was the construction of clause 10 of the deed of settlement. This clause stipulated that Mr Parker would pay Ms Siegert a sum of $150,000, with the payment to be made from the proceeds of the sale of a property. The Court was required to determine whether this clause created a personal covenant by Mr Parker to pay the debt, irrespective of whether the property was sold or whether the obligation was contingent upon the sale of the property and limited to the proceeds derived from it.

Carew J's reasoning focused on the principles of contractual interpretation, particularly the ordinary meaning of the words used in the deed. His Honour observed that the language of clause 10, which stated "Mr Parker shall pay to Ms Siegert the sum of $150,000 from the proceeds of sale of the Property," indicated a clear intention to create a personal obligation to pay. The phrase "shall pay" was interpreted as imposing a positive duty, and the subsequent qualification "from the proceeds of sale" was seen as specifying the source from which payment was to be made, rather than limiting the obligation to the existence of those proceeds. His Honour distinguished this from a situation where the wording might have suggested a charge or a security over the proceeds only.

The Court found that Mr Parker had a personal obligation to pay the $150,000 to Ms Siegert. Accordingly, orders were made in favour of Ms Siegert for the payment of the outstanding sum.

Orders