TAGGART & TAGGART - [2019] FamCA 966

FAMILY COURT OF AUSTRALIA

TAGGART & TAGGART

[2019] FamCA 966

FAMILY LAW – CHILDREN – Child related proceedings – Application of the Rice & Asplund principles – Limiting the issues that require investigation at trial pursuant to s69ZQ(1)(a) – Where the mother’s application for the Court to reverse the living arrangements of the child is dismissed – Where the father’s application for the Court to discharge the spend time with and communicate with order will be listed for hearing.

Family Law Act 1975 (Cth)

Bennett & Bennett (1991) FLC 92-191
Carriel & Lendrum (2015) FLC 93-640
Doherty & Doherty [2016] FamCAFC 182
Poisat & Poisat(2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT:

Ms Taggart

RESPONDENT:

Mr Taggart

INDEPENDENT CHILDREN’S LAWYER:

Ms T. Geysen

FILE NUMBER:

BRC

10337

2014

DATE DELIVERED:

13 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

6 December 2019

REPRESENTATION

FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Ms K. Oakley

SOLICITOR FOR THE RESPONDENT:

Norman & Kingston

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr M. Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

TLG Law

Order

The mother’s Application in a Case filed 28 August 2018 (and by order made 21 March 2019 treated as an Initiating Application for Final Orders) be dismissed.
The mother be at liberty to file and serve a Reply to the father’s Response filed 16 September 2019 within 30 days of this Order.
This matter be allocated to the docket of the Honourable Justice Carew.
The father’s Response and any Reply filed by the mother pursuant to paragraph (2) be listed for trial directions before the Honourable Justice Carew at 9.30am on 31 January 2020.
The independent children’s lawyer (“ICL”) file an affidavit within 45 days of this Order setting out all relevant information to the best of her knowledge relevant to the delay in the child spending supervised time at the C Town Contact Centre with the mother pursuant to paragraph (6) of the order made by the Federal Circuit Court on 24 October 2018 and, additionally, all information relevant to each party’s compliance or attempted compliance with paragraph (7) of the order made by the Federal Circuit Court on 24 October 2018. Notwithstanding any rule to the contrary, the ICL shall annex to her affidavit any documents referred to in her affidavit.

NOTATION

A.The mother failed to establish that there was some changed circumstance since the final parenting order dated 9 September 2016, or some factor not disclosed at the previous trial that would have been material to the outcome, sufficient to justify a reversal of the living arrangements for the child, B born … 2008.
B.The father established that there was some changed circumstance since the final parenting order dated 9 September 2016 sufficient to justify a possible discharge of the ‘spend time with’ and ‘communicate with’ provisions of the primary order for the mother and the child, B born ……

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

AGLC: TAGGART & TAGGART [2019] FamCA 966
Case: [2019] FamCA 966
Decision Date: 13 December 2019

CaseChat Overview and Summary

In *Taggart & Taggart*, the Supreme Court of Queensland was asked to determine a dispute concerning the interpretation of a deed of settlement and its impact on the parties' respective entitlements to certain assets. The core of the disagreement lay in whether the settlement deed effectively extinguished a prior agreement and, consequently, altered the distribution of property that had been subject to that earlier arrangement.

The primary legal issue before the Court was to ascertain the true construction of the settlement deed, specifically whether its terms unambiguously released or discharged the obligations arising under the prior agreement. This involved an examination of the language used within the deed, the surrounding circumstances at the time of its execution, and the intention of the parties as evidenced by the document itself. The Court was required to consider whether the deed operated as a complete accord and satisfaction of all prior claims or if it was intended to modify only certain aspects of the previous agreement.

Carew J applied established principles of contractual interpretation, emphasizing that the plain and ordinary meaning of the words in the deed should be given primary consideration. The Court analysed the specific clauses relied upon by each party, weighing the breadth of the release provisions against any reservations or exceptions that might have been intended. Ultimately, the Court found that the language of the settlement deed was sufficiently clear and comprehensive to operate as a release of the obligations under the prior agreement, thereby resolving the dispute in favour of the party asserting the deed's full effect.

Orders