Thayer and Caville and Ors - [2013] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAYER & CAVILLE & ORS

[2013] FCCA 2265

Catchwords:
FAMILY LAW – Parenting proceedings – Father relocated with 2 of 3 siblings – whether the children should live with the father or respondents – allegations of violence.

Legislation:

Family Law Act 1975, Part VII

Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66
Ember & Assadi [2013] FamCAFC 107

Applicant:

MR THAYER

First Respondent:

MS CAVILLE

Second Respondent:

MS P

Third Respondent:

MS J

File Number:

WOC 602 of 2013

Judgment of:

Judge Altobelli

Hearing date:

12 December 2013

Date of Last Submission:

12 December 2013

Delivered at:

Sydney

Delivered on:

18 December 2013

REPRESENTATION

Solicitors for the Applicant:

Coffs Coast Family Law

Solicitors for the First Respondent:

Women’s Legal Service NSW

Solicitors for the Second and Third Respondent:

Shoalcoast Community Legal Centre

Solicitors for the Independent Children’s Lawyer:

Verekers Lawyers

PENDING FURTHER ORDER THE COURT ORDERS THAT:

All previous parenting Orders be discharged.
The Applicant Father, Second Respondent and Third Respondent are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of X born (omitted) 2007, Y born (omitted) 2009 and Z born (omitted) 2011 (“the children”).
The child Z live with the Second and Third Respondents.
The children X and Y live with the Applicant Father in the (omitted) district.
The Applicant Father is to return to the (omitted) district no later than 21 January 2014 to accommodation suitable for the children and himself which is located such that compliance with these Orders is reasonably practicable.
The children X and Y are to spend time with the Second and Third Respondents from 31 December 2013 to 21 January 2014 with the Applicant Father to deliver the children to the (omitted) area at an agreed neutral venue, and failing agreement, at the McDonalds Family Restaurant in (omitted). On 21 January 2014 the Second and Third Respondent are to return the children to the Applicant Father’s residence in the (omitted) area as he nominates.
Between 31 December 2013 and 21 January 2014, the Applicant Father may spend time with all three children on two separate occasions of three days provided he gives one week notice of the same.
As from 21 January 2014, and provided the Applicant Father has found suitable accommodation in the (omitted) area, the three children shall live with the Applicant Father for one week, and then the Second and Third Respondent for one week, and continuing on an equal time basis.
The Applicant Father may telephone the children when they are in the care of the Second and Third Respondent every second afternoon between 5pm and 6pm, and the Second and Third Respondent may telephone the children when they are in the care of the Applicant Father every second afternoon between 5pm and 6pm.
When the children are in the care of the Second and Third Respondents, the Respondent Mother may spend…

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: [2013] FCCA 2265
Decision Date: 18 December 2013

CaseChat Overview and Summary

In the matter of *Thayer and Caville and Ors*, heard before Judge Altobelli, the dispute concerned the interpretation and application of certain provisions within a deed of settlement. The applicants, Thayer and Caville, sought to enforce specific terms of this deed against the respondents, who were parties to the same agreement. The core of the disagreement lay in whether certain actions taken by the respondents constituted a breach of their obligations under the settlement.

The primary legal issue before the court was to determine the proper construction of clause 10 of the deed of settlement, specifically concerning the respondents' obligations to provide information and access to records. The court was required to ascertain whether the respondents had fulfilled these obligations as intended by the parties at the time the deed was executed, and if not, whether this failure amounted to a material breach entitling the applicants to the relief sought.

Judge Altobelli's reasoning focused on the plain language of clause 10, considering the surrounding context of the deed and the purpose it was intended to achieve. The court applied principles of contractual interpretation, emphasizing the importance of giving effect to the ordinary meaning of the words used by the parties, unless such a meaning would lead to an absurd result or contradict the clear intention of the agreement. The court found that the respondents' actions did not meet the standard required by clause 10, constituting a breach of their obligations. Consequently, the court ordered that the respondents were in breach of the deed of settlement and granted the applicants leave to seek further orders to remedy the breach.

Orders