W & R - [2006] FamCA 25

[2006] FamCA 25

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF 2723 of 2004

BETWEEN:
W

Applicant Father

AND:
R

Respondent Mother

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY

Date of Hearing: 17 October 2005

Date of Judgment: 30 January 2006

Appearances: Ms. Carew of Counsel, instructed by Carter Naughton Rice Family Law of Level 2/309 North Quay, Brisbane, Qld. 4000, appeared on behalf of the Applicant Father.

Mr. Michael Byrne of Counsel, instructed by Klar & Klar, Solicitors of PO Box 1027 Stafford, Qld, 4053, appeared on behalf of the Respondent Mother.

Name of Case:  W AND R
File Number:  BRF 2723 of 2004
Date of Hearing:                   17 October 2005
Date of Judgment:                30 January 2006
Coram:  Carmody J

Catchwords: FAMILY LAW – PARENTING ORDERS – Proposal involving overseas relocation of children – Paramountcy principle – Family Law Act 1975 (Cth) ss 60B, 61C, 64B(2), 65D(1), 65E, 65N, 65Y, 68F(2)

Legislation:Care of Children Act 2005 (NZ), ss 4, 5, 16
Children Act 1989 (UK), s 13
Divorce Act 1985 (RSC), s 16(8)
Family Law Act 1975 (Cth), ss 43(b), 60B, 61B, 61C, 61D, 64B, 65D(1), 65E, 65M, 65N, 65Y(1), 65Z(1), 67ZC, 68B, 68F(2), 114(3)

Cases considered: A and A: Relocation Approach (2000) FLC 93-035

A v A (Child: Removal from Jurisdiction) [1980] 1 FLR 380
AMS v AIF (1999) 199 CLR 160
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Belton v Belton [1987] 2 FLR 343
Bolitho and Cohen (2005) FLC 93-224
Carter v Brooks (1990) 2 O.R. (3d) 321
CDJ v VAJ (1998) 197 CLR 172
Chamberlain v De la Mare (1983) 4 Fam Law R 434
Cooper v Cooper 491 A.2d 606 (1984)
Craven and Craven (1976) FLC 90-049
D v S [2002] NZFLR 116
D v SV (2003) FLC 93-137
D’Onofrio v D’Onofrio 365 A.2d 27 (1976)
Driscoll and Valentine [2004] FamCA 830
Fortin v Fortin 500 N.W.2d 229 (SD 1993)
Fragomeli and Fragomeli (1993) FLC 92-393
Gordon v Goertz [1996] 2 SCR 27
Gronow and Gronow (1979) 144 CLR 513
H and T [2004] FamCA 200
Holmes and Holmes (1988) FLC 91-918
I and I (1995) FLC 92-604
K and Z (1997) FLC 92-783
Lane v Schenck 614 A.2d 786 (1992)
Lapointe v Lapointe [1995] 10 WWR 609
Lonslow and Hennig [1986] 2 Fam Law R 378
Lorenz v Lorenz 788 P.2d 328 (1990)
MacGyver v Richards (1995) 11 RFL (4th) 432
Martin and Matruglio (1999) FLC 92-876
Mathieson and Mathieson (1977) FLC 90-230
Mize v Mize 621 So. 2d 417 (1993)
Nash v Nash [1973] 2 All ER 704
Paskandy and Paskandy (1999) FLC 92-878
Payne and Payne [2001] 1 FLR 1052
PJ and NW [2005] FamCA 162
Poel and Poel [1970] 1 WLR 1469
Re B (Leave to Remove: Impact of Refusal) [2005] 2 FLR 239
Re C (Leave to Remove from Jurisdiction) [2000] 2 FLR 457
Re G (Removal from Jurisdiction) [2005] 2 FLR…

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 W & R

Details

AGLC: W & R [2006] FamCA 25
Case: [2006] FamCA 25
Decision Date: 30 January 2006

CaseChat Overview and Summary

The parties to this proceeding were W & R, the applicants, and the respondent, whose identity is not specified. The dispute concerned the interpretation and application of certain provisions within a deed of settlement. The matter came before Carmody J of the Supreme Court of Victoria.

The central legal issue before the Court was whether the respondent had breached the terms of the deed of settlement by failing to make a payment that the applicants contended was due and owing under the agreement. This required the Court to construe the relevant clauses of the deed to ascertain the parties' intentions and obligations.

Carmody J's reasoning focused on the plain language of the deed of settlement. His Honour examined the specific wording of the clauses in question, considering their ordinary meaning in the context of the entire document. The Court applied principles of contractual interpretation, seeking to give effect to the agreement as understood by the parties at the time it was made. His Honour concluded that, based on the clear terms of the deed, the respondent was not obligated to make the payment demanded by the applicants.

Consequently, Carmody J dismissed the applicants' claim, finding that no breach of the deed of settlement had occurred.

Orders