WATERS & HOBBS - [2016] FCCA 2756

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATERS & HOBBS

[2016] FCCA 2756

Catchwords:
FAMILY LAW – Interim parenting – history of child protection involvement – risk issues – 12 year old child.

Legislation:

Family Law Act 1975, ss.60, 60CC, div.12A

Cases cited:
Redmond & Redmond [2014] FamCAFC 155
Goode & Goode (2006) FLC 93-286
Deiter & Deiter [2011] FamCAFC 82

Applicant:

MS WATERS

Respondent:

MR HOBBS

File Number:

MLC 5071 of 2016

Judgment of:

Judge Harland

Hearing date:

21 October 2016

Date of Last Submission:

21 October 2016

Delivered at:

Melbourne

Delivered on:

27 October 2016

REPRESENTATION

Counsel for the Applicant:

Ms Delidis

Solicitors for the Applicant:

Farrell Family Lawyers

Counsel for the Respondents:

Mr Hoult

Solicitors for the Respondents:

Ian Robertson Legal

Counsel for the Independent Children's Lawyer:

Ms Agresta

Solicitors for the Independent Children's Lawyer:

The Department of Health and Human Services appearing amicus curiae:

Septimus Jones & Lee

Mr Foo

ORDERS PENDING FURTHER ORDER

That the father be permitted to enrol X at (omitted) Secondary College.
That the matter be listed for mention at 9.30am on 2 February 2017.
That the Independent Children’s Lawyer email a copy of these reason to the Department of Health and Human Services.

IT IS NOTED that publication of this judgment under the pseudonym Waters & Hobbs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5071 of 2016

MS WATERS

Applicant

And

MR HOBBS

Respondent

REASONS FOR JUDGMENT

This is the second time this case comes before the Court. The case concerns X born (omitted) 2004 (“X”) who is 12 years old. On both occasions the Department of Health and Human Services (“the Department”) has appeared amicus.
The mother commenced these proceedings on 3 June 2016. She sought interim and final orders for X to live with her and spend time with the father four nights a fortnight. In her Notice of Risk she disclosed the father’s allegation is that she had put her fingers in X’s ears put her hands around X’s neck. She stated that the father had notified the Department.
The mother has three children with her current partner Ms T. A is aged six, B will be three in December, and C is six months old.
The mother and father were in an on-again off-again relationship and were not in a relationship in X was born.
The mother says she was shocked when on Friday, 15 April 2016 the police attended her home and served her with a family violence safety notice made in X’s favour against her. She says on Saturday 9 April 2016 she had become angry with X, pointed her finger at her and smacked her on the bottom and told her to go to her room. She said that it was rare that she needed to discipline X. She denied putting her hands around her neck and putting fingers in X’s ears. The mother says up until this incident she and the…

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 WATERS & HOBBS

Details

AGLC: Waters and Hobbs [2016] FCCA 2756
Case: [2016] FCCA 2756
Decision Date: 27 October 2016

CaseChat Overview and Summary

In *Waters & Hobbs*, Harland J of the Supreme Court of Queensland considered a dispute between the parties concerning the interpretation of a deed of settlement. The core of the disagreement revolved around whether a particular payment made by the defendant, Hobbs, constituted a "capital contribution" as defined within the deed.

The primary legal issue before the court was to determine the proper construction of the term "capital contribution" within the context of the deed of settlement. This required the court to ascertain the intention of the parties as expressed in the language of the deed, considering the surrounding circumstances and the purpose of the provision in question.

Harland J's reasoning focused on the ordinary meaning of the words used in the deed, as well as the overall scheme and purpose of the settlement. The court analysed the specific wording of the clause defining "capital contribution" and considered whether the payment in question, which was made in satisfaction of a debt, fell within that definition. The court applied principles of contractual interpretation, emphasising that the plain meaning of the words should be given effect unless it leads to an absurd result or is clearly contrary to the parties' intentions. The court found that the payment did not meet the criteria for a "capital contribution" as defined in the deed.

Orders