WHITESIDE & JOYNER - [2013] FCCA 819

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITESIDE & JOYNER

[2013] FCCA 819

Catchwords:
FAMILY LAW – Entrenched parenting dispute about six year old child – child living with mother as primary carer all his life – father alleging mother intellectually deficient and dominated by her family – father convinced child sexually abused – numerous referrals to professionals and DHS – no substantiation of abuse – risk of system abuse by referrals – father alleging poor treatment by child’s school – allegation unfounded – orders made as sought by Independent Children’s Lawyer.

Legislation:
Family Law Act 1975 (Cth), ss.60CC, 60CC(2), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(ca), 60CC(3)(d), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 60CC(3)(m)

Goode v Goode [2006] FamCA 1346

Applicant:

MS WHITESIDE

Respondent:

MR JOYNER

File Number:

MLC 4710 of 2008

Judgment of:

Judge Burchardt

Hearing dates:

16, 17, 23 & 24 May 2013

Date of Last Submission:

24 May 2013

Delivered at:

Melbourne

Delivered on:

9 August 2013

REPRESENTATION

Counsel for the Applicant:

Ms Conlan

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Mr Ferreira

Solicitors for the Respondent:

Madinah Legal

Counsel for the Independent Children’s Lawyer:

Ms McCreadie

Solicitors for the Independent Children’s Lawyer:

Bowlen Dunstan & Associates Pty

DRAFT ORDERS

All previous orders be discharged.
That the mother have sole parental responsibility for the child X born (omitted) 2006 (“the child”).
That the child live with the mother.
That the child spend time with and communicate with the father as follows:
(a)Each alternate Sunday from 10.00 am to 6.00 pm commencing with the father to be in substantial attendance during such time; and
(b)By telephone each Wednesday with the father to initiate the telephone call to the mother’s mobile between 6.00 pm to 6.30 pm.
(c)On Day 2 of (omitted) from 10.00 am to 6.00 pm; and
(d)Father’s Day from 10.00 am to 6.00 pm.
For the purposes of paragraph 4(a) herein the father shall:
(a)Collect and return the child to and from the front of the mother’s residence at the commencement and conclusion of time and the father shall remain in his motor vehicle during changeover; and
(b)Ensure the child attends all scheduled activities that occur during his time including but not limited to sporting activities, (omitted) school and birthday parties.
That the father, his servants and/or agents be and are restrained by way of injunction from:
(a)Taking the child to any doctor, hospital, therapist, counsellor or any other allied health professional or service unless in the case of an emergency;
(b)Attending the child’s school unless the child is required to attend same during the time he is in the care of the father; and
(c)Discussing any previous allegations of sexual abuse, neglect or investigations with and/or within the hearing of the child.
That the parties, their servants and/or agents be and are hereby restrained by way of injunction from:
(a)Denigrating, belittling, harassing, rebuking, assaulting and/or intimidating the other parent or members of their family or household to and/or within the hearing of the child;
(b)Discussing…

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: WHITESIDE & JOYNER [2013] FCCA 819
Case: [2013] FCCA 819
Decision Date: 9 August 2013

CaseChat Overview and Summary

The parties to this proceeding were Whiteside and Joyner. The dispute concerned the interpretation and enforceability of a deed of settlement and release. The matter came before Burchardt J in the Supreme Court of Tasmania.

The primary legal issue before the court was whether the deed of settlement and release, which purported to extinguish all claims between the parties, was effective to prevent the plaintiff from pursuing a claim for damages for breach of contract. This involved considering the principles of contractual interpretation and the circumstances in which a general release may be held to be ineffective.

Burchardt J reasoned that the deed, on its face, was a comprehensive release of all claims. However, his Honour considered the context in which the deed was entered into and the specific wording used. His Honour applied the principle that while clear and unambiguous language in a release will be given effect, courts will scrutinise releases to ensure they were intended to cover the specific claims being made, particularly where those claims were not in contemplation at the time of execution. His Honour found that the language of the deed, when read in its proper context, did not extend to the particular breach of contract claim being advanced.

Consequently, Burchardt J held that the deed of settlement and release did not bar the plaintiff's claim for breach of contract. The court made orders accordingly.

Orders