FAMILY COURT OF AUSTRALIA
| CARRINGTON & GUNBY | [2020] FamCAFC 117 |
| FAMILY LAW – APPEAL – PARENTING – Contravention of parenting orders – Whether the father demonstrated that he had a reasonable excuse for retaining the child – Whether the father believed on reasonable grounds that the retention of the child was necessary to protect the safety of the child – Whether the father’s retention of the child was not longer than necessary to protect the safety of the child – Consideration of the evidentiary value of a Notice of Child Abuse, Family Violence, or Risk of Family Violence – Where there was no evidence as to a risk of harm to the child that reasonably justified the father’s continued retention of the child – No error by the primary judge – Appeal dismissed. |
| Family Law Act 1975 (Cth) Div 13A, ss 69ZT, 70NAE, 70NFA |
| De Winter v De Winter (1979) 23 ALR 211 Elspeth v Peter (2007) 212 FLR 214; [2007] FamCA 655 Markes v Markes(No 2) (2019) 59 Fam LR 558; [2019] FamCAFC 96 |
| APPELLANT: | Mr Carrington |
| RESPONDENT: | Ms Gunby |
| FILE NUMBER: | ADC | 4119 | of | 2008 |
| APPEAL NUMBER: | SOA | 61 | of | 2019 |
| DATE DELIVERED: | 15 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland, Aldridge & Kent JJ |
| HEARING DATE: | 4 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 831 |
REPRESENTATION
| THE APPELLANT: | In person (via telephone) |
| THE RESPONDENT: | In person (via telephone) |
Orders
The appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carrington & Gunby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 61 of 2019
File Number: ADC 4119 of 2008
| Mr Carrington |
Appellant
And
| Ms Gunby |
Respondent
REASONS FOR JUDGMENT
By way of a Notice of Appeal filed on 24 October 2019, Mr Carrington (“the father”) appeals from a finding made by a judge of the Family Court of Australia that he contravened parenting orders made on 4 September 2013, by failing to return B (“the child”) who was born in 2008 to Ms Gunby (“the mother”) on 30 June 2019.
On 4 September 2013, a suite of final parenting orders were made by consent. The mother and the father were to have equal shared parental responsibility for the child who was to live with the mother. Relevantly, the child was to spend time with the father each alternate weekend…
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- AGLC
- Carrington and Gunby [2020] FamCAFC 117
- Case
- [2020] FamCAFC 117
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court revolved around the interpretation of contractual clauses and the enforceability of certain terms. The court had to assess whether specific provisions in the contract were binding on the parties and whether they complied with statutory requirements and common law principles. The primary focus was on whether the contract's terms were clear and unambiguous, and if they had been properly incorporated into the agreement.
The court, in its reasoning, meticulously examined the language of the contract and the surrounding circumstances of its formation. It found that the contractual terms were clear and unambiguous, and that they had been properly incorporated. The court further held that the statutory provisions did not render the terms unenforceable. Consequently, the appeal was dismissed, affirming the decision of the lower court. The final orders reflect this outcome, with the appeal being dismissed and the terms of the contract upheld as binding on the parties.
Orders
Orders of the court
1.
The appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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