Carrington and Gunby - [2020] FamCAFC 117

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

2008

APPEAL NUMBER:

SOA

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…

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 Carrington and Gunby

Details

AGLC: Carrington and Gunby [2020] FamCAFC 117
Case: [2020] FamCAFC 117
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the case of Carrington and Gunby, the dispute arose between the parties involved in a land transaction. The matter was brought before the court to determine the validity of certain clauses in a contract and their implications for the parties. The High Court of Australia was the forum for this legal battle, tasked with resolving the significant issues presented.

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

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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