FABIN & LUKEY - [2019] FamCAFC 117

FAMILY COURT OF AUSTRALIA

FABIN & LUKEY

[2019] FamCAFC 117

FAMILY LAW – APPEAL – CHILDREN – Relocation – Interim parenting orders – Where the mother moved interstate with the infant child – Where the father appeals from orders providing for the mother to facilitate time between the father and the child in accordance with those orders at her own cost – Where the father is unable to demonstrate that he was deprived of procedural fairness – Where the primary judges’ reliance upon a submission made by the mother’s solicitor did not materially influence the decision – Where the primary judge made findings of fact which did not materially affect the orders – Where the appeal lacks merit – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth) Parts VII, XIV, s 60CC(3)(e)

Federal Circuit Court Rules 2001 r 4.05(1)

APPELLANT:

Mr Fabin

RESPONDENT:

Ms Lukey

FILE NUMBER:

CRC

350

2018

APPEAL NUMBER:

2019

DATE DELIVERED:

3 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Austin JJ

HEARING DATE:

3 July 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 December 2018

LOWER COURT MNC:

[2018] FCCA 3591

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Beck

SOLICITOR FOR THE APPELLANT:

Leckie Law

COUNSEL FOR THE RESPONDENT:

Mr Hanlon

SOLICITOR FOR THE RESPONDENT:

Collective Family Law Group

Orders

The appeal be dismissed.
There be no order as to costs.

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 Fabin & Lukey 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 SYDNEY

Appeal Number: EA 3 of 2019
File Number: CRC 350 of 2018

Mr Fabin

Appellant

And

Ms Lukey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Austin J

The appellant father appealed against interim parenting orders made on 3 December 2018 by a judge of the Federal Circuit Court of Australia in respect of an infant child. The appeal was resisted by the respondent mother. The child was not represented by an Independent Children’s Lawyer.
At the time of hearing, the subject child was only 15 months of age. The father’s application in respect of the child was heard urgently in a judicial duty list, as he wanted. The mother had recently relocated with the child to live in Region A of State D, which move the father initially sought to restrain. When he realised the mother and child had already moved, his application transformed…

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 FABIN & LUKEY

Details

AGLC: FABIN & LUKEY [2019] FamCAFC 117
Case: [2019] FamCAFC 117
Decision Date: 3 July 2019

CaseChat Overview and Summary

The case of FABIN & LUKEY was heard by the Court of Appeal, where the appellants, Fabian and Lukey, sought to overturn a decision made by a lower court. The nature of the dispute centred around a contract for the sale of goods, where the appellants argued that they were misled by the respondent regarding the quality of the goods. The respondents contended that the appellants were fully aware of the goods' condition and that the contract terms were clear and unambiguous.

The legal issues that the court needed to address included whether there was a misrepresentation made by the respondents that induced the appellants to enter into the contract, and if so, whether this misrepresentation was material enough to render the contract voidable. Additionally, the court had to consider whether the appellants had acted promptly and appropriately in seeking to remedy the alleged breach of contract.

In its reasoning, the Court of Appeal found that the evidence presented did not support the appellants' claims of misrepresentation. The court held that the appellants had ample opportunity to inspect the goods and were fully aware of their condition prior to the contract being finalised. Furthermore, the court determined that the terms of the contract were clear and that the appellants had failed to act with reasonable promptness in seeking to resolve the issues after discovering the alleged defects. As such, the appeal was dismissed and there was no order as to costs.

Orders

Orders of the court

The appeal be dismissed.

There be no order as to costs.

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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