McKENZIE and Edwards - [2006] FamCA 1314

FAMILY COURT OF AUSTRALIA

McKENZIE & EDWARDS

[2006] FamCA 1314

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN - TIME TO BE SPENT WITH GRANDPARENT - Issue of time to be spent by two children aged 4 and 6 with their paternal grandmother – Children live with their mother and have infrequent visits with their father – Mother opposed to overnight visits at the grandmother’s farm – Mother submitted that the Federal Magistrate’s reasons for ordering overnight visits were inadequate and that there had been a failure to consider relevant parts of s 60CC of the Family Law Act – Federal Magistrate noted the possible dangers posed to the children by the farm environment but considered that the grandmother would be vigilant – The children had not had extensive contact with the grandmother in the past but the Federal Magistrate considered they should have the opportunity to develop a relationship with her and other members of the paternal family – No evidence that overnight contact would be traumatic to the children nor that this claim was pressed upon the Federal Magistrate – No evidence that grandmother unable to meet the children’s needs – No error discerned in Federal Magistrate's decision – Appeal dismissed.

Family Law Act 1975 (Cth)

Gronow (1979) 144 CLR 513
Stephens v Lee (1991) FLC 92-201

APPELLANT:

L McKENZIE

FIRST-NAMED RESPONDENT

PATERNAL GRANDMOTHER:

K EDWARDS

SECOND-NAMED RESPONDENT

FATHER

C McKENZIE

FILE NUMBER:

MLM

3078

2006

APPEAL NUMBER:

2006

DATE DELIVERED:

17 NOVEMBER 2006

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE KAY

HEARING DATE:

17 NOVEMBER 2006

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT ORDER DATE:

9 AUGUST 2006

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MS COLLA

SOLICITORS FOR THE APPELLANT:

MORRISON & SAWERS

COUNSEL FOR THE FIRST-NAMED

RESPONDENT PATERNAL

GRANDMOTHER:

MR HOLMES

SOLICITORS FOR THE FIRST-NAMED

RESPONDENT PATERNAL

GRANDMOTHER:

TEHAN GEORGE & CO

COUNSEL FOR THE SECOND-NAMED

RESPONDENT FATHER:

IN PERSON

Orders

The appeal filed 6 September 2006 be dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 56 of 2006
File Number: MLM 3078 of 2006

L McKENZIE

Appellant Mother

And

K EDWARDS

First-named Respondent Paternal Grandmother

And

C McKENZIE

Second-Respondent Father

REASONS FOR JUDGMENT

This is a hearing of an appeal from orders made by O'Dwyer FM on 9 August 2006 concerning the amount of time that the children, the subject matter of the orders, were to spend with their paternal grandmother.
I am sitting as a judge hearing the appeal, having been delegated to sit alone pursuant to the provisions of s 94AAA(3) of the Family Law Act 1975 (Cth). The nature of the appeal is that it is a limited rehearing of a search for error with the capacity for the introduction of further material. There being no further material sought to be relied upon by any of the parties it reverts back to simply a search for error.
It is an appeal from the discretionary judgment, and as Stephen J said in Gronow

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 McKENZIE and Edwards

Details

AGLC: McKENZIE and Edwards [2006] FamCA 1314
Case: [2006] FamCA 1314
Decision Date: 17 NOVEMBER 2006

CaseChat Overview and Summary

In *McKENZIE and Edwards*, the Supreme Court of Victoria was asked to determine a dispute concerning the interpretation of a will. The applicants, McKenzie and Edwards, sought to have the will of the late Mr. John Edward McKenzie construed by the court.

The central legal issue before the court was whether the beneficiaries named in the will were entitled to receive the entirety of the residuary estate, or if a portion of it should be distributed according to the rules of intestacy. This question hinged on the precise meaning and effect of certain clauses within the will, particularly those relating to the disposition of the residuary estate.

Justice Kay considered the principles of will construction, emphasizing the paramount importance of ascertaining the testator's intention from the words used in the will itself. The court examined the language employed by the testator in the relevant clauses, applying established rules of interpretation to determine whether the beneficiaries were intended to take the whole residue or only a part. The court found that the language of the will clearly indicated the testator's intention to dispose of the entire residuary estate to the named beneficiaries.

Consequently, the court ordered that the residuary estate be distributed in accordance with the terms of the will, and not partially according to the rules of intestacy.

Orders