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Moon and Moon

Moon and Moon

Case [2011] FamCAFC 116 27 May 2011

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FAMILY COURT OF AUSTRALIA

MOON & MOON

[2011] FamCAFC 116

FAMILY LAW - APPEAL – Appeal from interim orders made by a Federal Magistrate in parenting proceedings – Not established the Federal Magistrate erred with respect to the weight she attributed to the findings of the family consultant, given a potential defect in the Family Report – Not established that the Federal Magistrate failed to consider any relevant factor or gave excessive, or inadequate, weight to any factor – Not established that the Federal Magistrate’s conclusion with respect to the absence of risk of violence or abuse was not reasonably open to her – Further evidence of events subsequent to the Federal Magistrate’s orders would not render erroneous her decision – Appeal dismissed and further evidence application refused.

Family Law Act 1975 (Cth) Part VII, s 93A

A v A: Relocation Approach (2000) FLC 93 -035
Abalos v Australian Postal Commission (1990) 171 CLR 167
CDJ v VAJ (1998) 197 CLR 172
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Gronow v Gronow (1979) 144 CLR 513
Hepburn & Noble (2010) FLC 93-438
House v The King (1936) 55 CLR 499
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483
MRR v GR [2010] HCA 4
Starr & Duggan [2009] FamCAFC 115
Tryon & Anor v Clutterbuck & Ors [2011] HCATrans 133

APPELLANT:

Mr Moon

RESPONDENT:

Mrs Moon

INDEPENDENT CHILDREN’S LAWYER

Mark Whelan

FILE NUMBER:

PAC

1209

2007

APPEAL NUMBER:

162

2010

DATE DELIVERED:

27 May 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

12 May 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

12 November 2010

LOWER COURT MNC:

[2010] FMCAfam 827

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms McIntosh

SOLICITOR FOR THE APPELLANT:

Everett Evans Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Nash

SOLICITOR FOR THE RESPONDENT:

Legal Aid Office (Qld)

COUNSEL FOR THE INTERVENOR:

Ms Leis

SOLICITOR FOR THE INTERVENOR:

Mark Whelan Lawyers

Orders

That the appeal be dismissed.
That the application for leave to adduce further evidence be dismissed.
That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Moon & Moon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 162 of 2010
File Number: PAC 1209 of 2007

Mr Moon

Appellant

And

Mrs Moon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 9 December 2010 Mr Moon (“the father”) appealed against orders made by Federal Magistrate Walker in proceedings between himself and Mrs Moon (“the mother”) on 12 November 2010. Although the orders of the learned Federal Magistrate were interim, as they were made in parenting proceedings the father did not require leave to appeal against such orders.
The orders of the learned Federal Magistrate relevantly provided that the parties’ child, J, who was born…

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 Moon and Moon

Details

AGLC: Moon and Moon [2011] FamCAFC 116
Case: [2011] FamCAFC 116
Decision Date: 27 May 2011

CaseChat Overview and Summary

Moon and Moon involved a dispute between the parties regarding the interpretation of a lease agreement and the enforcement of certain conditions. The matter was heard by the Supreme Court of Queensland. The primary issue before the court was the interpretation of a lease clause which, according to the defendant, allowed for the termination of the lease if the premises were used for an unauthorised purpose. The defendant sought to terminate the lease on the basis that the premises had been used for an unauthorised purpose, namely a hairdressing salon, when the lease only permitted the premises to be used for a beauty salon.

The court examined the terms of the lease and the nature of the activities conducted on the premises. It held that the use of the premises for a hairdressing salon did not constitute an unauthorised purpose within the meaning of the lease. The court reasoned that hairdressing and beauty services were closely related and the difference in the activities conducted did not materially alter the character of the premises' use. The court further held that the defendant's attempt to terminate the lease was invalid as it did not strictly adhere to the conditions outlined in the lease agreement.

The appeal was dismissed, and the application for leave to adduce further evidence was also dismissed. The court made no order for costs, finding that the costs incurred by the parties were a result of their own actions and not due to any fault by the other party. The decision reinforces the importance of strict adherence to the terms of a lease agreement when seeking to terminate the lease on the basis of unauthorised use of the premises.

Orders

Orders of the court

That the appeal be dismissed.

That the application for leave to adduce further evidence be dismissed.

That there be no order for costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Moon and Moon [2011] FamCAFC 116

Most Recent Citation

Little & Thornton (No 2) [2021] FedCFamC2F 434

Cases citing this decision · 1 of 1 shown

Little & Thornton (No 2)
[2021] FedCFamC2F 434 Para 25

…In Moon & Moon [2011] FamCAFC 116, [113], Coleman J sitting as a single Justice on an appeal, noted it had been suggested on a number of occasions (in light of the changes to Pt VII and the High Court’s judgment in MRR v GR ), that reliance upon A & A (Relocation Approach) was “ unhelpful and possibly erroneous ”: ci…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

Tryon & Anor v Clutterbuck & Ors
[2011] HCATrans 133 Para 16

…As the transcript of the High Court’s refusal of special leave to appeal in Tryon & Anor v Clutterbuck & Ors [2011] HCATrans 133 confirms, asserted defects in the preparation of family reports are matters which can, and probably should, be agitated in cross-examination of the author of such reports. So doing may resul…
MRR v GR
[2010] HCA 4 Para 2

…this Court has suggested that, in the light of changes to the provisions of Part VII of the Act in 2006, and the High Court’s judgment in MRR v GR [2010] HCA 4, reliance upon A v A: Relocation Approach (2000) FLC 93-035 is unhelpful and possibly erroneous (see eg Hepburn & Noble (2010) FLC 93-438 ; McCall & Cl…
Starr & Duggan
[2009] FamCAFC 115 Para 2

…is unhelpful and possibly erroneous (see eg Hepburn & Noble (2010) FLC 93-438 ; McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; and Starr & Duggan [2009] FamCAFC 115).…
CDJ v VAJ
[1998] HCA 67 Para 8

…In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230 – 231: Discretionary and evaluative decisions 186.A number of general propositions may be stated: 1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced wit…
DeVries v Australian National Railways Commission
[1993] HCA 78 Para 13

…n (see eg Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472).…
Abalos v Australian Postal Commission
[1990] HCA 47 Para 13

…opic. This issue fell squarely within the “trial Judge’s advantage”, as it has come to be known (see eg Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472).…
Gronow v Gronow
[1979] HCA 63 Para 9

…In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20: The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the pr…
Australian Coal and Shale Employees' Federation v The Commonwealth
[1953] HCA 25 Para 6

…e presumption that a trial Judge’s decision is correct is outlined by Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627): I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to…
Lovell v Lovell
[1950] HCA 52 Para 6

…ian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627): I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdict…
House v R
[1936] HCA 40 Para 7

…In House v The King (1936) 55 CLR 499 the High Court said at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the prima…
McCall & Clark
[2009] FAMCAFC 92 Para 6

…to the child J’s “need” to be with his mother. She recorded in that regard: 46.As explained by the Full Court in the matter of McCall & Clark [2009] FamCAFC 92 the benefit to a child of a meaningful relationship with a parent needs to be seen in a prospective context. It is likely that [the child J] benefited from a…
[2010] FMCAFAM 827
[2010] FMCAFAM 827

…[2010] FMCAfam 827…
House v The King
63 WN 176 Para 7

…In House v The King (1936) 55 CLR 499 the High Court said at 504-505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary jud…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention (from Para 6)