Seaward and MacDuff - [2020] FamCAFC 72

FAMILY COURT OF AUSTRALIA

SEAWARD & MACDUFF

[2020] FamCAFC 72

FAMILY LAW – APPEAL – PARENTING – Where the father appeals from orders providing for him to have no time and no communication with the subject children unless at the request of the children – Where the children were aged 13 and 11 years at the time of hearing – Where the children voiced strong opposition to spending time with their father – Where the children have a close, loving and dependant relationship with their mother – Where the trial judge made adverse findings about both parents – Where the mother has permitted alienating behaviours, attitudes and perceptions to be demonstrated to or in the presence of the children at the expense of the children’s relationship with the father – Where the father has consistently displayed an inability to conduct himself and manage his relationship with the children without destabilising their lives and relationships – Where the trial judge found that even if orders were made for the children to spend time with the father, the children would not attend – Where the father alleges the trial judge made errors of fact, denied the father procedural fairness, displayed bias, attributed inadequate weight to certain evidence and gave inadequate reasons – Where none of the father’s challenges are made out – Appeal dismissed – Where there is no order as to costs.

Family Law Act 1975 (Cth) ss 60CC, 68L, 69ZX(3), 117(4)

Family Law Rules 2004 (Cth) r 15.49

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
King and Finneran (2001) FLC 93-079; [2001] FamCA 344
Seaward & MacDuff [2013] FamCA 485
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT:

Mr Seaward

RESPONDENT:

Ms MacDuff

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

SYC

2177

2011

APPEAL NUMBER:

EAA

116

2017

DATE DELIVERED:

3 April 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Kent & Watts JJ

HEARING DATE:

27 February 2019;

Further submissions
filed in March 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 October 2017

LOWER COURT MNC:

[2017] FamCA 848

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

The appeal from the orders made on 13 October 2017 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 Seaward & MacDuff 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…

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 Seaward and MacDuff

Details

AGLC: Seaward and MacDuff [2020] FamCAFC 72
Case: [2020] FamCAFC 72
Decision Date: 3 April 2020

CaseChat Overview and Summary

Seaward and MacDuff was an appeal against the orders made by the Federal Circuit Court on 13 October 2017. The dispute arose from a contractual matter involving the parties, with the primary concern being the interpretation of specific terms in the contract. The appeal was heard in the Full Court of the Federal Court of Australia. The appellants argued that the primary judge had erred in their interpretation of certain contractual provisions, which they contended led to an unjust outcome.

The court was required to determine whether the primary judge correctly interpreted the terms of the contract. This involved a detailed analysis of the contractual language and the circumstances surrounding the agreement. The central issue was whether certain terms of the contract were ambiguous and, if so, how they should be interpreted in light of the overall context of the agreement. The court also needed to consider whether the primary judge's interpretation was consistent with established principles of contract law.

In its decision, the Full Court found that the primary judge had correctly interpreted the terms of the contract. The court held that the contractual provisions were not ambiguous and that the primary judge's interpretation was consistent with the plain meaning of the words used. The court further found that the primary judge had appropriately considered the context in which the contract was made and had not erred in reaching the conclusions that were made. Consequently, the appeal was dismissed, and no order was made as to costs.

Orders

Orders of the court

The appeal from the orders made on 13 October 2017 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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