Skinner & Cluny (No. 2) - [2012] FamCA 465

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY (NO. 2)

[2012] FamCA 465

FAMILY LAW - CHILDREN - With whom a child lives - Where the child is not yet three years of age and has always been in the Respondent Mother's primary care - Where parties agree on fundamental aspects of parenting Orders in child’s best interests - Where remaining issues between the parties on parenting Orders to be made are at the periphery of any substantial or significant “best interests” considerations

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Skinner

RESPONDENT:

Ms Cluny

FILE NUMBER:

BRC

812

2010

DATE DELIVERED:

21 June 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

27 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carew

SOLICITOR FOR THE APPLICANT:

Cooper Family Law

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders by Consent

B Skinner, born … August 2009 (“the child”) shall live with the Mother.
The Mother (Ms Cluny) and the Father (Mr Skinner) shall have equal shared parental responsibility for the child.
Each party shall notify the other as soon as practicable of any accident, emergency, serious illness or significant injury involving the child.
Each party shall keep the other informed at all other times of all professionals consulted in relation to the welfare, care, health, development and education of the child at all times, including, but not limited to, the particulars of the name, address and contact details of that professional.
Each party hereby irrevocably authorises any person or institution including, but not limited to, any doctor, carer, hospital, childcare institution, school, or sporting or recreational organisation to release all and any information reasonably requested by the other in relation to the child.
Each party shall keep the other informed of their residential address, home telephone number, mobile telephone number and e-mail address and shall notify the other in writing of any change to same within forty-eight (48) hours of any such change.
Neither party shall denigrate the other party or their extended family members, nor permit any person to do so, in the presence or hearing of the child.
The child shall spend time with and communicate with the Father at all times as may be agreed, but failing agreement, as follows, from the date of these Orders until 22 July 2012:
(a)       every Monday from midday until 6.00 pm;
(b)       every Thursday from midday until 6.00 pm; and
(c)       every weekend from midday on Saturday until midday on Sunday.
The parties have liberty to attend upon, and participate in, any extra-educational activity undertaken by the child irrespective of any other Order.
The parties are restrained from causing any person to follow, survey, watch or engage in any other practice associated with private investigation upon the other party or any member of the other party’s family.
Both the Mother and the Father are restrained from bringing the child into direct or indirect contact…

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 Skinner & Cluny (No. 2)

Details

AGLC: SKINNER & CLUNY (NO. 2) [2012] FamCA 465
Case: [2012] FamCA 465
Decision Date: 21 June 2012

CaseChat Overview and Summary

In the matter of *Skinner & Cluny (No. 2)*, Kent J of the Supreme Court of Tasmania considered a dispute concerning the interpretation of a will. The applicants, Skinner and Cluny, sought to have the will of the late Mr. Arthur Reginald Skinner 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 that estate was intended to be held on trust for a specific purpose that had not been fulfilled. This required the Court to ascertain the testator's intention as expressed within the four corners of the will.

Kent J's reasoning focused on the principles of testamentary construction, particularly the importance of giving effect to the plain and ordinary meaning of the words used by the testator, unless such a meaning would lead to an absurd result or contradict other clear provisions of the will. His Honour examined the specific clauses of the will relating to the disposition of the residuary estate and the purported trust, concluding that the language used did not create a valid or enforceable trust over any part of the residue. The Court found that the beneficiaries were absolutely entitled to the residuary estate.

Orders