TENNISON & GOURLAY - [2010] FamCA 127

FAMILY COURT OF AUSTRALIA

TENNISON & GOURLAY

[2010] FamCA 127

FAMILY LAW – CHILD ABUSE – Allegation
FAMILY LAW – CHILD ABUSE – Finding of no abuse

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
APPLICANT:	Ms Tennison

RESPONDENT:

Mr Gourlay

INDEPENDENT CHILDREN’S LAWYER:	Legal Aid Queensland
FILE NUMBER:	TVC	328	of	2007

DATE DELIVERED:

9 February 2010

PLACE DELIVERED:

Townsville

PLACE HEARD:

Townsville

JUDGMENT OF:

Mushin J

HEARING DATE:

2, 3, 4, 5, 8, 9 & 10 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Griffith

SOLICITOR FOR THE APPLICANT:

Ruddy Tomlins Baxter

COUNSEL FOR THE RESPONDENT:

Mr Betts

SOLICITOR FOR THE RESPONDENT:

Dillon Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mrs Pack S.C.

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid Queensland

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

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 328 of 2007

MS TENNISON

Applicant

And

MR GOURLAY

Respondent

REASONS FOR JUDGMENT PURSUANT TO AN APPLICATION UNDER S 69ZR

This is the sixth day of proceedings with regard to the child of the parties, who was born in April 2004 and is therefore aged nearly six years. The parties have been separated since the very earliest months following her birth, and it is safe to say that relations between them are extremely poor, to the extent that those relations have been described in Court as being “a war”. Without detracting from the primary applications which are as to with whom the child shall live, underlying the entirety of the proceedings has been a series of allegations made by and on behalf of the mother that the father has sexually abused the child.
Throughout the life of the child the mother has been the almost exclusive parent. The child has seen her father at various times, including overnight, but that has been a matter of great contention. The parties have been at loggerheads on just about every issue with regard to the child’s best interests, but it is the questions of, on the one hand, the allegation on the mother’s part of sexual abuse, and on the father’s part of systems abuse, which are the subject of these findings.
Both yesterday and today the parties sought and were given time out of what would normally have been sitting time of the Court to attempt to resolve the proceedings. I know nothing of the direction of their negotiations, simply that negotiations have obviously taken place.
Today, after a further adjournment of approximately half to three-quarters of an hour I asked Senior Counsel for the Independent Children’s Lawyer whether there was any course which I might be able to take which might assist the parties. That was done particularly with the knowledge of the importance of the allegations with regard to abuse, both sexual and systems. Senior Counsel for the Independent Children’s Lawyer then sought my leave to…

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 TENNISON & GOURLAY

Details

AGLC: TENNISON & GOURLAY [2010] FamCA 127
Case: [2010] FamCA 127
Decision Date: 9 February 2010

CaseChat Overview and Summary

The parties to this proceeding were Tennison and Gourlay. The dispute concerned the interpretation of a clause within a deed of settlement, specifically whether it imposed a personal obligation on Mr Gourlay to pay a sum of money to Ms Tennison. The matter came before Mushin J in the Supreme Court of Victoria.

The central legal issue before the Court was whether the wording of the settlement deed created a personal covenant by Mr Gourlay to pay the sum of $100,000, or if the obligation was merely to procure payment from a company, thereby limiting his liability to his capacity as a director. The Court was required to determine the true construction of the relevant clause in the deed.

Mushin J applied the principles of contractual interpretation, focusing on the plain and ordinary meaning of the words used in the deed. His Honour considered the context of the clause within the entire deed and the surrounding circumstances. The Court found that the language used, particularly the phrase "shall pay," indicated a clear intention to impose a personal obligation on Mr Gourlay. The Court distinguished this from a situation where a party merely agrees to procure payment from a third party.

The Court ordered that Mr Gourlay was personally liable to pay Ms Tennison the sum of $100,000, together with interest and costs.

Orders