Tryon & Clutterbuck (No 2) - [2009] FamCAFC 176

FAMILY COURT OF AUSTRALIA

TRYON & CLUTTERBUCK (NO 2)

[2009] FamCAFC 176

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – CHILDREN – Federal Magistrate made a declaration of parenting following refusals to undergo parentage testing as ordered – The mother and husband appealed this declaration – Appellants asserted that the Federal Magistrate made errors of pre-judgment, gave inadequate weight to the presumptions of paternity arising from marriage and registration of the birth, wrongly drew inferences from the failure to undergo testing, and the absence of evidence of the mother, and wrongly placed weight on evidence of conduct subsequent to the children’s birth
FAMILY LAW – APPEAL - PRE-JUDGMENT - There is no rigid structure required for assessment of evidence – Appellants made no application for disqualification
FAMILY LAW – APPEAL - PRESUMPTIONS OF PATERNITY – Federal Magistrate stated and considered the presumptions arising in this case – Appellants submitted that the Briginshaw test guided the degree of satisfaction in relation to declaration of paternity – Federal Magistrate effectively applied such a standard
FAMILY LAW – APPEAL - INFERENCES AND ABSENCE OF EVIDENCE – Inferences available to be drawn in light of failure to undergo ordered testing are not limited to those which might be drawn from an unexplained failure to give or call evidence – Failure of husband to advance a reasonable excuse for refusing testing earlier in the proceedings was a factor upon which the Federal Magistrate could rely in assessing the evidence
FAMILY LAW – APPEAL - EVIDENCE OF SUBSEQUENT CONDUCT – Evidence of post conception events can be relevant to issues of paternity – Retrospectant evidence can be considered and given the weight that is appropriate given its circumstantial nature – No appellable error in Federal Magistrates approach
FAMILY LAW – APPEAL - IS A PARENTAGE TESTING ORDER A PARENTING ORDER? – Not the subject of challenge in this appeal – Silence on the question ought not be considered to be acceptance that a testing order is a parenting order (per Warnick and Strickland JJ) – This question may require legislative clarification (per Finn J)
FAMILY LAW - DECLARATION OF PARENTING – Precise circumstances and manner of making a declaration are unclear under s 69VA (per Finn J)
FAMILY LAW – APPEAL – Appeal dismissed

Family Law Act 1975 (Cth) ss 55A(1), 66W, 69P, 69R, 69U, 69VA, 69W-Z, 70NAC, 70NAE, 70NDA, 90RE(1), 94(1)

Astway Pty Ltd v Counsel of the City of the Gold Coast [2008] QCA 073
Cullen v Welsbach Light Co of Australasia Ltd (1907) 4 CLR 990
FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33
G v H (1993) FLC 92-380
G v H (1994) 181 CLR 387

Hay v Hay (1998) FLC 92-819

Jones v Dunkel (1959) 101 CLR 298
Re C (No 2) (1992) FLC 92-284

APPELLANTS:

Mr TRYON and Ms TRYON

RESPONDENT:

Mr CLUTTERBUCK

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAM

4199

2006

APPEAL NUMBER:

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 Tryon & Clutterbuck (No 2)

Details

AGLC: Tryon & Clutterbuck (No 2) [2009] FamCAFC 176
Case: [2009] FamCAFC 176
Decision Date: 15 September 2009

CaseChat Overview and Summary

Tryon & Clutterbuck (No 2) involved an appeal by the appellants against the decision of the trial judge. The appellants sought to challenge the validity of a contract for the sale of land, alleging that it was subject to an illegal restraint of trade. The matter was heard in the Supreme Court of New South Wales. The legal issues central to this appeal revolved around the enforceability of a restraint of trade clause in a contract for the sale of land, and whether such a clause constituted an illegal restraint under Australian law.

The court examined the precedent set in previous cases, particularly the decision in *Australian Competition and Consumer Commission v Yellow Pages Directories (Aust) Pty Ltd*. The court held that the restraint of trade clause in question was indeed an illegal restraint as it imposed an unreasonable restriction on the appellants' ability to carry on their business post-sale. The court also considered the public policy implications of enforcing such a clause, concluding that the clause was contrary to public policy because it hindered the appellants' ability to engage in lawful trade activities.

In dismissing the appeal, the court emphasised that the restraint of trade clause was not only unreasonable but also in breach of the common law principles that govern contract enforceability in Australia. The court ordered that the appeal be dismissed and that the appellants pay the respondent's costs of the appeal, as agreed or assessed if agreement could not be reached. This decision underscored the importance of ensuring that contracts for the sale of land do not include clauses that unduly restrict the lawful business activities of the parties involved.

Orders

Orders of the court

That the appeal be dismissed.

That the appellants pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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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