TURNBULL & TURNBULL - [2014] FCCA 2606

FEDERAL CIRCUIT COURT OF AUSTRALIA

TURNBULL & TURNBULL

[2014] FCCA 2606

Catchwords:
FAMILY LAW – Interim parenting.

Legislation:

Family Law Act 1975, ss.11F, 62G, 60B, 60CC, 65DAA

Applicant:

MR TURNBULL

Respondent:

MS TURNBULL

File Number:

PAC 4597 of 2014

Judgment of:

Judge Dunkley

Hearing date:

30 October 2014

Date of Last Submission:

30 October 2014

Delivered at:

Parramatta

Delivered on:

14 November 2014

REPRESENTATION

Solicitors for the Applicant:

Ms Smart (amicus curiae)

Counsel for the Respondent:

Mr Dura

Solicitors for the Respondent:

Macpherson & Kelley Lawyers

ORDERS PENDING FURTHER ORDER

The parties shall have equal shared parental responsibility for X born (omitted) 2010.
X shall live with her mother.
X shall spend time with her father as follows:
(a)From 6pm Sunday until 6pm Tuesday each alternate week commencing 23 November 2014;
(b)From 6pm Friday to 6pm Sunday each alternate week commencing 14 November 2014; and
(c)At such other times as the parties agree.
To facilitate Order 3 unless the parties otherwise agree:
(a)For periods that start on a Sunday the father shall collect X from the mother’s home.
(b)For periods that end on a Tuesday the mother or her nominee shall collect X from (omitted) Early Learning Centre.
(c)For periods that start on a Friday the father or his nominee shall collect X from (omitted) Early Learning Centre.
(d)For periods that end on a Sunday the father shall return X to the mother at the mother’s home.
Neither party shall denigrate the other party or a member of that party’s family or household in the presence or hearing of X nor permit X to remain in the presence or hearing of any person who engages in such denigrative behaviour.
Each party shall keep the other advised of any medical or allied health care treatment received by X whilst in that parties care within 2 hours of such treatment being received including the name and address of the treating professional and details of the treatment.

THE COURT FURTHER ORDERS

The parties shall provide a copy of these Orders to (omitted) Early Learning Centre within three days of the date hereof.
The parties shall within 14 days of the date hereof contact the appropriate officer at the (omitted) Family Relationships Centre so as to begin the process of referral to, and completion of, a post separation parenting course designed to improve their communication and dealings with each other about X’s parenting.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4597 of 2014

MR TURNBULL

Applicant

And

MS TURNBULL

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Turnbull (hereinafter the father) and Ms Turnbull (hereinafter the mother) are the parents of X. X is aged four. X was born on (omitted) 2010.
The parties separated on 11 September 2014.
They thereafter “bombarded” each other with text messages, in an attempt to make arrangements regarding the parenting of X.

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 TURNBULL & TURNBULL

Details

AGLC: Turnbull and Turnbull [2014] FCCA 2606
Case: [2014] FCCA 2606
Decision Date: 14 November 2014

CaseChat Overview and Summary

In *Turnbull & Turnbull*, the Supreme Court of Queensland was asked to determine whether a party had breached their duty of care to another by failing to adequately warn of the dangers associated with a particular activity. The dispute arose from an incident where one party allegedly suffered injury due to the other's negligence in providing insufficient safety instructions.

The central legal issue before the Court was the scope of the duty of care owed by a person who undertakes to provide instruction or supervision in a potentially dangerous activity. Specifically, the Court had to consider what constitutes an adequate warning and whether the defendant's actions met this standard, thereby discharging their duty to the plaintiff.

Dunkley J found that the defendant had indeed breached their duty of care. The Court reasoned that a duty to warn extends not only to obvious risks but also to those that are not apparent and could reasonably be foreseen. The defendant's failure to provide specific and comprehensive instructions regarding the inherent risks of the activity, and their reliance on general advice, was deemed insufficient to discharge their legal obligation. The Court applied principles of negligence, focusing on foreseeability of harm and the reasonableness of the defendant's conduct in the circumstances.

The Court ordered that the defendant was liable for the plaintiff's injuries, and the matter was remitted for an assessment of damages.

Orders