ALCOCK & SWEENEY - [2015] FCCA 3190

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALCOCK & SWEENEY

[2015] FCCA 3190

Catchwords:
FAMILY LAW – Children – contravention – contravention of parenting orders – two applications – where father claims that mother contravened interim parenting order on 6 occasions – whether prima facie case established – where mother claims father contravened the same order on one 4 occasions – whether prima facie case established – where father claims a reasonable excuse in respect of one allegation.

PRACTICE AND PROCEDURE – Procedural fairness – where one party not legally represented.

PRACTICE AND PROCEDURE – Annexures to affidavits – annexures must be paginated and marked in alphabetical order.

PRACTICE AND PROCEDURE – Use of the term “The Honourable” – Judges of the Federal Circuit Court are not to be referred to as “the Honourable”.

Legislation:

Family Law Act 1975, ss.70NAC, 70NAE,70NAF, 70NEA, 70NEB, 70NEC

Federal Circuit Court of Australia Act 1999 (Cth), Sch.1, Part 1
Federal Circuit Court Rules 2001, rr.15.28, 25B.04

Cases cited:
Caballes & Tallant [2014] FamCAFC 112; (2014) FLC 93-596; (2015) 52 Fam LR 125
Hayes & Stapleton [2015] FCCA 1948
In the Marriage of O’Brien (1992) 16 Fam LR 723; FLC 92-396
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146

Applicant:

MR ALCOCK

Respondent:

MS SWEENEY

File Number:

SYC 6437 of 2013

Judgment of:

Judge Scarlett

Hearing date:

25 November 2015

Date of Last Submission:

25 November 2015

Delivered at:

Sydney

Delivered on:

4 December 2015

REPRESENTATION

Counsel for the Applicant:

Ms McIntosh (direct brief)

Respondent:

In person

ORDERS

The Applicant Father has established a prima facie case that the Respondent mother has contravened Order 3 made by consent on 26 June 2014 on the following dates as set out in Counts 1, 3, 4, 5 and 6 of the Application-Contravention filed on 23 September 2015:
(a)25 December 2014;
(b)21 February 2015;
(c)16 May 2015;
(d)2 July 2015; and
(e)23 July 2015.
Count 2 of the Application-Contravention filed by the Father on 23 September 2015 is dismissed.
The Father did on 7 June 2015 contravene Order 3 made on 26 June 2014 in that he did not deliver or return the child X to the Mother at the conclusion of the time specified by the said Order.
The Mother has established a prima facie case that the Father has contravened Order 3 made by consent on 26 June 2014 on the following dates as set out in Counts 2 and 3 of the Application-Contravention filed on 9 November 2015 on the following dates:
(a)19 October 2014; and
(b)15 March 2015.
Count 4 of the Application –Contravention filed by the Mother on 9 November 2015 is struck out.
The parties are each granted leave to file and serve a further affidavit setting out the facts upon which they seek to rely in support of any defence that they wish to establish or any contention that they wish to make that they had a reasonable excuse for all or any of the above…

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.

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Details

AGLC: ALCOCK & SWEENEY [2015] FCCA 3190
Case: [2015] FCCA 3190
Decision Date: 4 December 2015

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Scarlett considered two applications concerning alleged contraventions of a parenting order. The father alleged that the mother had contravened the interim parenting order on six occasions, while the mother alleged that the father had contravened the same order on four occasions. The father also raised a defence of reasonable excuse in relation to one of the allegations against him.

The court was required to determine whether a prima facie case had been established for each alleged contravention. Additionally, the court considered issues of procedural fairness, particularly where one party was not legally represented, and the proper practice for annexures to affidavits, including pagination and marking. The court also addressed the correct form of address for judges of the Federal Circuit Court.

Judge Scarlett found that the father had established a prima facie case for five of the six alleged contraventions by the mother, dismissing one count. The court also found that the father had contravened the order on one occasion, as alleged by the mother. Furthermore, the mother established a prima facie case for two of the alleged contraventions by the father, while a fourth count against the father was struck out. The court granted both parties leave to file further affidavits to present any defence or reasonable excuse for the established contraventions.

Orders

Orders of the court

The Applicant Father has established a prima facie case that the Respondent mother has contravened Order 3 made by consent on 26 June 2014 on the following dates as set out in Counts 1, 3, 4, 5 and 6 of the Application-Contravention filed on 23 September 2015:

(a) 25 December 2014;

(b) 21 February 2015;

(d) 2 July 2015; and

(e) 23 July 2015.

Count 2 of the Application-Contravention filed by the Father on 23 September 2015 is dismissed.

The Father did on 7 June 2015 contravene Order 3 made on 26 June 2014 in that he did not deliver or return the child X to the Mother at the conclusion of the time specified by the said Order.

The Mother has established a prima facie case that the Father has contravened Order 3 made by consent on 26 June 2014 on the following dates as set out in Counts 2 and 3 of the Application-Contravention filed on 9 November 2015 on the following dates:

(a) 19 October 2014; and

(b) 15 March 2015.

Count 4 of the Application –Contravention filed by the Mother on 9 November 2015 is struck out.

The parties are each granted leave to file and serve a further affidavit setting out the facts upon which they seek to rely in support of any defence that they wish to establish or any contention that they wish to make that they had a reasonable excuse for all or any of the above contraventions within fourteen (14) days from the date of these Orders.

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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