FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cagney & Nankervis [2024] FedCFamC2F 192
File number(s): PAC 2699 of 2014 Judgment of: JUDGE PARKER Date of judgment: 15 February 2024 Catchwords: FAMILY LAW – CONTRAVENTION – contraventions of order providing for children to communicate with Father – whether no case to answer – eight contraventions proven without reasonable excuse Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 67ZN, 70NAC, 70NAF, 70NFA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 189
Cases cited: Attreed & Attreed [1980] FamCA 81; (1980) FLC ¶90-907
Australian Securities and Investments Commission v Healey [2011] FCA 717
Caballes & Tallant [2014] FamCAFC 112; (2014) FLC ¶93-596
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
D & C [2005] FamCA 1046; (2005) FLC ¶93-236
Dobbs & Dobbs (2021) FLC 94-021
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072; (2007) FLC ¶93-341
Fierro & Fierro (No 7) [2023] FedCFamC1A 24; (2023) FLC ¶94-132
Jackson & Fordham (1995) FLC ¶92-561
Jets & Maker [2010] FamCAFC 55
May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
Meese & Meese (No 3) [2018] FamCA 807
Medlow & Medlow [2017] FamCAFC 159; (2017) FLC ¶93-796
Nieuwstraten & Nieuwstraten [1987] FamCA 11; (1987) FLC ¶91-826
O'Brien & O'Brien [1992] FamCA 52; (1993) FLC ¶92-396
Prentice v Cummins (No 5) [2002] FCA 1503
Protean (Holdings) Ltd v American Home Assurance Co [1985] VicRp 18; [1985] VR 187
Rasomen Pty Ltd v Shell Co of Australia (1997) 75 FCR 216
Residues Treatment & Trading Co Limited v Southern Resources Limited (1989) 52 SASR 54
Sahari & Sahari [1976] FamCA 59; (1976) FLC ¶90-086
Securities and Investments Commission v Healey [2011] FCA 717
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Stevenson & Hughes [1993] FamCA 14; (1993) FLC ¶92-363
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 2 and 5 February 2024 Place: Adelaide Counsel for the Applicant: Self-represented Counsel for the Respondent: Mr Jurd Solicitor for the Respondent: Peter Jurd Lawyers ORDERS
PAC 2699 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAGNEY
Applicant
AND: MS NANKERVIS
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
15 FEBRUARY 2024
UPON THE COURT FINDING THAT:
A.The Mother has contravened paragraph 5 of the orders of 21 December 2021 without reasonable excuse on 8 occasions
THE COURT ORDERS THAT:
1.The matter is listed for hearing on 3 April 2024 at 2:15pm for submissions as to the consequential orders to be made.
2.In the event the parties reach agreement as to the consequential orders to be made, liberty is granted to the parties to forward a proposed consent minute to Chambers and request to vacate the hearing.
Note: The form of…
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- Cagney & Nankervis [2024] FedCFamC2F 192
- Case
- [2024] FedCFamC2F 192
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CaseChat Overview and Summary
The court considered the evidence presented to determine whether Ms Nankervis had a reasonable excuse for the eight instances of non-compliance with the court's orders. The primary focus was on the interpretation of 'reasonable excuse' under the Family Law Act 1975, and whether Ms Nankervis could justify her actions that led to the contraventions. The court found that Ms Nankervis did not provide a reasonable excuse for any of the eight contraventions, thus confirming that she had indeed contravened the orders.
In reaching its decision, the court examined the evidence and submissions from both parties, focusing on the specific circumstances of each contravention. The court held that the evidence provided by Mr Cagney was sufficient to establish the contraventions without reasonable excuse. Consequently, the court ruled that Ms Nankervis had contravened the orders on eight occasions. The matter was listed for further hearing to consider what consequential orders should be made as a result of these findings.
The court ordered the matter to be listed for a hearing on 3 April 2024 to determine the consequential orders. In the interim, if the parties could reach an agreement on the consequential orders, they were permitted to submit a proposed consent minute to the court. This order was made in accordance with the court's authority under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
PAC 2699 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CAGNEY
Applicant
AND:
MS NANKERVIS
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
15 FEBRUARY 2024
UPON THE COURT FINDING THAT:
A. The Mother has contravened paragraph 5 of the orders of 21 December 2021 without reasonable excuse on 8 occasions
THE COURT ORDERS THAT:
1. The matter is listed for hearing on 3 April 2024 at 2:15pm for submissions as to the consequential orders to be made.
2. In the event the parties reach agreement as to the consequential orders to be made, liberty is granted to the parties to forward a proposed consent minute to Chambers and request to vacate the hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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