CALLAHAN & CALLAHAN - [2014] FCCA 2930

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALLAHAN & CALLAHAN

[2014] FCCA 2930

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – where father claims that mother contravened parenting orders on 9 occasions – whether prima facie case established – where two allegations admitted and a further allegation admitted but with a reasonable excuse claimed.

EVIDENCE – Admissibility of evidence – hearsay – second-hand hearsay – representation made by a child – weight of evidence – whether sufficient to establish a prima facie case.

EVIDENCE – Admissibility of evidence – illegally obtained evidence – contravention of an Australian law – recording of telephone conversation without the consent of one party – where child recorded telephone conversation with his mother without her knowledge or consent – recording passed on to father – breach of Surveillance Devices Act 2007 (NSW), s.11 – evidence excluded.

PRACTICE AND PROCEDURE – Procedural fairness – where respondent not represented – where respondent required to establish reasonable excuse for contravention – where respondent entitled to lead evidence to deny contravention of orders.

PRACTICE AND PROCEDURE – Procedural fairness – where respondent admitted two contraventions – whether allegations constitute a contravention of a court order.

Legislation:

Evidence Act 1995 (Cth), s.138

Family Law Act 1975 (Cth), ss.64B, 69ZV, 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEB, 70NEC

Surveillance Devices Act 2007 (NSW), s.11
Federal Circuit Court Rules 2001 r.25B.04

Cases cited:
Caballes & Tallant [2014] FamCAFC 112
Ramsay & Wade [2014] FCCA 1431
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146

Applicant:

MR CALLAHAN

Respondent:

MS CALLAHAN

File Number:

SYC 1855 of 2012

Judgment of:

Judge Scarlett

Hearing date:

21 November 2014

Date of Last Submission:

21 November 2014

Delivered at:

Sydney

Delivered on:

12 December 2014

REPRESENTATION

Solicitor for the Applicant:

Ms Coady

Solicitors for the Respondent:

Jodhi Coady Law

Respondent:

In person

ORDERS

Count 1 of the Amended Application-Contravention filed on 18 November 2014 alleging a contravention by the Respondent on 25 December 2013 of Order 4 made on 17 December 2013 is dismissed.
Count 2 of the Amended Application alleging a contravention by the Respondent on 2 January 2014 of Order 4 made on 17 December 2013 is dismissed.
Count 3, alleging a contravention by the Respondent on 3 February 2014 of Order 4 made on 17 December 2013 is dismissed.
The Applicant has established a prima facie case in respect of Count 4, alleging a contravention by the Respondent between 26 December 2013 and 18 January 2014 of Order 14 made on 17 December 2013.
The Applicant has established a prima facie case in respect of Count 6, alleging a contravention by the Respondent on 20 January 2014 of Order 14 made on 17 December 2013.
Count 7, alleging a contravention by the Respondent on 21 January 2014 of Order 17 made on 17 December 2013, is dismissed.
Count 8, alleging a contravention by the Respondent on 3 February 2014 of Order 17 made on 17 December 2013, is dismissed.
The Respondent did…

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 CALLAHAN & CALLAHAN

Details

AGLC: Callahan and Callahan [2014] FCCA 2930
Case: [2014] FCCA 2930
Decision Date: 12 December 2014

CaseChat Overview and Summary

In the Family Court of Australia, Judge Scarlett considered allegations by the father (Applicant) that the mother (Respondent) had contravened parenting orders on nine occasions. The dispute centred on whether the mother had established a prima facie case for each alleged contravention, with some allegations admitted by the mother, either outright or with a claim of reasonable excuse.

The court was required to determine whether the Applicant had established a prima facie case for each of the nine alleged contraventions. This involved assessing the admissibility and weight of the evidence presented, including evidence that was second-hand hearsay in the form of representations made by a child, and evidence that was illegally obtained through the recording of a telephone conversation in breach of the *Surveillance Devices Act 2007* (NSW). The court also considered issues of procedural fairness, particularly in relation to the respondent's right to lead evidence to deny contraventions and establish reasonable excuses.

The court's reasoning involved a careful examination of each alleged contravention. It excluded evidence obtained in contravention of the *Surveillance Devices Act 2007* (NSW), finding it inadmissible. The court also considered the weight to be given to hearsay evidence, particularly representations made by a child. Ultimately, the court dismissed several counts, finding that a prima facie case had not been established. However, it found that a prima facie case was established in respect of three specific contraventions. The court also found that the respondent had contravened one order. The respondent was granted leave to file an affidavit setting out any defence or reasonable excuse for the established contraventions.

Orders

Orders of the court

Count 1 of the Amended Application-Contravention filed on 18 November 2014 alleging a contravention by the Respondent on 25 December 2013 of Order 4 made on 17 December 2013 is dismissed.

Count 2 of the Amended Application alleging a contravention by the Respondent on 2 January 2014 of Order 4 made on 17 December 2013 is dismissed.

Count 3, alleging a contravention by the Respondent on 3 February 2014 of Order 4 made on 17 December 2013 is dismissed.

The Applicant has established a prima facie case in respect of Count 4, alleging a contravention by the Respondent between 26 December 2013 and 18 January 2014 of Order 14 made on 17 December 2013.

The Applicant has established a prima facie case in respect of Count 6, alleging a contravention by the Respondent on 20 January 2014 of Order 14 made on 17 December 2013.

Count 7, alleging a contravention by the Respondent on 21 January 2014 of Order 17 made on 17 December 2013, is dismissed.

Count 8, alleging a contravention by the Respondent on 3 February 2014 of Order 17 made on 17 December 2013, is dismissed.

The Respondent did on 19 June 2014 contravene Order 1 made on 16 June 2014 by failing to take the child X to an appointment with Dr M at 12:30 pm on 19 June 2014.

The Applicant has established a prima facie case in respect of Count 10, alleging a contravention by the Respondent on an unspecified date after 20 January 2014 of Order 9 made on 17 December 2013.

10.

The Respondent Mother is granted leave to file and serve an affidavit setting out the facts upon which she seeks to rely in support of contention she may wish to make that she has either a defence to or a reasonable excuse for all or any of the above allegations within twenty-eight (28) 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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