CARRINGTON & GUNBY - [2013] FamCA 296

FAMILY COURT OF AUSTRALIA

CARRINGTON & GUNBY

[2013] FamCA 296

FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of three counts – where one of these three counts was dismissed at an earlier hearing – where the primary order for the remaining two counts required the wife to facilitate the child spending time with the father – where the wife admits both remaining counts – consideration of whether the wife had a reasonable excuse for contravention – where the wife claims she has a reasonable excuse pursuant to s 70NAE(5) of the Family Law Act 1975 (Cth) – no reasonable excuse for contravention established.

Family Law Act 1975 (Cth) s 69ZT, 70NAC, 70NAE, 70NAF, 70NBA, 70NDA, 70NDB, 70NFA, 70NFB

Family Law Rules 2004 (Cth) r 21.08

APPLICANT:

Mr Carrington

RESPONDENT:

Ms Gunby

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

FILE NUMBER:

ADC

4119

2008

DATE DELIVERED:

3 May 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

6 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Swan

SOLICITOR FOR THE RESPONDENT:

Swan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

Orders

The contravention applications filed by the father on 27 August 2012 and 6 November 2012 are adjourned to Wednesday 22 May 2013 at 3.30 pm before the Honourable Justice Dawe for the Court to hear further submissions from each of the parties in relation to the orders.
The question of costs of the applications are adjourned to Wednesday 22 May 2013 at 3.30 pm before the Honourable Justice Dawe.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carrington & Gunby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4119 of 2008

Mr Carrington

Applicant

And

Ms Gunby

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment considers two applications for contravention orders filed by Mr Carrington (“the applicant”). They allege that Ms Gunby (“the respondent”) has contravened various Court orders relating to their child B, (“the child”). The child was born in June 2008 and was accordingly 4 years old at the date of the hearing.
The applicant was unrepresented at the hearing. The respondent was represented by Mr Swan on instructions from Swan Family Lawyers.
On 13 November 2012, I excused the Independent Children’s Lawyer from attendance at the hearing of the evidence for these applications for contravention orders.
At the conclusion of the hearing on 6 February 2013, and upon reserving judgment in these applications for contravention orders, I noted that the Independent Children’s Lawyers would be required to attend at the delivery of my reasons to allow me to hear his submissions before I make any orders.

The First Application for Contravention Orders

The first application…

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

Case: [2013] FamCA 296
Decision Date: 3 May 2013

CaseChat Overview and Summary

The matter before Dawe J concerned contravention applications filed by the father against the mother. The dispute centred on allegations that the mother had failed to comply with court orders regarding the child's time with the father.

The court was required to determine the relevance and application of section 69ZT of the Act, which governs the application of the Evidence Act 1995 in child-related proceedings. Specifically, the court needed to consider whether the strict rules of evidence, particularly concerning hearsay and documentary evidence, should apply, and if so, under what circumstances. The court also had to consider the procedural requirements for hearing contravention applications as outlined in Rule 21.08 of the Family Law Rules 2004.

Dawe J noted that section 69ZT allows the court to depart from the usual rules of evidence in child-related proceedings if exceptional circumstances are met, considering factors such as the importance of the evidence and its probative value. The father's affidavit, which alleged non-compliance with court orders and referred to a police report, was central to this consideration. However, the affidavit lacked specific particulars of the alleged contraventions, relying on general statements and denigration of the mother's capacity.

The contravention applications were adjourned for further submissions on the orders and the question of costs.

Orders

Orders of the court

The contravention applications filed by the father on 27 August 2012 and 6 November 2012 are adjourned to Wednesday 22 May 2013 at 3.30 pm before the Honourable Justice Dawe for the Court to hear further submissions from each of the parties in relation to the orders.

The question of costs of the applications are adjourned to Wednesday 22 May 2013 at 3.30 pm before the Honourable Justice Dawe.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It became apparent at the hearing of this matter that section 69ZT of the Act was relevant as a result of certain material in the husband’s affidavit dated 8 November 2012. Section 69ZT states: 69ZT Rules of evidence not to apply unless court decides (1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;Note:Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character). (2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1). (3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if: (a) the court is satisfied that the circumstances are exceptional; and (b) the court has taken into account (in addition to any other matters the court thinks relevant):(i) the importance of the evidence in the proceedings; and(ii) the nature of the subject matter of the proceedings; and(iii) the probative value of the evidence; and(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence. (4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying. (5) Subsection (1) does not revive the operation of: (a) a rule of common law; or (b) a law of a State or a Territory;that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection. Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outlines the procedure for the hearing of an application for contravention orders:21.08 Procedure for hearingAt the hearing of an application mentioned in item 1A, 2, 3, 4, or 5 in Table 21.1, the Court must:(a) inform the respondent of the allegation;(b)ask the respondent whether the respondent wishes to admit or deny the allegation;(c) hear any evidence supporting the allegation;(d) ask the respondent to state the response to the allegation;(e) hear any evidence for the respondent; and(f) determine the case. The applicant filed an affidavit in support of the first application for contravention orders. It is a brief document. Relevantly, it states “Court Orders of 17 August 2012 noting that time with the child to resume as of 24 August 2012, have not been followed (Police Report #13/…).” The affidavit goes on to state that “this is a continuation of the 2009 orders meaning the mother has denied contact resulting in the child not spending any time with me since 20 June 2012.” The rest of the document is devoted to denigrating the respondent’s capacity as a mother and does not provide any further particulars of either alleged contravention in this count.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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