DALLEY & DALLEY (No.3) - [2016] FCCA 959

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLEY & DALLEY (No.3)

[2016] FCCA 959

Catchwords:
FAMILY LAW – Children – contravention – contravention of parenting orders – reasonable excuse – whether respondent has established a reasonable excuse for any contravention.

PRACTICE AND PROCEDURE – Appointment of Independent Children’s Lawyer for the substantive parenting Application – where substantive application to be transferred to the docket of another Judge.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 68L, 70NAE, 70NAF, 70NEA

Cases cited:
Dalley & Dalley [2015] FCCA 3459
Mackenzie & Gale [2015] FCCA 2755
In the Marriage of O’Brien (1992) 16 Fam LR 723; FLC 92-396
Ramsay & Wade (No.2) [2014] FCCA 1989

Applicant:

MR DALLEY

Respondent:

MS DALLEY

File Number:

SYC 4420 of 2011

Judgment of:

Judge Scarlett

Hearing date:

18 April 2016

Date of Last Submission:

18 April 2016

Delivered at:

Sydney

Delivered on:

18 April 2016

REPRESENTATION

Solicitor for the Applicant:

Mr McCann

Solicitors for the Applicant:

Anderson Lawyers

Counsel for the Respondent:

Mr Ryan (direct brief)

ORDERS

The Respondent Mother has established a reasonable excuse for contravening on 25 December 2015 Orders 1 and 2 made by consent on 21 December 2015.
The Respondent Mother did on 10 January 2016 without reasonable excuse contravene Order 4 made on 21 December 2015 in that she did not make the children X born (omitted) 2003 and Y born (omitted) 2004 available to spend time with the Father in accordance with the Order.
The Respondent Mother did on 17 January 2016 without reasonable excuse contravene Order 4 made on 21 December 2015 in that she did not make the said children X and Y available to spend time with the Father in accordance with the Order.
The interests of the children X and Y are to be independently represented by a lawyer in accordance with section 68L of the Family Law Act 1975 and for this purpose Legal Aid New South Wales is requested to arrange such representation.
Within seven (7) days the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney NSW 2000 for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and all other relevant documents.
The Independent Children’s Lawyer is given leave to issue up to ten (10) subpoenas without charge.
The Application is adjourned to Tuesday 17 May 2016 for further mention at 10:00 am.

IT IS NOTED that publication of this judgment under the pseudonym Dalley & Dalley (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4420 of 2011

MR DALLEY

Applicant

And

MS DALLEY

Respondent

REASONS FOR JUDGMENT

Application-Contravention

There are two contravention Applications before the Court. They each relate to allegations of contravention of Orders made by this Court on 21^st December 2015. They are parenting orders in respect of the parties’ two younger children, X, who was born on (omitted) 2003 and Y, who was born…

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 DALLEY & DALLEY (No.3)

Details

AGLC: Dalley and Dalley (No.3) [2016] FCCA 959
Case: [2016] FCCA 959
Decision Date: 18 April 2016

CaseChat Overview and Summary

This matter concerned allegations of contravention of parenting orders brought by the Father against the Mother. The dispute centred on whether the Mother had a reasonable excuse for alleged contraventions of orders made on 21 December 2015 concerning the children X and Y. The proceedings were before Judge Scarlett in the Family Court of Australia.

The court was required to determine whether the Respondent Mother had established a reasonable excuse for contravening specific parenting orders on 25 December 2015, 10 January 2016, and 17 January 2016. The court also needed to consider the appointment of an Independent Children’s Lawyer for the substantive parenting application.

Judge Scarlett found that the Mother had established a reasonable excuse for contravening the orders on 25 December 2015. However, the court determined that the Mother had contravened Order 4 on 10 January 2016 and 17 January 2016 without reasonable excuse, by failing to make the children available for time with the Father. The court ordered that the interests of the children be independently represented by a lawyer, pursuant to section 68L of the Family Law Act 1975, and requested Legal Aid New South Wales to arrange such representation. The parties were directed to forward all relevant documents to Legal Aid for the Independent Children’s Lawyer, who was granted leave to issue up to ten subpoenas without charge. The application was adjourned for further mention.

Orders

Orders of the court

The Respondent Mother has established a reasonable excuse for contravening on 25 December 2015 Orders 1 and 2 made by consent on 21 December 2015.

The Respondent Mother did on 10 January 2016 without reasonable excuse contravene Order 4 made on 21 December 2015 in that she did not make the children X born (omitted) 2003 and Y born (omitted) 2004 available to spend time with the Father in accordance with the Order.

The Respondent Mother did on 17 January 2016 without reasonable excuse contravene Order 4 made on 21 December 2015 in that she did not make the said children X and Y available to spend time with the Father in accordance with the Order.

The interests of the children X and Y are to be independently represented by a lawyer in accordance with section 68L of the Family Law Act 1975 and for this purpose Legal Aid New South Wales is requested to arrange such representation.

Within seven (7) days the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney NSW 2000 for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and all other relevant documents.

The Independent Children’s Lawyer is given leave to issue up to ten (10) subpoenas without charge.

The Application is adjourned to Tuesday 17 May 2016 for further mention at 10:00 am.

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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