DARLEY & DARLEY - [2019] FamCA 348

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY

[2019] FamCA 348

FAMILY LAW – ORDERS – Contravention – Where the applicant alleges that the respondent has contravened Orders on ten occasions without reasonable excuse – Where the evidence fails to establish a prima facie case in relation to four of the alleged contraventions.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Darley

RESPONDENT:

Mr Darley

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

2 April 2019 (Order made 5 April 2019)

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

2 April 2019

REPRESENTATION

FOR THE APPLICANT:

Self-represented

FOR THE RESPONDENT:

Self-represented

Order (made 5 April 2019)

The alleged contravention of paragraph 4 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 11 of the Application – Contravention filed 10 January 2018 is dismissed (count 1).
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The alleged contravention of paragraph 15 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 17 of the Application – Contravention filed 10 January 2018 is dismissed (count 4).
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The alleged contravention of paragraph 16 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 21 of the Application – Contravention filed 10 January 2018 is dismissed (count 6).
The alleged contravention of paragraph 16 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 23 of the Application – Contravention filed 10 January 2018 is dismissed (count 7).
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Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2317 of 2013

Ms Darley

Applicant

And

Mr Darley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter comes before me today in relation to ten counts of contravention particularised in two Applications – Contravention filed 10 January 2018 and 26 March 2019 respectively. Counts 1, 4, 6 and 7 are dismissed as no prima facie case of contravention is made out and these reasons are provided in relation to those four counts only.
In relation to count 1, as set out in the Application - Contravention filed by the applicant on 10 January 2018, it is alleged that during the period 16 August 2017 to 7 January 2018 the respondent contravened without reasonable excuse paragraph 4 of the Order of his Honour Justice Forrest made 26 May 2017 in that it…

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 DARLEY & DARLEY

Details

AGLC: DARLEY & DARLEY [2019] FamCA 348
Case: [2019] FamCA 348
Decision Date: 5 April 2019

CaseChat Overview and Summary

In *Darley & Darley*, the applicant alleged that the respondent had contravened court orders on ten occasions without reasonable excuse. The proceedings were heard by Carew J in the Family Court of Australia.

The primary legal issue before the court was whether the applicant had established a prima facie case for each of the ten alleged contraventions. The court was required to determine if the evidence presented by the applicant was sufficient to demonstrate that the respondent had, in fact, contravened the specified orders.

Carew J found that the evidence failed to establish a prima facie case in relation to four of the alleged contraventions. Consequently, the court dismissed these specific contraventions. The judgment indicates that the remaining alleged contraventions were also dismissed, although the specific reasons for those dismissals are not detailed in the provided text.

Orders

Orders of the court

Order (made 5 April 2019)

The alleged contravention of paragraph 4 of the Order made 26 May 2017 by the Honourable Justice Forrest particularised in paragraph 11 of the Application – Contravention filed 10 January 2018 is dismissed (count 1).

…

The alleged contravention of paragraph 15 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 17 of the Application – Contravention filed 10 January 2018 is dismissed (count 4).

…

The alleged contravention of paragraph 16 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 21 of the Application – Contravention filed 10 January 2018 is dismissed (count 6).

The alleged contravention of paragraph 16 of the Order made 12 December 2014 by his Honour Judge Howard particularised in paragraph 23 of the Application – Contravention filed 10 January 2018 is dismissed (count 7).

…

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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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