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 of 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)

1. 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).

2. …

3. …

4. 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).

5. …

6. 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).

7. 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).

8. …

9. …

…

1. …

2. …

3. …

4. …

5. …

6. …

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

1. 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.

2. 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 is alleged that the respondent stated at trial in October 2017 that he disposed of some of the personal property.  Paragraph 4 of the Order is as follows:

   That the Husband shall be responsible for retaining possession of or storing at his expense all of the items of personal property that he removes from the [C Town] property pursuant to Order 3 hereof pending the determination of the final disposition of that personal property by the Trial Judge.

3. The respondent denies contravening the Order and specifically denies disposing of personal property contrary to that Order. The only evidence before me in support of that alleged contravention is contained in paragraph 20 of the applicant’s affidavit filed 10 January 2018. Other than setting out paragraph 4 of the Order of Justice Forrest, there is one assertion, which states, “The respondent has breached that Order where he has stated under oath during cross examination at trial in October 2017 that he disposed of some of the personal property. He took it to the dump”. No evidence to support that assertion is submitted and accordingly, count 1 is dismissed.

4. Count 4 is an allegation that the respondent has contravened paragraph 15 of the Order of Judge Howard made 12 December 2014, which states:

   That the parents shall each follow the recommendations of the children's medical practitioners (including, but not limited to, paediatricians, immunologists, general practitioners and occupational therapists).

5. It is alleged that the respondent failed to follow medical advice by giving the child Y a bath and failing to apply ointment. The evidence said to support this alleged contravention is set out in paragraphs 25 to 34 of the affidavit of the applicant filed 10 January 2018 and an affidavit of Dr NN filed 25 August 2016, which annexed to it some practice records.

6. Given the nature of an Application – Contravention, and the serious consequences that may follow from a finding that someone has contravened an Order without reasonable excuse, the rules of evidence apply.  The content of the evidence relied upon by the applicant is her assertions, hearsay from the child, hearsay from Dr NN, hearsay from Dr PP, and hearsay from a pharmacy.  The respondent has denied that he has contravened the Order without reasonable excuse but I am not satisfied upon the evidence that I have been taken to that this count has been made out on a prima facie case and I therefore dismiss count 4.

7. Count 6 is an allegation that the respondent contravened without reasonable excuse paragraph 16 of the Order of Judge Howard dated 12 December 2014, which states:

   That neither party is to discuss adult matters, including the parenting arrangements and the Court dispute, with or in the presence of the children.

8. It is alleged that, between 15 April 2016 and 17 April 2016, the respondent discussed adult matters with the children by telling them that he was arrested by police. The alleged contravention is denied.  The evidence relied upon in support of count 6 is contained in paragraphs 43 to 48 of the applicant’s affidavit filed 10 January 2018, and included in those paragraphs is a reliance on pages 300 to 303 of the applicant’s affidavit filed 16 October 2017. I am not satisfied on the evidence that the father has contravened the Order as alleged. The only evidence comes from hearsay of the children and of course the denial that the father has done that which is alleged. Court 6 is therefore dismissed.

9. Count 7 is an allegation that the respondent contravened without reasonable excuse paragraph 16 of the Order of Judge Howard dated 12 December 2014 in that he discussed adult matters with the children, namely, telling the children about the applicant’s email regarding the children’s proposed overseas travel.  The respondent denies that he has contravened the Order. The evidence relied upon by the applicant in support of the alleged contravention is set out in paragraphs 42, 44, 45 and 47 of her affidavit filed 10 January 2018 and reference is also made to the emails appearing on pages 300 to 303 of her affidavit filed 16 October 2017.

10. I am not satisfied on the evidence that the respondent has contravened the Order. Some of those paragraphs are not relevant to the alleged contravention and to the extent there is evidence relating to the contravention, it is hearsay and inadmissible in proceedings such as this. I therefore dismiss count 7.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 2 April 2019.

Associate: 

Date:  22 May 2019