Delahunty and Delahunty (No 2)

[2019] FamCA 879

FAMILY COURT OF AUSTRALIA

DELAHUNTY & DELAHUNTY (NO. 2) [2019] FamCA 879

FAMILY LAW – CONTRAVENTION – Where the Respondent made an oral application submitting there is no case to answer based on the evidence in respect of three of the alleged contraventions– Where that submission is not supported in fact and the application is dismissed.

APPLICANT: Mr Delahunty

RESPONDENT: Ms Delahunty

INDEPENDENT CHILDREN’S LAWYER: Nicola Davies

FILE NUMBER: SYC 4163 of 2016

DATE DELIVERED: 7 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 7 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITOR FOR THE APPLICANT: Marsden Law

COUNSEL FOR THE RESPONDENT: Mr Page QC

SOLICITOR FOR THE RESPONDENT: Life Law Solutions

INDEPENDENT CHILDREN’S LAWYER: Appearance excused

Orders

1. That the Independent Children’s Lawyer be excused from appearing at the hearing of the Contravention Application today.

2. That the respondent’s oral application for summary dismissal of Counts 1, 2 and 3 of the Contravention Application filed 5 February 2019, be dismissed.

3. That Judgment in relation to the Contravention Application filed 5 February 2019, be reserved.

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 Delahunty & Delahunty 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: SYC 4163 of 2016

Mr Delahunty

Applicant

And

Ms Delahunty

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This is a contravention hearing. I am being asked to determine that there is no case to answer in respect of the first three counts, that all have similarities. It is essentially submitted on behalf of the Respondent mother that the evidence before the Court does not give rise to a case that needs to be answered in respect of whether the mother intentionally failed to comply with the order or made no reasonable attempt to comply with the order. 

2. It is submitted on her behalf that on the Applicant father’s evidence alone, the Court would find that effectively the father has not established prima facie that the mother intentionally failed to comply with the order or more importantly perhaps, that she made no reasonable attempt to comply with the order. It is submitted that the evidence supports a finding that what she did was all she reasonably could do to effect compliance with the order.

3. At this point in the case I am not satisfied that that submission is supported in fact and I will not strike out the first three counts of the father’s Contravention Application at this point in time, nor determine that the mother has no case to answer in respect of them. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 May 2019.

Associate: 

Date:  26 November 2019