DELAHUNTY & DELAHUNTY - [2019] FamCA 304

FAMILY COURT OF AUSTRALIA

DELAHUNTY & DELAHUNTY

[2019] FamCA 304

FAMILY LAW – CONTRAVENTION – Where the father alleges that the mother contravened parenting Orders reached by consent on five occasions – Where the mother denies contravening on four occasions and asserts she had a “reasonable excuse” for contravening on the other occasion – Where the mother is found to have contravened parenting Orders by not doing all she reasonably could to discharge her obligations of compliance with the Orders on three occasions and there was no contravention on the other two occasions – Where the mother is ordered to pay the father’s flight costs in respect of the three successful contraventions and make-up time is ordered.

Family Law Act 1975 (Cth)

Childers v Leslie (2008) FLC 93-356; [2008] FamCAFC 5
In the Marriage of Stevenson & Hughes (1993) FLC 92-363; [1993] FamCA 14

APPLICANT:

Mr Delahunty

RESPONDENT:

Ms Delahunty

INDEPENDENT CHILDREN’S LAWYER:

Nicola Davies

FILE NUMBER:

SYC

4163

2016

DATE DELIVERED:

14 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:

Marsdens Law

COUNSEL FOR THE RESPONDENT:

Mr Page QC

SOLICITOR FOR THE RESPONDENT:

Life Law Solutions

INDEPENDENT CHILDREN’S LAWYER:

Appearance excused

Orders

IT IS DECLARED

That on 25 August 2017, the Respondent Mother (“the mother”) contravened paragraph 4(d) of the Orders of Federal Magistrate Purdon-Sully (as her Honour Judge Purdon-Sully then was) of 17 September 2012 (“the said primary Orders”) without reasonable excuse.
That on 16 September 2017, the mother contravened paragraph 4(d) of the said primary Orders without reasonable excuse.
That on 1 December 2017, the mother contravened paragraph 4(d) of the said primary Orders without reasonable excuse.
That the three contraventions just referred to are considered “less serious contraventions” and dealt with pursuant to Part VII Division 13A Subdivision E of the Family Law Act 1975 (Cth).

IT IS ORDERED

That the child C born in 2010 shall spend additional time with the Applicant Father (“the father”) to compensate him for the time that she did not spend with him consequent upon the contraventions of the mother declared herein, being an extra two whole weekends consisting of time from Friday evening to Sunday evening and one extra week of either the Queensland June/July or September/October 2019 school holidays, all at the father’s election, with the father to give notice to the mother of his election in accordance with requirements of the existing said primary Orders, the child to spend such additional time with the father as she does pursuant to the existing said primary Orders either in Sydney or in Brisbane at the father’s election.
That the mother pay the father the sum of $2,788 to compensate the father for the costs of his airfares and C’s airfares thrown away over the three occasions of the mother’s contravention as declared herein.

Note: The form of the order is subject to the entry of the…

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

AGLC: DELAHUNTY & DELAHUNTY [2019] FamCA 304
Case: [2019] FamCA 304
Decision Date: 14 May 2019

CaseChat Overview and Summary

In *Delahunty & Delahunty*, heard by Forrest J, the father alleged that the mother had contravened consent parenting orders on five occasions. The mother admitted to contravening on one occasion, asserting a reasonable excuse, and denied contravening on four other occasions.

The court was required to determine whether the mother had contravened the parenting orders on the alleged occasions and, if so, whether she had a reasonable excuse for any contravention. The court also needed to consider the appropriate orders to make in light of any findings of contravention.

Forrest J found that the mother had contravened the parenting orders on three occasions, specifically paragraph 4(d) of the primary orders, without reasonable excuse. The court determined these to be "less serious contraventions" and dealt with them under the relevant provisions of the *Family Law Act 1975* (Cth). No contravention was found on the remaining two occasions.

Consequently, the mother was ordered to pay the father $2,788 to compensate him for lost flight costs. Additionally, make-up time was ordered for the child C to spend with the father, comprising two extra full weekends and one extra week of school holidays, to be elected by the father.

Orders

Orders of the court

IT IS DECLARED

That on 25 August 2017, the Respondent Mother (“the mother”) contravened paragraph 4(d) of the Orders of Federal Magistrate Purdon-Sully (as her Honour Judge Purdon-Sully then was) of 17 September 2012 (“the said primary Orders”) without reasonable excuse.

That on 16 September 2017, the mother contravened paragraph 4(d) of the said primary Orders without reasonable excuse.

That on 1 December 2017, the mother contravened paragraph 4(d) of the said primary Orders without reasonable excuse.

That the three contraventions just referred to are considered “less serious contraventions” and dealt with pursuant to Part VII Division 13A Subdivision E of the Family Law Act 1975 (Cth).

IT IS ORDERED

That the child C born in 2010 shall spend additional time with the Applicant Father (“the father”) to compensate him for the time that she did not spend with him consequent upon the contraventions of the mother declared herein, being an extra two whole weekends consisting of time from Friday evening to Sunday evening and one extra week of either the Queensland June/July or September/October 2019 school holidays, all at the father’s election, with the father to give notice to the mother of his election in accordance with requirements of the existing said primary Orders, the child to spend such additional time with the father as she does pursuant to the existing said primary Orders either in Sydney or in Brisbane at the father’s election.

That the mother pay the father the sum of $2,788 to compensate the father for the costs of his airfares and C’s airfares thrown away over the three occasions of the mother’s contravention as declared herein.

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

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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