DELAINE & DELAINE - [2020] FCCA 3069

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELAINE & DELAINE

[2020] FCCA 3069

Catchwords:
FAMILY LAW – Contravention – alleged contraventions not established.

Legislation:

Family Law Act 1975 (Cth), ss.70NAA, 70NAC, 70NAF

Cases cited:

Sathra & Sathra [2012] FamCA 112

Applicant:

MR DELAINE

Respondent:

MS DELAINE

File Number:

BRC 8858 of 2016

Judgment of:

Judge Obradovic

Hearing date:

30 July 2020

Date of Last Submission:

13 August 2020

Delivered at:

Parramatta

Delivered on:

13 November 2020

REPRESENTATION

Appearing for the Applicant:

Mr Gittoes-Caesar

Solicitors for the Applicant:

Coleman Greig Lawyers

Appearing for the Respondent:

In person

ORDERS

The Application-Contravention filed 8 November 2019 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Delaine & Delaine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

BRC 8858 of 2016

MR DELAINE

Applicant

And

MS DELAINE

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an Application for Contravention filed by Mr Delaine (“the father”) on 8 November 2019. The respondent to the application is Ms Delaine (“the mother”).
In the contravention application, the father alleges four counts of contravention of parenting orders made by this Court by consent on 30 April 2019. The allegations of contravention relate to circumstances in which the parties’ youngest child, X born in 2010, did not spend time with the father at various junctures between July and October 2019.[1]
[1] The parties have two other children the subject of the relevant orders, however they are not the subject of this Application for Contravention.
On 11 February 2020, the mother entered pleas of not guilty for all alleged contraventions. On that occasion the application was set down for hearing to commence on 30 July 2020.
At the hearing, the parties appeared by telephone. The father was represented by Mr Gittoes-Caesar and the mother was self-represented.
Both parties were required for cross examination.

The Law dealing with Contraventions

The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A of the Family Law Act1975 (Cth).
Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:
a)Preliminary matters, including definitions and a provision relating to the standard of proof (s70NAF): subdivision A;
b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F
The meaning of “contravened an order” is…

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 DELAINE & DELAINE

Details

AGLC: DELAINE & DELAINE [2020] FCCA 3069
Case: [2020] FCCA 3069
Decision Date: 13 November 2020

CaseChat Overview and Summary

In the matter of *Delaine & Delaine*, heard before Judge Obradovic, the applicant sought to establish contraventions of parenting orders by the respondent. The specific nature of the alleged contraventions and the parenting orders in question were not detailed in the provided text, but the core of the dispute revolved around whether the respondent had failed to comply with the existing orders.

The central legal issue before the court was to determine whether the evidence presented by the applicant was sufficient to prove, on the balance of probabilities, that the respondent had contravened the parenting orders. This required the court to assess the factual allegations against the legal standard for establishing a contravention under the relevant family law legislation.

Judge Obradovic found that the applicant had not discharged the onus of proof. The court concluded that the alleged contraventions were not established on the balance of probabilities, meaning the evidence did not sufficiently demonstrate that the respondent had failed to comply with the parenting orders. Consequently, the application seeking to establish these contraventions was dismissed.

Orders

Orders of the court

The Application-Contravention filed 8 November 2019 is dismissed.

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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