DENMAN & CARUSO - [2018] FCCA 3104

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENMAN & CARUSO

[2018] FCCA 3104

Catchwords:
FAMILY LAW – Application – Contravention – Reasonable excuse not established.

Legislation:

Family Law Act 1975 (Cth), ss.70NAE

Cases cited:
Argyle & Thomas [2017] FCCA 621

Childers & Leslie (2008) FLC 93-356
Eagle & Scarlett [2017] FCCA 2814
In the marriage of O’Brien (1993) FLC 92-396

Applicant:

MR DENMAN

Respondent:

MS CARUSO

File Number:

PAC 3945 of 2013

Judgment of:

Judge Obradovic

Hearing date:

30 April 2018

Date of Last Submission:

22 May 2018

Delivered at:

Parramatta

Delivered on:

31 October 2018

REPRESENTATION

Appearing for the Applicant:

Ms Morrison

Solicitors for the Applicant:

Mahony Family Lawyers

Appearing for the Respondent:

In person

ORDERS

That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 21 July 2017 in that:
(a)The Respondent without reasonable excuse refused to all the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 1 December 2017;
(b)The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 15 December 2017;
(c)The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 1 January 2018; and
(d)The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 25 December 2017.
The matter is listed for sentence at 10am on 12 November 2018 prior to the commencement of the final hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3945 of 2013

MR DENMAN

Applicant

And

MS CARUSO

Respondent

REASONS FOR JUDGMENT

On 30 April 2018 the Court heard the father’s Application – Contravention which was filed on 19 January 2018.
The mother pleaded guilty to all four counts but with reasonable excuse. The mother was cross examined.
The onus is on the mother to establish a reasonable excuse for the admitted contraventions.
The contraventions relate to the time the children were to spend with the father pursuant to orders made by consent on 21 July 2017. The contraventions related to:
a)The weekend of 1 December 2017;
b)The weekend of 15 December 2017;
c)Christmas Day – 25 December 2017; and
d)School holidays – 1 January 2018.
The father has in fact not seen the children since November 2017. Time in accordance with the July 2017 orders stopped after the mother decided she would not comply by making the children available.
The Court has, in a number of decisions delivered last year, set out the relevant principles applicable to contravention proceedings and the reasonable excuse argument. These principles are long standing, and are adopted herein[1].
[1] For example: Argyle & Thomas [2017] FCCA 621 and Eagle…

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 DENMAN & CARUSO

Details

AGLC: Denman and Caruso [2018] FCCA 3104
Case: [2018] FCCA 3104
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the matter of *Denman & Caruso*, heard by Judge Obradovic, the applicant sought to record a finding that the respondent had contravened court orders regarding the children's time with the applicant. The dispute centred on specific dates in late 2017 and early 2018 when the respondent allegedly refused to allow the applicant to spend time with the two children.

The court was required to determine whether the respondent had, without reasonable excuse, contravened the Federal Circuit Court orders made on 21 July 2017. Specifically, the court had to assess the respondent's actions on 1 December 2017, 15 December 2017, 25 December 2017, and 1 January 2018, in relation to the children's time with the applicant.

Judge Obradovic found that the respondent had, without reasonable excuse, contravened the orders on each of the specified dates. The court recorded a finding to this effect. The matter was then listed for sentencing on 12 November 2018, preceding the commencement of the final hearing.

Orders

Orders of the court

That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 21 July 2017 in that:

(a) The Respondent without reasonable excuse refused to all the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 1 December 2017;

(b) The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 15 December 2017;

(c) The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 1 January 2018; and

(d) The Respondent without reasonable excuse refused to allow the Applicant to spend time with the children [X] born 2008 and [Y] born 2012 on 25 December 2017.

The matter is listed for sentence at 10am on 12 November 2018 prior to the commencement of the final hearing.

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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