Devine & Devine (No 2) - [2022] FedCFamC2F 920

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Devine & Devine (No 2) [2022] FedCFamC2F 920

File number(s): PAC 2192 of 2016

Judgment of: JUDGE DICKSON

Date of judgment: 14 July 2022

Catchwords: FAMILY LAW - CONTRAVENTION APPLICATION – Part heard trial – oral application by respondent of no case to answer on certain counts – test for no case to answer - where applicant’s pleadings with respect to three counts are deficient – no case to answer on those counts – where there is a case to answer on two counts – counts to be listed for Trial

Cases cited: Patrick v Capital Finance Corporation and Ors V637 of 2001

Division: Division 2 Family Law

Number of paragraphs: 73

Date of hearing: 1 July 2022

Solicitor for the Applicant: Mr Lynch of Gorval Lynch

Counsel for the Respondent: Ms Tabbernor

Solicitor for the Respondent: Sydney Family Law Specialists Pty Ltd
ORDERS

PAC 2192 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DEVINE

Applicant

AND:
MS DEVINE

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

14 JULY 2022

THE COURT ORDERS THAT:
1.Counts 8, 9, 10 and 14 of the husband’s Application for Contravention be dismissed.
2.Counts 11, 12 and 13 of the said application be listed for Trial on 3 February 2023 at 10:00am SA time (1 day allowed) such hearing to occur by way of Microsoft Teams.
3.The hearing listed on 31 August 2022 at 9:30am be vacated.
4.The respondent wife have leave to file and serve an affidavit (if she is so advised) no later than 21 days prior to the Trial date.
5.The applicant husband have leave to file and serve an affidavit in reply no later than 7 days prior to the Trial date.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Devine & Devine has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION

The Trial in this matter concerns an Application for Contravention filed on 3 November 2021 (‘the Application’) by the applicant husband (‘the husband’).
On 7 February 2018, final consent orders were made in relation to the parties children B born in 2009 and C born in 2011 (‘the children’).
The Application was listed for final hearing on 1 July 2022.…

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 Devine & Devine (No 2)

Details

AGLC: Devine & Devine (No 2) [2022] FedCFamC2F 920
Case: [2022] FedCFamC2F 920
Decision Date

CaseChat Overview and Summary

In the matter of Devine & Devine (No 2), the Federal Circuit and Family Court of Australia considered an Application for Contravention filed by the husband against the wife, alleging breaches of parenting orders. The court was required to determine whether the wife's conduct contravened the final parenting orders made on 7 February 2018. Specifically, the court needed to assess whether the husband's pleadings were sufficient to establish a prima facie case against the wife for each of the alleged breaches.

The court evaluated the husband's affidavit and the text messages between the parties to determine if there was a case to answer on each count. The wife argued that the husband's pleadings were deficient in establishing her refusal to allow the husband time with the children as required by the final order. The court agreed with the wife's submissions regarding Counts 8, 9, 10, and 14, finding that the husband's evidence did not demonstrate the wife's refusal or prevention of time spending, and these counts were dismissed. However, the court found that there was a prima facie case to answer regarding Counts 11 and 12, which were allowed to proceed to trial.

The court applied the test for a no case to answer submission, considering whether, on the present state of the evidence, the court would find for the applicant if no further evidence was called. The court concluded that the husband's pleadings were insufficient to establish a prima facie case for Counts 8, 9, 10, and 14, resulting in their dismissal. Counts 11 and 12 were allowed to proceed to trial as there was sufficient evidence to establish a prima facie case against the wife. The court ordered that Counts 8, 9, 10, and 14 be dismissed and that Counts 11, 12, and 13 be listed for trial.

Orders