DILLARD & GRAHAM - [2014] FCCA 1842

FEDERAL CIRCUIT COURT OF AUSTRALIA

DILLARD & GRAHAM

[2014] FCCA 1842

Catchwords:
FAMILY LAW – Application pursuant to s.90RD for a declaration as to whether parties lived in a de facto relationship – mother’s evidence is the parties in de facto relationship between January and July 2011 – father’s evidence is whilst in a relationship between January and July 2011, the parties were not a couple living together on a genuine domestic basis – between January and July 2011 parties spent a minimum of four nights together, had keys to each other’s residences, had basic items of clothing and belongings at each other’s homes, considered themselves to be in a committed relationship, jointly parented their now 5 year old son – held the parties were in a de facto relationship between January and July 2011.

FAMILY LAW – Contravention Application – father found to have contravened the interim orders of 28 August 2013 as he had the parties’ son vaccinated without the consent or knowledge of the mother – orders made restraining the father from arranging or allowing medical treatment including vaccinating the child without the prior written consent of the mother or order of the Court save in an emergency – father ordered to pay the mother’s costs of the Contravention Application.

FAMILY LAW – Costs of the mother’s Application in a Case reserved on 28 August 2013 – father ordered to pay the mother’s reserved costs as he was totally unsuccessful in relation to that application.

Legislation:

Family Law Act 1975, ss.4AA, 61DA, 90SB, 90SM, 90RD, 90RJ, 117(2)

Sinclair & Hatcher [2014] FCCA 395

Applicant:

MR DILLARD

Respondent:

MS GRAHAM

File Number:

MLC 7288 of 2012

Judgment of:

Judge Bender

Hearing dates:

4 April 2014 and 16 June 2014

Date of Last Submission:

16 June 2014

Delivered at:

Melbourne

Delivered on:

20 August 2014

REPRESENTATION

Counsel for the Applicant:

Ms Harris

Solicitors for the Applicant:

Lennon Mazzeo Lawyers

Counsel for the Respondent:

Mr Puckey

Solicitors for the Respondent:

Croxford Partners

ORDERS

Pursuant to Section 90RD(1) of the Family Law Act 1975 it is declared a de facto relationship existed between the applicant father Mr Dillard and the respondent mother Ms Graham between January 2011 and July 2011.
Upon consideration of the Amended Contravention Application of the mother filed 20 November 2013 and upon:
(a)the Court being satisfied that the father has committed a contravention of an order under the Family Law Act 1975 affecting children (being a contravention of paragraph 3 of the orders made in the Federal Circuit Court of Australia at Melbourne on 28 August 2013);
(b)the father not having proved that he had a reasonable excuse for the contravention referred to in (a) above;
(c)no Court having jurisdiction under the Family Law Act having previously determined that the father has, without reasonable excuse, contravened the order referred to in (a) above; and
(d)the Court being satisfied that Subdivision B Division 13A of Part VII of the Family Law Act1975 applies to the contravention…

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 DILLARD & GRAHAM

Details

AGLC: Dillard and Graham [2014] FCCA 1842
Case: [2014] FCCA 1842
Decision Date: 20 August 2014

CaseChat Overview and Summary

In the matter of Dillard & Graham, Judge Bender considered an application pursuant to s.90RD of the *Family Law Act 1975* for a declaration as to whether the parties, Mr Dillard (the father) and Ms Graham (the mother), were in a de facto relationship. The mother asserted a de facto relationship existed between January and July 2011, while the father contended that although they were in a relationship during that period, they were not a couple living together on a genuine domestic basis. The court also addressed a contravention application by the mother concerning the father's actions regarding the parties' son.

The court was required to determine two primary legal issues. Firstly, whether the parties were in a de facto relationship between January and July 2011, as defined by the *Family Law Act 1975*. Secondly, the court had to consider whether the father had contravened interim orders made on 28 August 2013, specifically in relation to vaccinating the parties' son without the mother's consent or knowledge.

On the question of the de facto relationship, Judge Bender found that the parties were indeed in a de facto relationship between January and July 2011. This conclusion was based on evidence that they spent a minimum of four nights together during this period, possessed keys to each other's residences, kept basic clothing and belongings at each other's homes, considered themselves to be in a committed relationship, and jointly parented their son. Regarding the contravention application, the court found that the father had contravened the interim orders by having their son vaccinated without the mother's consent or knowledge, and that he had not proven a reasonable excuse for this contravention. Consequently, the father was restrained from arranging or allowing any medical treatment for the child without the mother's prior written consent, a court order, or in an emergency. The father was also ordered to pay the mother's costs for both the contravention application and her earlier application in a case, as he was unsuccessful in relation to those matters.

Orders

Orders of the court

Pursuant to Section 90RD(1) of the Family Law Act 1975 it is declared a de facto relationship existed between the applicant father Mr Dillard and the respondent mother Ms Graham between January 2011 and July 2011.

Upon consideration of the Amended Contravention Application of the mother filed 20 November 2013 and upon:

(a) the Court being satisfied that the father has committed a contravention of an order under the Family Law Act 1975 affecting children (being a contravention of paragraph 3 of the orders made in the Federal Circuit Court of Australia at Melbourne on 28 August 2013);

(b) the father not having proved that he had a reasonable excuse for the contravention referred to in (a) above;

(c) no Court having jurisdiction under the Family Law Act having previously determined that the father has, without reasonable excuse, contravened the order referred to in (a) above; and

(d) the Court being satisfied that Subdivision B Division 13A of Part VII of the Family Law Act 1975 applies to the contravention referred to in (a) above;

IT IS ORDERED THAT:

(i) the father be restrained from arranging or allowing any medical treatment for the child of the relationship X born (omitted) 2007 save with the prior written consent of the mother, order of the Court first obtained or in the case of emergency; and

(ii) the father pay the mother’s costs of the Amended Contravention Application fixed in the sum of $2,658.00.

The father pay the mother’s costs of her Application in a Case filed

20 August 2013 fixed in the sum of $2,658.00.

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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