DING & DING - [2015] FamCA 648

FAMILY COURT OF AUSTRALIA

DING & DING

[2015] FamCA 648

FAMILY LAW – CHILDREN – four counts of contravention alleged by mother – alleged contravention of spend time arrangements with children – three counts of contravention not established – not satisfied on balance of probabilities – one count of contravention dismissed – reasonable excuse.

Family Law Act 1975 (Cth), ss 70NAA(3), 70NAC, 70NAE, 70NAF, 70NDB, 70NEA, 70NEB, 70NEC, 70NFB(2) and 70NFF(3)
Family Law Rules 2004 (Cth), r 21.08

Abud & Abud [2010] FamCA 1132
Childers & Leslie [2008] FamCAFC 5
Ding & Ding [2014] FCCA 1688
Dobbs v Brayson [2007] FamCA 1261
In the Marriage of Gaunt (1978) FLC 90-468

APPLICANT:

Ms Ding

RESPONDENT:

Mr Ding

FILE NUMBER:

ADC

4389

2012

DATE DELIVERED:

7 August 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide

JUDGMENT OF:

Thornton J

HEARING DATE:

30 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

Harry Alevizos

COUNSEL FOR THE RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE RESPONDENT:

Jaak Oks Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boehm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Georgina Parker Lawyers

Orders

Finding that three counts of contravention not established and satisfied that there was a reasonable excuse for the fourth count of contravention.
That the Contravention Application filed 20 October 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ding & Ding has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: ADC 4389 of 2012

Ms Ding

Applicant

And

Mr Ding

Respondent

REASONS FOR JUDGMENT

Introduction

The mother brings an application for contravention of interim parenting orders made by Judge Brown in the Federal Circuit Court in Adelaide on 31 July 2014. On the same date Judge Brown transferred all applications to the Family Court in Adelaide.
The proceedings concern two children of the marriage, B aged 12 and C aged 10.
Pursuant to those interim parenting orders, the children were to spend time with the mother each Wednesday from 4.00 pm until 6.00 pm and each Sunday from 10 am until 4.30pm. The children were to be delivered and collected by the father from the mother’s home, noting that the father was to withdraw from the vicinity of the mother’s premises during the periods that the mother was spending time with the children. These orders represented a small increase of two and a half hours in the time for the children to spend with the mother each Sunday, from the previous arrangement.
It was agreed that the interim orders were made in circumstances where the parties did not attend court and the orders were emailed and posted to the parents. The reasons for judgment were delivered on 31 July 2014 in the absence of the parents but both parents had attended the original contested hearing on 17 July 2014 where they were represented by counsel.
The mother’s Application…

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: DING & DING [2015] FamCA 648
Case: [2015] FamCA 648
Decision Date: 7 August 2015

CaseChat Overview and Summary

The mother alleged four counts of contravention against the father concerning the children's spend time arrangements. The proceedings were heard by Thornton J in the Family Court of Australia.

The court was required to determine whether the father had contravened the parenting orders regarding the children's time with him, and if so, whether he had a reasonable excuse for any contravention. Specifically, the court had to be satisfied on the balance of probabilities that the alleged contraventions occurred.

Thornton J found that three of the four alleged contraventions were not established on the balance of probabilities. For the fourth alleged contravention, the court was satisfied that the father had a reasonable excuse. Consequently, the Contravention Application filed by the mother on 20 October 2014 was dismissed.

Orders

Orders of the court

Finding that three counts of contravention not established and satisfied that there was a reasonable excuse for the fourth count of contravention.

That the Contravention Application filed 20 October 2014 be 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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