DING & DING

Case [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 of 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

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

  2. 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

  1. 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.

  2. The proceedings concern two children of the marriage, B aged 12 and C aged 10.

  3. 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.

  4. 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.

  5. The mother’s Application…

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DING & DING [2015] FamCA 648
Case
[2015] FamCA 648
Decision Date

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

1.

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

2.

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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