Don and McGlennan (No 2)

[2011] FamCA 216

FAMILY COURT OF AUSTRALIA

DON & MCGLENNAN (NO 2) [2011] FamCA 216

FAMILY LAW - PRACTICE AND PROCEDURE – where the father seeks that the contravention proceedings be dismissed on the grounds that a case has not been established – held that it was inappropriate to dismiss the proceedings at a stage where the father has not presented his case to the Court – application refused.

Family Law Act 1975 (Cth) ss 65N & 70NAC

APPLICANT: Ms Don

RESPONDENT: Mr McGlennan

INDEPENDENT CHILDREN’S LAWYER: Ms Elliott

FILE NUMBER: DNC 148 of 2009

DATE DELIVERED: 23 March 2011

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 23 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McLaren

SOLICITOR FOR THE APPLICANT: Asha McLaren

COUNSEL FOR THE RESPONDENT: Mr O’Donnell

SOLICITOR FOR THE RESPONDENT: Halfpennys

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Elliott

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Elliotts, Barrister & Solicitor

Orders

1. The Court does not accede to the request by the father’s solicitor to dismiss the contravention proceedings at this stage.

IT IS NOTED that publication of this judgment under the pseudonym Don & McGlennan (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 148 of 2009

Ms Don

Applicant

And

Mr McGlennan

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The contravention proceedings have reached a stage where the mother has closed her case.  The only evidence received by the Court in relation to the mother’s case is the evidence of the mother in two affidavits (one filed on 25 November and one filed on 29 November 2010 in support of the contravention applications) and the mother’s oral evidence;  evidence in-chief, cross-examination by both the father’s counsel and the Independent Children’s Lawyer’s counsel, and re-examination by the mother’s counsel.

2. The submission on behalf of the father is that a case to answer has not been established to the extent that section 70NAC defines “contravened an order” as:

   A person is taken for the purposes of this Division to have contravened an order under this Act, affecting children, if and only if:

   (a)      where the person is bound by the order, he or she has:

   (i)       intentionally failed to comply with the order;  or

   (ii)      made no reasonable attempt to comply with the order.

3. The provisions of subsection (b) were not relevant to these submissions. 

4. Counsel submits that the prima facie case has not been established because there has been no evidence which establishes the intention of the father and therefore the evidence does not fulfil the requirements to establish a prima facie case under section 70NAC. 

5. The evidence of the mother, if taken as presented in her affidavits and oral evidence, is that she attended on the occasions referred to in the contraventions at the place of handover and that the father and the child were not there at the time, and as a result the time to be spent in accordance with the orders of Justice Burr, did not occur. 

6. The evidence as to the father’s intention is significantly missing, but in any event would be unlikely to be able to be given by the mother, unless the father had specifically expressed some intention or communicated to the mother in some way which would enable her to give that evidence.  That is particularly lacking at this stage of the proceedings.

7. However, the submissions of counsel for the mother are that the grounds of the definition in section 70NAC(a)(ii) have been made out, in that a prima facie case has been made out to establish that the father made no reasonable attempt to comply with the order. 

8. Counsel for the Independent Children’s Lawyer submits that the submissions should be dealt with in final submission, and does not support the application by the father that there is no case to answer.

9. The Court needs to consider the provisions of section 70NAC in the context of Part VII of the Act. The provisions of section 65N require a person not to hinder or prevent a person and the child from spending time together in accordance with the order, or interfere with the person and the child benefiting from spending time with each other under the order.

10. An alternative referred to by counsel for the mother is that the father made no reasonable attempt to comply with the order.  I accept that if the evidence of the mother is found to be reliable evidence, then without any response from the father, the mother would have established a prima facie case within the provisions of section 70NAC. 

11. I therefore do not consider that the proceedings can be dismissed at this stage, but will require the father, if he so chooses, to present his evidence and his case before the Court can come to a decision about the application of section 70NAC(a)(i) and (ii). 

12. I do not accede to the request to dismiss the contravention proceedings at this stage.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 March 2011.

Associate: 

Date:  31 March 2011