Don and McGlennan (No 3) - [2011] FamCA 346

FAMILY COURT OF AUSTRALIA

DON & MCGLENNAN (NO 3)

[2011] FamCA 346

FAMILY LAW - CONTRAVENTION – where the mother alleges that the father has repeatedly contravened orders for her to spend time with the child without reasonable excuse – where the burden of proof rests with the mother – whether the mother has established on the balance of probabilities that the father has failed to or made no reasonable attempt to comply with the orders – where the Court held that the mother has not overcome the burden of proof – held that the father has not contravened the orders – where the matter was adjourned to allow for further submissions in relation to the orders to be made

Evidence Act 1995 (Cth) ss 8 & 140
Family Law Act 1975 (Cth) ss 65N, 69ZM, 69ZT, 70NAC, 70NAD, 70NAE & 70NAF

Briginshaw & Briginshaw (1938) 60 CLR 336
Judd & Marr [2010] FamCAFC 55
Miller v Minister of Pensions [1947] 2 All ER 372

APPLICANT:

Ms Don

RESPONDENT:

Mr McGlennan

INDEPENDENT CHILDREN’S LAWYER:

Elliotts Barristers & Solicitors

FILE NUMBER:

DNC

148

2009

DATE DELIVERED:

17 May 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

22, 23, 24 and 25 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 Barristers and Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Elliott

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Elliotts Barristers & Solicitors

Orders

The matter is listed for further submissions as to the orders which each of the parties and the Independent Children’s Lawyer are seeking to a date to be fixed after consultation with Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Don & McGlennan (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 148 of 2009

Ms Don

Applicant

And

Mr McGlennan

Respondent

REASONS FOR JUDGMENT

introduction

The current proceedings before the Court are the Contravention Applications filed by the mother Ms Don on 25 November 2010. The mother alleged that on various dates between 7 August 2010 and 20 November 2010 “the father unreasonably refused to allow the mother to spend time with [M] ([…]/9/2000) thereby frustrating the Court Orders”. (See Contravention Application Schedule filed by the mother on 25 November 2010).
The father denied that he had contravened the orders without reasonable excuse.
The relevant orders were made on 3 June 2010 when His Honour Justice Burr delivered his judgment and made orders after hearing a lengthy trial.
The Orders provided that M live with the father who was to have sole parental responsibility for M. The mother claims that the father contravened paragraphs 3 and 4 of the Orders of 3 June 2010.
Paragraphs 3 and 4 are as follows:
“3.That save and except as otherwise agreed between the parties, the mother spend time with…

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 Don and McGlennan (No 3)

Details

AGLC: Don and McGlennan (No 3) [2011] FamCA 346
Case: [2011] FamCA 346
Decision Date: 17 May 2011

CaseChat Overview and Summary

In *Don and McGlennan (No 3)*, Dawe J considered allegations by the mother that the father had contravened court orders requiring him to allow her to spend time with their severely autistic child, M. The mother alleged nine specific instances of the father refusing to hand over M between August and November 2010, thereby frustrating the court orders. The father denied any contravention without reasonable excuse, providing his own account of the events.

The central legal issue before the court was whether the mother had discharged her burden of proof, on the balance of probabilities, to establish that the father had failed to comply with the parenting orders or made no reasonable attempt to do so. This required the court to consider the evidence presented by both parties in relation to each alleged contravention.

Dawe J applied section 140 of the *Civil Proceedings Act 1995 (Cth)*, which mandates that a court must find a party's case proved if satisfied on the balance of probabilities, taking into account the nature of the cause of action, the subject matter, and the gravity of the allegations. The court found that the mother had not overcome the burden of proof. Consequently, Dawe J held that the father had not contravened the orders as alleged.

The matter was adjourned to allow for further submissions from the parties and the Independent Children’s Lawyer regarding the orders to be made.

Orders

Orders of the court

The matter is listed for further submissions as to the orders which each of the parties and the Independent Children’s Lawyer are seeking to a date to be fixed after consultation with Counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 8(1) Operation of other Acts etc. (1)This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903 . Section 140Civil proceedings: standard of proof (1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. In the Dictionary of Evidence Act 1995 (Cth) “case” of a party means “the facts in issue in respect of which the party bears the legal burden of proof”. The mother and father have three children, Q who was born in October 1994, L who was born in February 1996 and M who was born in September 2000. His Honour Justice Burr made orders by consent which provided for Q and L to live with the mother. He then heard lengthy proceedings to determine the parenting orders in relation to the child M. M has been described as severely autistic. The particulars of the history of the relationship between the parties and the children are set out in the detailed judgment of His Honour Justice Burr delivered on 3 June 2010. The orders made by His Honour Justice Burr are the subject of an appeal instituted by the Independent Children’s Lawyer and supported by the mother. The mother alleges that the father has “without reasonable cause or excuse refused to hand over [M]” on 9 occasions from August to November this year, details of which are set out in the schedule attached to the application for contravention. (Paragraph 6 of the affidavit of the mother filed on 25 November 2010). The Contravention Application has attached to it a schedule listing nine separate dates (7 August; 14 August; 28 August; 18 September; … September; 16 October; 23 October; 6 November and 20 November 2010) indicating a time of 10.00 am for each occasion and the S Shopping Centre as the place on each occasion. The statement of the alleged contravention in the Contravention Application is the same for each occasion and is as follows, “the father unreasonably refused to allow the mother to spend time with [M] ([…]/9/2000) thereby frustrating the Court Orders”. No issue was raised at the hearing about the failure to attach a copy of the Order of 3 June 2010 to the Contravention Application. The mother filed a further affidavit on 29 November 2010 providing further sworn evidence about each occasion save and except there was no reference to the 20 November 2010 in that affidavit. The father denies any contravention without reasonable excuse. He relied upon his affidavits filed on 16 December 2010 and 21 March 2011 and his oral evidence. In his first affidavit the father said that on some occasions when the mother did not spend time with M it was because M was sick or had gone to hospital. He also said in his first affidavit that on a number of occasions the mother refused to pick up M, saying that she was either sick or busy. He says in this affidavit that the mother said she was sick on 11 September 2010. The 11 September 2010 however is not a date upon which the mother alleges there was a contravention.