Donovan and Hargrave - [2012] FMCAfam 306

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DONOVAN & HARGRAVE

[2012] FMCAfam 306

FAMILY LAW – Children – parenting orders – contravention – application to deal with Respondent for contravention of parenting orders – two children aged 14 and 11 residing with Respondent father – whether Respondent intentionally failed to comply with order – reasonable excuse – whether reasonable excuse established.

Family Law Act 1975, ss.70NAC, 70NAE, 70NEA, 70NEB
Federal Magistrates Court Rules 2001, rr.25B.02, 25B.04

Donovan & Hargrave [2011] FMCAfam 1468
In the Marriage of O’Brien (1993) 16 Fam LR 723; FLC 92-369
Matthews & Millar (1988) 12 Fam LR 205
Stevenson v Hughes (1993) FLC 92-363

Applicant:

MS DONOVAN

Respondent:

MR HARGRAVE

File Number:

PAC 1122 of 2009

Judgment of:

Scarlett FM

Hearing dates:

13-14 December 2011

Date of Last Submission:

14 December 2011

Delivered at:

Sydney

Delivered on:

3 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Jamieson

Solicitors for the Applicant:

Gibson Howlin Lawyers

The Respondent:

In person

ORDERS

The Respondent Father did on 13 February 2011 without reasonable excuse contravene Order 6.1 made on 11 February 2011 by failing to bring the children [X] born [in] 1997 and [Y] born [in] 2000 to [B] McDonald’s in order that the Applicant Mother could spend time with them.
The Respondent Father did on 27 February 2011 without reasonable excuse contravene Order 6.1 made on 11 February 2011 by failing to bring the said children [X] and [Y] to [B] McDonald’s in order that the Applicant Mother could spend time with them.
Count 2 alleging a contravention of Order 6.2 made on 1 February 2011 is dismissed.
Count 4 alleging an ongoing contravention on an unspecified date or on unspecified dates of Order 13 made on 21 December 2010 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Donovan & Hargrave is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

PAC 1122 of 2009

MS DONOVAN

Applicant

And

MR HARGRAVE

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the mother of two boys for findings by the Court that the father has without reasonable excuse breached parenting orders made by this Court on 21 December 2010 and 11 February 2011. The mother also alleges further and continuing contraventions of those orders and of further orders made on 18 April 2011.
The Orders said to have been contravened are Orders 6.1 and 6.2 of the Orders made on 11 February 2011 and Order 13 of the Orders made on 21 December 2010.
The Orders of 11 February 2011 were made by consent. The Orders of 21 December 2010 were made after an interim hearing (Donovan & Hargrave[1]).
[1] [2011] FMCAfam 1468
Orders 6.1 and 6.2 made by consent on 11 February 2011 state:
6. That Order 8 of the Orders made on 21 December 2010 be varied so that the Mother spends time with the children as follows:-
6.1 From each…

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 Donovan and Hargrave

Details

AGLC: Donovan and Hargrave [2012] FMCAfam 306
Case: [2012] FMCAfam 306
Decision Date: 3 April 2012

CaseChat Overview and Summary

In the Family Court of Australia, Donovan and Hargrave involved the Applicant Mother seeking enforcement of visitation orders and the Respondent Father accused of non-compliance. The Applicant alleged the Respondent failed to facilitate scheduled visits between her and their children, [X] and [Y], on multiple occasions, contrary to specific court orders. The legal issues centred around the interpretation and enforcement of the orders, as well as the determination of whether the Respondent had reasonable excuses for not adhering to the visitation schedule.

The Court examined the evidence presented regarding the visitation orders and the Respondent's compliance. It found that the Respondent did not provide reasonable excuses for his failure to bring the children to the specified locations for visitation on the specified dates. The Court concluded that the Respondent's actions constituted a breach of the orders. However, regarding the ongoing contravention of another order, the Court dismissed the allegation due to insufficient evidence.

Based on the findings, the Court ordered that the Respondent was in breach of certain visitation orders on specific dates, while dismissing other counts due to lack of evidence. The Court's decision underscored the importance of adhering to court-mandated visitation schedules and the consequences of failing to do so without reasonable justification. The final orders mandated the Respondent to comply with the visitation orders and directed the parties to adhere to the terms of the court's decision.

Orders

Orders of the court

The Respondent Father did on 13 February 2011 without reasonable excuse contravene Order 6.1 made on 11 February 2011 by failing to bring the children [X] born [in] 1997 and [Y] born [in] 2000 to [B] McDonald’s in order that the Applicant Mother could spend time with them.

The Respondent Father did on 27 February 2011 without reasonable excuse contravene Order 6.1 made on 11 February 2011 by failing to bring the said children [X] and [Y] to [B] McDonald’s in order that the Applicant Mother could spend time with them.

Count 2 alleging a contravention of Order 6.2 made on 1 February 2011 is dismissed.

Count 4 alleging an ongoing contravention on an unspecified date or on unspecified dates of Order 13 made on 21 December 2010 is 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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