DUNLOP & DURAN - [2019] FCCA 1025

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUNLOP & DURAN

[2019] FCCA 1025

Catchwords:
FAMILY LAW – Application – contravention – reasonable excuse not established.

Legislation:

Family Law Act 1975 (Cth), ss.65DAC, 70NAA, 70NAE, 70NAF, 70NAC, 70NDA, 70NEA, 70NFA

Evidence Act 1995 (Cth), s.55

Cases cited:

Taikato v R (1996) 186 CLR 454

Childers & Leslie (2008) FLC 93-356

Sathra & Sathra [2012] FamCA 112

In the Marriage of O’Brien (1993) FLC 92-396

Applicant:

MR DUNLOP

Respondent:

MS DURAN

File Number:

PAC 632 of 2016

Judgment of:

Judge Obradovic

Hearing date:

29 March 2019

Date of Last Submission:

29 March 2019

Delivered at:

Parramatta

Delivered on:

30 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr Todd

Solicitors for the Applicant:

Sarah Bevan Family Lawyers

Counsel for the Respondent:

Ms Torrisi

Solicitors for the Respondent:

Family Law Practice

ORDERS

That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 1 March 2017 in that:
(a)On 6 March 2018 in breach of order 2 and 21(a) made on 1 March 2017 the Respondent without reasonable excuse engaged the child [X] in psychological treatment without consultation with, or the consent of, the Applicant;
(b)On 13 June 2018 in breach of order 2 made on 1 March 2017 the Respondent without reasonable excuse applied to enrol the child [X] in School A High School and School B High School without the consent of the Applicant and has enrolled the child [X] in School A High School without the consent of the Applicant;
(c)On 2 September 2018 in breach of order 12(c) made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
(d)On 5 September 2018 in breach of order 4 made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
(e)On 19 September 2018 at School C Primary in breach of order 4 made on 1 March 2017the Respondent without reasonable excuse refused to allow the Applicant spend time with the child [X].
(f)On 28 September 2018 in breach of order 6(b) made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].
The matter is listed for sentence at 10am on 22 May 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 632 of 2016

MR DUNLOP

Applicant

And

MS DURAN

Respondent

REASONS FOR JUDGMENT

On 29 March 2019 the Court heard the applicant father’s Application-Contravention, which the respondent mother pleaded “guilty but with reasonable excuse” to[1]. There were 6 counts in all.
[1] The plea was amended on the hearing of the contravention from not guilty to guilty but with reasonable excuse
The onus rests on the respondent, who pleads that she…

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 DUNLOP & DURAN

Details

AGLC: Dunlop and Duran [2019] FCCA 1025
Case: [2019] FCCA 1025
Decision Date: 30 April 2019

CaseChat Overview and Summary

In the matter of *Dunlop & Duran*, Judge Obradovic of the Federal Circuit Court was required to determine whether the Respondent had contravened court orders made on 1 March 2017, and if so, whether there was a reasonable excuse for such contraventions. The Applicant alleged multiple breaches relating to the child's psychological treatment, school enrolment, and time spent with the Applicant.

The court was tasked with determining if the Respondent's actions constituted contraventions of specific orders concerning consultation, consent, and the facilitation of time between the child and the Applicant. A key element of the determination was whether any established contraventions were committed "without reasonable excuse."

Judge Obradovic found that the Respondent had, without reasonable excuse, contravened several orders. These contraventions included engaging the child in psychological treatment without the Applicant's consultation or consent, enrolling the child in a high school without the Applicant's consent, and repeatedly refusing to allow the Applicant to spend time with the child on various dates. The court's reasoning focused on the Respondent's failure to demonstrate a reasonable excuse for these actions, thereby establishing the contraventions.

Consequently, the court recorded a finding that the Respondent had contravened the orders without reasonable excuse. The matter was then listed for sentencing on 22 May 2019.

Orders

Orders of the court

That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 1 March 2017 in that:

(a) On 6 March 2018 in breach of order 2 and 21(a) made on 1 March 2017 the Respondent without reasonable excuse engaged the child [X] in psychological treatment without consultation with, or the consent of, the Applicant;

(b) On 13 June 2018 in breach of order 2 made on 1 March 2017 the Respondent without reasonable excuse applied to enrol the child [X] in School A High School and School B High School without the consent of the Applicant and has enrolled the child [X] in School A High School without the consent of the Applicant;

(c) On 2 September 2018 in breach of order 12(c) made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].

(d) On 5 September 2018 in breach of order 4 made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].

(e) On 19 September 2018 at School C Primary in breach of order 4 made on 1 March 2017the Respondent without reasonable excuse refused to allow the Applicant spend time with the child [X].

(f) On 28 September 2018 in breach of order 6(b) made on 1 March 2017 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child [X].

The matter is listed for sentence at 10am on 22 May 2019.

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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