Eagle and Scarlett - [2017] FCCA 2814

FEDERAL CIRCUIT COURT OF AUSTRALIA

EAGLE & SCARLETT

[2017] FCCA 2814

Catchwords:
FAMILY LAW – Contravention – where mother admitted contraventions but claimed reasonable excuse pursuant to s.70NAE(5) of the Family Law Act1975 – no reasonable excuse established.

Legislation:

Family Law Act 1975, ss.70NAA, 70NAC, 70NAF, 70NAE, 70NDA, 70NEA, 70FA

Cases cited:

Taikato v R (1996) 186 CLR 454

Childers & Leslie (2008) FLC 93-356
In the Marriage of O’Brien (1993) FLC92-396
Vaughton & Randle (No.2) [2013] FamCA 286

Applicant:

MR EAGLE

Respondent:

MS SCARLETT

File Number:

PAC 2781 of 2016

Judgment of:

Judge Obradovic

Hearing date:

25 July 2017

Date of Last Submission:

25 July 2017

Delivered at:

Parramatta

Delivered on:

21 November 2017

REPRESENTATION

Appearing for the Applicant:

In person

Appearing for the Respondent:

Ms Reid

Solicitors for the Respondent:

Rafton Family Lawyers

Appearing for the Independent Children's Lawyer:

Ms Newland

Solicitors for the Independent Children's Lawyer:

JLM Family Lawyers Pty Ltd

ORDERS

That a finding be recorded that the Respondent mother, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 2 December 2016 and as varied on 3 April 2017 in that:
(a)On 18 May 2017 at 10am at (omitted) Police Station (omitted), she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.
(b)On 20 May 2017 at 10am at (omitted) Police Station, (omitted) she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.
(c)On 25 May 2017 at 10am at (omitted) Police Station, (omitted) she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.
The matter is listed for directions at 9am on 5 February 2018 for the purposes of being allocated a hearing date for sentence in respect of the contraventions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2781 of 2016

MR EAGLE

Applicant

And

MS SCARLETT

Respondent

REASONS FOR JUDGMENT

Introduction

Since the father commenced proceedings in June 2016, the father has filed three Application-Contraventions. These are the Reasons for Judgment in relation to an Application-Contravention filed by the father on 19 June 2017.
The parties to the proceedings are the Applicant father, Mr Eagle and the Respondent mother, Ms Scarlett.

Short Chronology

The mother was born on (omitted) 1988 and is currently aged 29 years.
The father was born on (omitted) 1977 and is currently aged 41 years.
The parties have one child together, X born (omitted) 2015 and currently aged 2 years.
The mother has three other children from previous relationships.
On 2 December 2016 the Court made orders as follows:
1. The child X born (omitted) 2015 live with the Respondent mother.
2. Within 48 hours the parties do all acts and sign all documents…

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 Eagle and Scarlett

Details

AGLC: Eagle and Scarlett [2017] FCCA 2814
Case: [2017] FCCA 2814
Decision Date: 21 November 2017

CaseChat Overview and Summary

In the matter of *Eagle and Scarlett*, heard by Judge Obradovic, the dispute concerned allegations by the Applicant father that the Respondent mother had contravened parenting orders previously made by the Federal Circuit Court. The specific contraventions alleged related to the mother failing to make the child available to spend time with the father on three separate occasions in May 2017, as stipulated by paragraph 3(c) of the existing orders.

The central legal issue before the court was whether the Respondent mother had, without reasonable excuse, contravened the Federal Circuit Court's orders of 2 December 2016, as varied on 3 April 2017, by failing to facilitate the child's time with the father on the specified dates. The court was required to determine if the mother's actions constituted a breach of the court's orders and, if so, whether any reasonable excuse existed for those breaches.

Judge Obradovic found that the Respondent mother had, without reasonable excuse, contravened the parenting orders on 18 May 2017, 20 May 2017, and 25 May 2017, by failing to make the child available for time with the father. The court recorded this finding and listed the matter for further directions on 5 February 2018, at which time a hearing date for sentence in respect of the contraventions would be allocated.

Orders

Orders of the court

That a finding be recorded that the Respondent mother, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 2 December 2016 and as varied on 3 April 2017 in that:

(a) On 18 May 2017 at 10am at (omitted) Police Station (omitted), she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.

(b) On 20 May 2017 at 10am at (omitted) Police Station, (omitted) she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.

(c) On 25 May 2017 at 10am at (omitted) Police Station, (omitted) she failed to make the child available to spend time with the father in accordance with paragraph 3(c) of the orders.

The matter is listed for directions at 9am on 5 February 2018 for the purposes of being allocated a hearing date for sentence in respect of the contraventions.

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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