ELIAS & ELIAS

[2020] FCCA 593

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELIAS & ELIAS [2020] FCCA 593

Catchwords:
FAMILY LAW – Parenting – Contravention Application – overnight time not facilitated – assertion of a reasonable excuse – child suffers from type 1 diabetes – Father’s capacity to care for the child – concerns regarding Father’s mental health and cognitive functioning – reasonable excuse proven – operative orders varied.

Legislation:

Family Law Act 1975 (Cth), Div.13A, sub-div E, ss.70NBA(1), 70NAC, 70NAE, 70NAE(5)(b)

Cases cited:

Childers & Leslie [2008] FamCAFC 5

Gaunt and Gaunt [1978] FamCA 97
In the Marriage of O’Brien [1992] FamCA 52

Applicant: MR ELIAS

Respondent: MS ELIAS

File Number: MLC 5387 of 2018

Judgment of: Judge Carter

Hearing dates: 7, 14, 20 and 24 February 2020

Date of Last Submission: 24 February 2020

Delivered at: Melbourne

Delivered on: 16 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Mort

Solicitors for the Applicant: Berger Kordos Lawyers

Counsel for the Respondent: Mr Hutchins

Solicitors for the Respondent: Pearce Webster Dugdales

ORDERS

1. The Father’s Contravention Application filed 3 December 2019 be dismissed.

2. Until further order, order 3(a) of the orders made 20 June 2019 be varied to provide:-

   (a)from 10.00am until 5.00pm Saturday and from 10.00am until 5.00pm Sunday on two out of every three weekends.

3. Liberty is granted to the parties to apply.

4. The matter remains listed for Final Hearing commencing on 27 July 2020.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5387 of 2018

MR ELIAS

Applicant

And

MS ELIAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Father asserts that from 24 August to 23 November 2019, the Mother has contravened orders of this Court made on 20 June 2019 (“the June 2019 orders”) by preventing overnight time occurring between him and their daughter, X born 2013 (“X”).

2. The Mother acknowledged that overnight time had not occurred on each of the occasions as pleaded by the Father in the Contravention Application filed by him on 3 December 2019 (“the Contravention Application”). However, she said she had a reasonable excuse, in that she said she believed that withholding X was – and remains – necessary to protect her health and safety.

Contravention Application

1. The Father set out eight alleged breaches of order 3(a) of the June 2019 orders as follows:-

   a)24 August 2019;

   b)31 August 2019;

   c)14 September 2019;

   d)21 September 2019;

   e)12 October 2019;

   f)2 November 2019;

   g)16 November 2019; and

   h)23 November 2019.

2. The Contravention Application contained a further three alleged contraventions of different provisions of the June 2019 orders. Those were struck out by consent at the commencement of the proceedings.

3. Each of the counts was put to the Mother through her Counsel and she denied each of the counts.

4. Evidence was then heard from the Father, who was subjected to cross-examination. The Mother and her father, Mr A (“Mr A”), both gave evidence and were then…