English & Eklund (No 2)

Case [2024] FedCFamC2F 1317


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

English & Eklund (No 2) [2024] FedCFamC2F 1317

File number(s): PAC 3379 of 2019
Judgment of: JUDGE OBRADOVIC
Date of judgment: 25 September 2024
Catchwords: FAMILY LAW – CONTRAVENTION – No intentional failure to comply – Made reasonable attempts at complying – Lack of evidence of contraventions – Contravention dismissed  
Legislation:

Evidence Act 1995 (Cth) ss 91, 140, 144

Family Law Act 1975 (Cth) s 70NAC

Cases cited:

English & English [1986] FamCA 69

Fauna Holdings v Mitchell [2000] FamCA 313

Harvey & Harvey [2018] FamCA 516

Hay & Hay [1998] FamCA 95

Lindsey & Lindsey [1995] FamCA 117

Nieuwstraten & Nieuwstraten [1987] FamCA 11

O’Brien & O’Brien [1992] FamCA 52

Reilly & Reilly [1995] FamCA 152

Stavros & Stavros [1984] FamCA 38

Vedders & Gittens [2023] FedCFamC1A 138

Division: Division 2 Family Law
Number of paragraphs: 94
Date of hearing: 16 September 2024
Place: Parramatta
Appearing for the Applicant: In person
Appearing for the Respondent: In person
Solicitor for the Independent Children's Lawyer: Ms Beach

ORDERS

PAC 3379 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ENGLISH

Applicant

AND:

MS EKLUND

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The Application – Contravention filed 22 August 2024 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

  1. The applicant father (‘father’) alleges that the respondent mother (‘mother’) contravened final parenting orders on seven occasions, by way of an Application – Contravention filed 22 August 2024. For reasons which are explained below, the application is dismissed.

  2. The parties are the parents of almost 12-year-old X. X was born in 2012. She lives with the mother and is to spend time with the father.

  3. Parenting proceedings were first commenced by the father in July 2019 in the then Federal Circuit Court of Australia. An order transferring the matter to the then Family Court of Australia was made in April 2020, with the matter being allocated to the Magellan List. The original parenting proceedings have a complex history, with many court events.

  4. Lengthy reasons for interim judgment were delivered in those original…

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AGLC
English & Eklund (No 2) [2024] FedCFamC2F 1317
Case
[2024] FedCFamC2F 1317
Decision Date

CaseChat Overview and Summary

The matter before the court involved a contravention application filed by Mr English against Ms Eklund, following an alleged failure to comply with a parenting order. The case was heard in Division 2 of the Federal Circuit and Family Court of Australia. Mr English alleged that Ms Eklund had intentionally failed to comply with certain aspects of the parenting order, while Ms Eklund maintained that she had made reasonable attempts to comply and that there was a lack of evidence to substantiate the allegations.

The court was required to determine whether Ms Eklund had contravened the parenting order by intentionally failing to comply, or whether she had made reasonable attempts to comply despite not achieving full compliance. The court also needed to assess the evidence presented by both parties to determine if there was sufficient proof of the alleged contraventions.

In its reasoning, the court found that there was insufficient evidence to support the contention that Ms Eklund had intentionally failed to comply with the parenting order. The court acknowledged that Ms Eklund had made reasonable attempts to comply with the order, and that the evidence did not clearly demonstrate intentional non-compliance. As a result, the court dismissed the contravention application. The dismissal of the application was based on the lack of evidence to substantiate the allegations of intentional failure to comply.

In light of the court's findings, it ordered that the contravention application filed on 22 August 2024 be dismissed. The order was subject to entry in the Court’s records and could be subject to review or variation in accordance with the relevant rules.

Orders

Orders of the court

PAC 3379 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ENGLISH

Applicant

AND:

MS EKLUND

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The Application – Contravention filed 22 August 2024 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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