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:
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.
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.
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.
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 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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