FEGLEY & SALWAY - [2016] FamCA 168

FAMILY COURT OF AUSTRALIA

FEGLEY & SALWAY

[2016] FamCA 168

FAMILY LAW – CONTRAVENTION – Where the father asserts the mother has breached orders of the court – Where the mother asserts that she has a reasonable excuse - Where the mother asserts that the child was suffering a medical condition – Where the mother asserts that she did not understand the orders of the court - Where the mother was found to have a reasonable excuse – Where the father’s Application for Contravention on the second charge is dismissed.

FAMILY LAW – COSTS – Where the father has conducted the proceedings in a particular manner – Where the father has been wholly unsuccessful – Where it is just that a costs order be made in the mother’s favour – Where the father has been wholly unsuccessful in respect of his opposition to the costs application – Where it is just that a costs order be made in respect of the costs application

Family Law Act 1975 (Cth)

APPLICANT:

Mr Fegley

RESPONDENT:

Ms Salway

INDEPENDENT CHILDREN’S LAWYER:

Mr Ng

FILE NUMBER:

SYC

6044

2013

DATE DELIVERED:

17 March 2016

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

19 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Breeze

SOLICITOR FOR THE APPLICANT:

H A Miedzinski Lawyers

SOLICITOR FOR THE RESPONDENT:

Crawford Ryan Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners

ORDER made 19.2.16

The father’s Application for Contravention filed 12 February 2015 be dismissed.

Orders

The father pay to the mother her costs in respect of the Application for Contravention filed by the father on 12 February 2015 on a party/party basis and the costs of the oral costs application made by the mother on 19 February 2016, as agreed or assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fegley & Salway has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 6044 of 2013

Mr Fegley

Applicant

And

Ms Salway

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 14 December 2015 I found that the father had established a prima facie case that on 5 February 2015 the mother contravened order 4(b) of 12 June 2014. The father’s Application for Contravention was adjourned to enable the mother to file and serve evidence upon which she wished to rely in respect of reasonable excuse.
On 19 February 2016 the hearing in relation to the mother’s reasonable excuse concluded shortly before 5pm. I made an order dismissing the father’s Application for Contravention against the mother and reserved reasons. These are those reasons.
In my Reasons for Judgment dated 14 December 2015 at [22] to [29] I set out the following:
22.The father further asserts that on 5 February 2015 at 3.00pm at [J School], the mother breached order 4(b) made 12 June 2014 which is in the following terms:
4. The children [B],…

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 FEGLEY & SALWAY

Details

AGLC: FEGLEY & SALWAY [2016] FamCA 168
Case: [2016] FamCA 168
Decision Date: 17 March 2016

CaseChat Overview and Summary

In the matter of *FEGLEY & SALWAY*, heard before Watts J, the father alleged that the mother had contravened court orders. The mother, however, contended that she had a reasonable excuse for any alleged contravention, citing the child's medical condition and her lack of understanding of the court's orders.

The central legal issues before the court were whether the mother had contravened the orders as alleged by the father, and if so, whether she possessed a reasonable excuse for such contravention. The court was also required to consider the question of costs, given the father's conduct of the proceedings and his lack of success.

Watts J found that the mother had a reasonable excuse for the alleged contravention, leading to the dismissal of the father's Application for Contravention on the second charge. Consequently, the court ordered that the father pay the mother's costs in respect of the Application for Contravention and the costs of the oral costs application, on a party/party basis, to be agreed or assessed.

Orders

Orders of the court

The father pay to the mother her costs in respect of the Application for Contravention filed by the father on 12 February 2015 on a party/party basis and the costs of the oral costs application made by the mother on 19 February 2016, as agreed or assessed.

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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