Ford & Diaz

[2023] FedCFamC2F 492

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ford & Diaz [2023] FedCFamC2F 492  

File number(s):

MLC 2858 of 2022

Judgment of:

JUDGE PARKER

Date of judgment:

1 May 2023

Catchwords:

FAMILY LAW – CONTRAVENTION – knowledge of existence of orders – reasonable excuse  

Legislation:

 Evidence Act 1995 (Cth) s140

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NEB, 70NEC, 70NF

Cases cited:

 Jets & Maker[2010] FamCAFC 55

Keehan & Keehan [2019] FamCAFC 250

McClintock & Levier [2009] FamCAFC 62; (2009) FLC ¶93-401

Division:

Division 2 Family Law

Number of paragraphs:

30

Date of last submission/s:

28 April 2023

Date of hearing:

28 April 2023

Place:

Adelaide via MS Teams

Counsel for the Applicant:

Self-Represented

Counsel for the Respondent:

Self Represented

ORDERS

MLC 2858 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR FORD

Applicant

AND:

MS DIAZ

Respondent

ORDER MADE BY:	JUDGE PARKER
DATE OF ORDER:	1 MAY 2023

UPON NOTING THAT:

A.The Court finds that the Mother has contravened the orders of 12 April 2022 on five occasions as alleged by the Father in his Contravention Application filed on 12 October 2022.

THE COURT ORDERS THAT:

1.All extant applications are 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE PARKER

INTRODUCTION

1. The Applicant Father, MR FORD (‘the Father’) and the Respondent Mother, MS DIAZ (‘the Mother’) are the parents of the child X born in 2016 (‘the child’), who is presently aged 6.

2. Final parenting orders (‘the orders’) were made by consent on 12 April 2022. The orders provide, in summary, that the parties have equal shared parental responsibility for the child, that he live with the Mother, and that he spend defined time with the Father.

3. The application presently before the Court is a Contravention Application filed by the Father on 12 October 2022, alleging five contraventions of the orders. Both parties represented themselves at the hearing of the application. The Father relied upon an affidavit filed on 12 October 2022. Both parties gave oral evidence and were cross-examined by the other.

   THE LAW

4. The meaning of ‘contravened’ is set out in s 70NAC of the Family Law Act 1975 (Cth) (‘the Act’) as follows:

   70NAC [Meaning…