FRANNER & HARKNESS (No.2) - [2020] FCCA 1500

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRANNER & HARKNESS (No.2)

[2020] FCCA 1500

Catchwords:
FAMILY LAW – Contravention – reasonable excuse.

Legislation:

Family Law Act 1975 (Cth), ss.79AE

Cases cited:

TVT & TLM [2005] FMCAfam20 @ [33]

Conry & Conry [2006] FMCAfam554 @ [34]

O’Brien & O'Brien (1993) FLC 92-396 @ [8], [11] &[13]

Stevenson v Hughes (1993) FLC 92-363

Applicant:

MR FRANNER

Respondent:

MS HARKNESS

File Number:

LNC 288 of 2019

Judgment of:

Judge McGuire

Hearing date:

4 June 2020

Date of Last Submission:

4 June 2020

Delivered at:

Launceston

Delivered on:

23 June 2020

REPRESENTATION

Counsel for the Applicant:

Mr M Verney

Solicitors for the Applicant:

Rae & Partners (Devonport)

Counsel for the Respondent:

Mr P Sullivan

Solicitors for the Respondent:

Paul Sullivan Lawyer

ORDERS

That Court finds that the mother has breached the relevant Court orders on two counts as set out in the Contravention application being on 9 April 2020 and 7 May 2020.

IT IS NOTED that publication of this judgment under the pseudonym Franner & Harkness (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 288 of 2019

MR FRANNER

Applicant

And

MS HARKNESS

Respondent

REASONS FOR JUDGMENT

Applications

The father is the applicant in a Contravention application filed 19 May 2020. He alleges two counts of contravention of final parenting orders dated 27 March 2020 made after a defended hearing. The particulars are as follows:
(a)Contrary to order 3(b) of the said orders that on 9 April 2020 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the child, X born in 2007 by failing to provide the child to the Applicant;
(b)That contrary to order 3(a) of the said orders that on 7 May 2020 the Respondent without reasonable excuse refused to allow the Applicant to spend time with the children, X born in 2007 and Y born in 2005 by failing to provide the children to the Applicant.
The relevant orders provide in respect of count one that the child X was to spend time with the father for one half of each Tasmanian gazetted school holidays. No issue was taken that the 9 April 2020 represented the commencement of time during school holidays.
Order 3(a) of the said orders provides for time for the children with the father each second weekend from the conclusion of school on Thursday (or 4.00 p.m. if not a school day) until the commencement of school on the following Monday (or 9.00 a.m. if not a school day).
Both parties were represented at the hearing before me.
Pleas of guilty but with a reasonable excuse were entered through Counsel on behalf of the respondent mother in respect of both counts.
Both parties provided affidavits, gave evidence and were cross-examined. Neither party adduced further evidence.

Relevant Law

By reason of the respondent admitting the particulars of each count of the application, the onus falls on her to show a…

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 FRANNER & HARKNESS (No.2)

Details

AGLC: FRANNER & HARKNESS (No.2) [2020] FCCA 1500
Case: [2020] FCCA 1500
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the matter of *Franner & Harkness (No.2)*, Judge McGuire considered a contravention application brought by the father against the mother concerning alleged breaches of court orders. The dispute centred on the mother's alleged failure to comply with specific orders made by the Court.

The primary legal issue before the Court was whether the mother had contravened the relevant court orders on the dates specified in the application, and if so, whether she had a reasonable excuse for such contraventions.

Judge McGuire found that the mother had indeed breached the court orders on two occasions: 9 April 2020 and 7 May 2020. The judgment indicates that the Court was satisfied that these breaches occurred as alleged in the contravention application. The Court's orders reflect this finding of contravention.

Orders

Orders of the court

That Court finds that the mother has breached the relevant Court orders on two counts as set out in the Contravention application being on 9 April 2020 and 7 May 2020.

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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