Gravis & Major

Case [2010] FamCAFC 239

FAMILY COURT OF AUSTRALIA

GRAVIS & MAJOR [2010] FamCAFC 239

FAMILY LAW - APPEAL – CONTRAVENTION – whether a remark made by the Federal Magistrate during proceedings indicated prejudgment of one of the alleged contraventions – remark to be considered in context – no error established

FAMILY LAW - CONTRAVENTION – reasonable excuse – where the mother claimed the father had agreed to change contract arrangements – whether the Federal Magistrate placed excessive weight on the absence of written agreement – where the father had conceded he had agreed to change contact arrangements in relation to one of the alleged contraventions without written confirmation – the Federal Magistrate had erroneously taken into account the absence of written agreement when finding some of the alleged contraventions proven – appellable error

FAMILY LAW - CONTRAVENTION – Adequacy of reasons – relating to the Federal Magistrate’s finding the contraventions were “more serious” contraventions under section 70NAA(3)(c) – where the Federal Magistrate dealt with the contraventions on a global basis – the Federal Magistrate did not adequately consider the individual breaches – the Federal Magistrate did not properly consider the overall circumstances in which the breaches occurred – the finding that the contraventions were “more serious” was not open to the Federal Magistrate – appellable error

FAMILY LAW – APPEAL - Appeal allowed – order of the Federal Magistrate set aside – costs certificates granted
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act1981(Cth)
Abduramanoski and Abduramanoska (2005) FLC 93-215
CSR Ltd v Della Maddalena (2006) 224 ALR 1
De Winter and De Winter (1979) FLC 90-605
Fox v Percy (2003) 214 CLR 118
Galea v Galea (1990) 19 NSWLR 263
Kirkv Industrial Relations Commission of New South Wales (2010) 239 CLR 531
McClintock & Levier (2009) FLC 93-401
Pearce v The Queen (1998) 194 CLR 610
APPELLANT: Ms Gravis
RESPONDENT: Mr Major
FILE NUMBER: PAC 2874 of 2008
APPEAL NUMBER: EA 56 of 2009
DATE DELIVERED:

1 December 2010

PLACE DELIVERED: Perth
PLACE HEARD: Sydney
JUDGMENT OF: Boland, Thackray & O'Ryan JJ
HEARING DATE: 21 May 2010
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 8 April 2009
LOWER COURT MNC: [2009] FMCAfam 263

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Livingstone
SOLICITOR FOR THE APPELLANT: McQiu Lawyers
COUNSEL FOR THE RESPONDENT: Ms Judge
SOLICITOR FOR THE RESPONDENT: Webb Thom & Associates

Orders

  1. The appeal is allowed.

  2. Order 2 of the orders of Federal Magistrate Dunkley made 8 April 2009 be set aside.

  3. The parties shall on or before 6 December 2010 notify the Appeal Registrar whether they wish to make submissions to the Full Court as to whether the Full Court can redetermine the question of costs before the Federal Magistrate.

  4. The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to…

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AGLC
Gravis & Major [2010] FamCAFC 239
Case
[2010] FamCAFC 239
Decision Date

CaseChat Overview and Summary

The appeal was brought by the mother, Gravis, against the father, Major, in the context of family law disputes concerning alleged contraventions of a parenting order. The case was heard in the Family Court of Australia. The mother contested several contraventions of a parenting order that the Federal Magistrate had found proven against her. She appealed the decision, arguing that the Federal Magistrate had erred in several respects, including prejudgment, the weight placed on the absence of written agreements, and the characterisation of the contraventions as "more serious."

The legal issues before the court were whether the Federal Magistrate's remark during the proceedings indicated prejudgment, whether the absence of written agreements was properly considered, and whether the contraventions were correctly classified as "more serious." The mother argued that the Federal Magistrate had prejudged one of the alleged contraventions and had placed excessive weight on the lack of written confirmation of an agreement. She further contended that the Federal Magistrate had failed to consider the individual contraventions adequately and had not properly assessed the overall circumstances in which the breaches occurred. The classification of the contraventions as "more serious" was also contested on the grounds that it was not supported by the evidence.

The court found that the Federal Magistrate's remark should be considered in its context and did not indicate prejudgment. However, the court held that the Federal Magistrate had erred in taking into account the absence of a written agreement when finding some of the alleged contraventions proven, as the father had conceded to the changes without requiring written confirmation. Additionally, the court determined that the Federal Magistrate had not adequately considered the individual breaches and the overall circumstances of each contravention. The classification of the contraventions as "more serious" was also found to be unsupported by the evidence, leading to the conclusion that the Federal Magistrate had made an error in law.

The appeal was allowed, and the order of the Federal Magistrate was set aside. The parties were directed to notify the Appeal Registrar by a specified date if they wished to make submissions to the Full Court regarding the redetermination of costs before the Federal Magistrate. Costs certificates were granted to both parties under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

1.

The appeal is allowed.

2.

Order 2 of the orders of Federal Magistrate Dunkley made 8 April 2009 be set aside.

3.

The parties shall on or before 6 December 2010 notify the Appeal Registrar whether they wish to make submissions to the Full Court as to whether the Full Court can redetermine the question of costs before the Federal Magistrate.

4.

The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

5.

The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

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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