HAHNS & HOLGRUM - [2010] FMCAfam 1038

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAHNS & HOLGRUM

[2010] FMCAfam 1038

FAMILY LAW – Children – contravention of Parenting Orders – child aged 14 years living with mother.

PRACTICE & PROCEDURE – Summary dismissal – disposal by summary dismissal – application for summary dismissal of Contravention Application – whether orders or notations – whether Orders enforceable – whether evidence sufficient to establish a case – whether applicant has no reasonable prospect of successfully prosecuting the claim.

Family Law Act 1975, Part VII Division 13A, s.70NEA
Federal Magistrates Court Rules 2001, r.13.10

In the Marriage of Prior [2002] Fam CA327; (2002) 30 Fam LR 72; FLC 93-105
Bigg v Suzi (1998) 22 Fam LR 700; FLC 92-799
Pelerman & Pelerman [2000] Fam CA881; (2000) 26 Fam LR 505; FLC 93-037
Ferrall v Blyton (2000) 27 Fam LR 178; FLC 93-054
Lindon v Commonwealth (No 2) (1996) 136 ALR 251

Applicant:

MS HAHNS

Respondent:

MR HOLGRUM

File Number:

SYC 2510 of 2008

Judgment of:

Scarlett FM

Hearing date:

20 September 2010

Date of Last Submission:

20 September 2010

Delivered at:

Sydney

Delivered on:

29 October 2010

REPRESENTATION

Applicant:

The Applicant appeared in person

Counsel for the Respondent:

Mr Moylan

Solicitors for the Respondent:

Derham Houston

ORDERS

The application by the Respondent for summary dismissal of the application filed by the Applicant on 7 May 2010 is refused.
The name of the Applicant formerly [omitted] is now MS HAHNS.

IT IS NOTED that publication of this judgment under the pseudonym Hahns & Holgrum is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2510 of 2008

MS HAHNS

Applicant

And

MR HOLGRUM

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the Mother of a girl called [X] to deal with the Father for contravention of orders made in this Court on 26^th March 2009. The Father seeks summary dismissal of the application, on the bases that:
a)What is sought to be enforced by the application are not orders of the Court at all, but merely notations by the Court; and
b)Even if the notations are enforceable, the evidence in support of the application does not support a breach.
The Mother also brought another application in respect of two orders. This application was finalised by consent orders involving the Father giving an undertaking to the Court. There is no doubt that the undertaking is enforceable.

Background

The child who is the subject of the Orders made by the Court is a girl called [X] who was born [in] 1996. She is therefore 14 years old. There is no issue that she has a mild intellectual disability with diagnoses of Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and speech and language delays.[1] The Mother has told the Court that the child is 14 years old with the speech of an eight-year old. The child’s behaviour has been described as “challenging”. The Mother’s only support is her current husband.
[1]…

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 HAHNS & HOLGRUM

Details

AGLC: HAHNS & HOLGRUM [2010] FMCAfam 1038
Case: [2010] FMCAfam 1038
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Ms Hahns, brought an application against the respondent, Mr Holgrum, alleging that he contravened parenting orders made by the Court on 26 March 2009. The specific allegations were that Mr Holgrum failed to pay for occupational therapy and speech therapy for their daughter, X, who has special needs. Mr Holgrum applied for summary dismissal of the application, arguing that the orders in question were not enforceable and that the evidence was insufficient to establish a breach.

The court considered the legal issues of whether the orders were enforceable and whether the evidence was sufficient to establish a contravention. The court held that the orders were enforceable despite being referred to as "notations," as they imposed obligations on the parties. The court also found that the evidence was sufficient to establish that Mr Holgrum failed to pay for the occupational therapy and speech therapy, despite Dr P's opinion that X no longer required occupational therapy. The court concluded that the application for summary dismissal should be refused as Ms Hahns had a reasonable prospect of successfully prosecuting the claim.

The court's reasoning was based on the principles of summary dismissal, which require a demonstration that the substantive application cannot possibly succeed. The court found that the orders were enforceable and that the evidence was sufficient to establish a contravention, even though the case was weak. The court also noted that the application for summary dismissal should not be applied lightly in family law proceedings.

The final orders of the court were that the application for summary dismissal by Mr Holgrum was refused, and the contravention application brought by Ms Hahns would proceed to a hearing.

Orders