Hale & Hale

Case [2011] FMCAfam 1107


FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALE & HALE [2011] FMCAfam 1107
FAMILY LAW – Contravention of children’s orders – order for equal shared parental responsibility – father alleges mother has failed to provide information in respect of the children and has breached such order – other contraventions relating to failure of children to be delivered to spend holiday time with father – reasonable excuse – standard of proof.
Family Law Act 1975 (Cth), ss.4, 60CC, 65DAC, 65DAE, 70NAA, 70NAC, 70NAE, 70NAF, 70NBA, 70NCB
Evidence Act 1995 (Cth), s.97
Ligertwood & Edmond Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts 5th Edition 2010

Hale & Hale (No.2) [2009] FMCAfam 873
Jets & Maker [2010] FamCAFC 55
Kelly & Kobelnek [1998] FamCA 296
Taikato & R (1996) 186 CLR 454
Davis & Davis (1976) FLC 90-050
Sahari & Sahari (1976) FLC 90-086
Attreed & Attreed (1980) FLC 90-907
Stevenson v Hughes (1993) FLC 92,393
Vlug v Poulos (1997) FLC 92-778

Oxley & Inglis [2007] FamCA 1606

Applicant: MR HALE
Respondent: MS HALE
File Number: ADC 3419 of 2007
Judgment of: Brown FM
Hearing dates: 31 May & 12 September 2011
Date of Last Submission: 12 September 2011
Delivered at: Adelaide
Delivered on: 27 October 2011

REPRESENTATION

Counsel for the Applicant: Ms Lewis
Solicitors for the Applicant: Lessli Strong & Associates
Counsel for the Respondent: Mr Kane
Solicitors for the Respondent: Elringtons

ORDERS

  1. The contravention applications filed on 12 November 2010 and 20 May 2011 be dismissed.

  2. In the event that the mother wishes to make an application for costs in respect of the dismissal of the contraventions applications herein she is directed to do so and file an affidavit in support setting out the quantum of the costs which she seeks together with any other relevant matters within twenty eight days of today’s date.

  3. In the event either party wishes to make an application to change aspects of the final orders made on 21 August 2009 dealing specifically with mechanisms to ensure the subject children attend at [D] to spend time with the father as previously ordered and as to how information concerning the subject children’s education and health requirements may be efficiently disseminated between the parties they are directed to so within twenty eight days of the date of these orders together with an affidavit setting out all matters relevant to such application.

  4. Paragraphs 8, 9, 10, 11, 12 and 13 of the orders made on 21 August 2009 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3419 of 2007

MR HALE

Applicant

And

MS HALE

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The parties to these contravention proceedings are Mr Hale “the father” and Ms Hale “the mother”.  They are the parents of three children, [X] born [in] 1996 and twins, [Y] and [Z] born [in] 1999.[1]

    [1]…

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Details
AGLC
Hale & Hale [2011] FMCAfam 1107
Case
[2011] FMCAfam 1107
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, presided over by Justice Mortimer, dealt with applications filed by the mother in relation to alleged contraventions of prior orders made by the court. The applications were in the context of a parenting dispute between the parents of two children, [D] and [E]. The mother claimed that the father had contravened court orders by failing to allow the children to spend time with him and by not providing educational and health information. The court was required to determine whether the father had indeed breached the orders and, if so, what consequences should follow.

The legal issues before the court included whether the father had failed to comply with the terms of the prior orders and, if so, whether the mother's applications for contraventions were justified. The court had to consider the evidence presented by both parties and assess the credibility of the witnesses, including expert evidence. Furthermore, the court needed to decide whether the mother's applications for contraventions were frivolous or vexatious, and whether any costs should be awarded against her.

In its judgment, the court found that the father had not contravened the orders. The mother's claims were not substantiated by the evidence, and the court concluded that her applications were vexatious. As a result, the contravention applications were dismissed, and the court directed the mother to file an affidavit within 28 days if she wished to seek costs in relation to the dismissal. The court also noted that any future applications to change aspects of the prior orders should be made within 28 days, with appropriate supporting affidavits. Finally, the court dismissed specific paragraphs of the prior orders that related to the contraventions applications.

Orders

Orders of the court

1.

The contravention applications filed on 12 November 2010 and 20 May 2011 be dismissed.

2.

In the event that the mother wishes to make an application for costs in respect of the dismissal of the contraventions applications herein she is directed to do so and file an affidavit in support setting out the quantum of the costs which she seeks together with any other relevant matters within twenty eight days of today’s date.

3.

In the event either party wishes to make an application to change aspects of the final orders made on 21 August 2009 dealing specifically with mechanisms to ensure the subject children attend at [D] to spend time with the father as previously ordered and as to how information concerning the subject children’s education and health requirements may be efficiently disseminated between the parties they are directed to so within twenty eight days of the date of these orders together with an affidavit setting out all matters relevant to such application.

4.

Paragraphs 8, 9, 10, 11, 12 and 13 of the orders made on 21 August 2009 be dismissed.

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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