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 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
The contravention applications filed on 12 November 2010 and 20 May 2011 be dismissed.
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.
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.
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
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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- AGLC
- Hale & Hale [2011] FMCAfam 1107
- Case
- [2011] FMCAfam 1107
- Decision Date
CaseChat Overview and Summary
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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