Harksen & Heazlewood - [2022] FedCFamC2F 360

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harksen & Heazlewood [2022] FedCFamC2F 360

File number(s): PAC 745 of 2015

Judgment of: JUDGE NEWBRUN

Date of judgment: 25 March 2022

Catchwords: FAMILY LAW – Contravention hearing - Contravention Application by Father dismissed.

Legislation: Family Law Act 1975 (Cth), ss 70NAC, 70NAE, 70NAF, 70NEB, 70NECA, 70NFB, 70NFF.

Division: Division 2 Family Law

Number of paragraphs: 70

Date of last submission/s: 3 March 2022

Date of hearing: 25 February 2022, 3 March 2022

Place: Parramatta

Appearing for the Applicant: Mr Jurd

Solicitor for the Applicant: Peter Jurd Lawyer

Appearing for the Respondent: Mr Ly

Solicitor for the Respondent: Mj Woods & Co

Counsel for the Independent Children’s Lawyer: Mr Cairns

Solicitor for the Independent Children’s Lawyer: Harb Lawyers
ORDERS

PAC 745 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HARKSEN

Applicant

AND:
MR HEAZLEWOOD

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

25 MARCH 2022

THE COURT ORDERS THAT:
1.The Father’s Amended Contravention Application filed 8 June 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Harksen & Heazlewood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This is the determination of the Father’s Amended Contravention Application filed 8 June 2021 brought against the Mother. The Mother denies each of the 26 alleged contraventions spanning the period from 12 December 2020 to 5 June 2021. Each alleged contravention date in that period is a Saturday when the child was due to spend time with the Father from 10am to 5pm pursuant to previous Orders of the Court.
The subject child is X born in 2013.
The Amended Contravention Application was heard by the Court on 25 February 2022 and 3 March 2022.
The Father relied upon his Amended Application Contravention filed 8 June 2021, his supporting Affidavit filed 9 December 2021, and his Outline of Submissions document dated 24 February 2022. He relies upon his oral evidence, and the below exhibits.
The Mother relies upon her oral evidence, her Affidavit filed in Court on 3 March 2022, and the below exhibits.
The following exhibits became evidence:
(a)Exhibit A: Affidavit of Father filed 2 December 2020;
(b)Exhibit B: black-and-white photographs of child in car on 11 December…

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.

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Details

AGLC: Harksen & Heazlewood [2022] FedCFamC2F 360
Case: [2022] FedCFamC2F 360
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the Father filed an Amended Contravention Application against the Mother, seeking a determination that the Mother contravened several court orders regarding the visitation of their child, X. The Mother denied all allegations of contravention. The court had to decide whether the Mother had a reasonable excuse for not facilitating the child's time with the Father. The court analyzed the evidence and found that the Mother's actions were consistent with her understanding of the court orders. The court also considered the child's emotional distress and opposition to spending time with the Father, which led the Mother to believe that it was necessary to protect the child's health and safety. As a result, the court found that the Mother had a reasonable excuse for not facilitating the child's time with the Father, and dismissed the Father's Amended Contravention Application.

Orders