Harrington and Yardley - [2017] FCCA 617

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRINGTON & YARDLEY

[2017] FCCA 617

Catchwords:
FAMILY LAW – Contravention of parenting order – nature of contravention hearing – reasonable excuse – high conflict family – distress of child aged 2 years and three months at handover – was removal of child reasonably justified – matters to be considered.

Legislation:

Family Law Act 1975, ss.13A; 70NAA(l); 70NAC; 70NAE; 70NAF; 70NBA; 70NCB

Federal Circuit Court Rules, r.25B.04

Cases cited:
Jets & Maker [2010] FamCAFC 55
Kelly & Kobelnek [1998] FamCA 296
Taikato & R (1996) 186 CLR 454
G v G (1981) FLC91-042
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
Jones v Dunkel (1959) 101 CLR 295

Applicant:

MR HARRINGTON

Respondent:

MS YARDLEY

File Number:

ADC 1941 of 2015

Judgment of:

Judge Brown

Hearing date:

16 March 2017

Date of Last Submission:

16 March 2017

Delivered at:

Adelaide

Delivered on:

29 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Roberts

Solicitors for the Applicant:

Andrew Hill & Co

Counsel for the Respondent:

Ms Milen

Solicitors for the Respondent:

Jo-Anne N Milen & Associates

Counsel for the Independent Children's Lawyer:

No appearance

Solicitors for the Independent Children's Lawyer:

No appearance

ORDERS

Counts one and count three of the contravention application filed 20 October 2016 are established but reasonable excuse is made out in each case.
Count two of the contravention application filed 20 October 2016 is dismissed.
Each party file and serve a brief affidavit, of no more than five double spaced pages on or before 24 April 2017, setting out their respective proposals regarding how the orders of 13 September 2016 and as subsequently amended may be facilitated more efficiently particularly how X may be spared from suffering distress in future together with their proposal regarding the issue of make-up time.
No order as to costs in respect of the contravention application.
Further consideration of this matter is adjourned to 9 May 2017 at 11:00am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1941 of 2015

MR HARRINGTON

Applicant

And

MS YARDLEY

Respondent

REASONS FOR JUDGMENT

The parties to these contravention proceedings are Mr Harrington and Ms Yardley. They are the parents of X born (omitted) 2014. Mr Harrington lives in public housing in (omitted). He is a disability support pensioner and part-time (occupation omitted).
The mother lives in (omitted). She identifies as an indigenous person. She has two older children – A aged about 14 and B aged about 11. X currently lives with the mother in (omitted). A lives with his maternal grandmother.
The parties met via Facebook. They were not living together when Ms Yardley fell pregnant with X. They lived together, for a short period of time, in Mr Harrington’s home at (omitted) when X was…

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 Harrington and Yardley

Details

AGLC: Harrington and Yardley [2017] FCCA 617
Case: [2017] FCCA 617
Decision Date: 29 March 2017

CaseChat Overview and Summary

In a contravention application before Judge Brown, the dispute concerned alleged breaches of orders previously made on 13 September 2016. The applicants, Harrington and Yardley, sought to establish contraventions by the respondent.

The court was required to determine whether counts one and three of the contravention application were established, and if so, whether a reasonable excuse had been made out by the respondent. Additionally, the court had to consider count two of the contravention application and determine its outcome.

Judge Brown found that counts one and three of the contravention application were established, but importantly, that the respondent had made out a reasonable excuse in each of those instances. Count two of the application was dismissed. The court then directed each party to file an affidavit proposing how the existing orders could be facilitated more efficiently, with a particular focus on sparing an individual referred to as 'X' from future distress, and also to provide proposals regarding make-up time. No order was made as to costs for the contravention application, and further consideration of the matter was adjourned.

Orders

Orders of the court

Counts one and count three of the contravention application filed 20 October 2016 are established but reasonable excuse is made out in each case.

Count two of the contravention application filed 20 October 2016 is dismissed.

Each party file and serve a brief affidavit, of no more than five double spaced pages on or before 24 April 2017, setting out their respective proposals regarding how the orders of 13 September 2016 and as subsequently amended may be facilitated more efficiently particularly how X may be spared from suffering distress in future together with their proposal regarding the issue of make-up time.

No order as to costs in respect of the contravention application.

Further consideration of this matter is adjourned to 9 May 2017 at 11:00am.

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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