Harry & Harry (No 3) - [2023] FedCFamC2F 553

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harry & Harry (No 3) [2023] FedCFamC2F 553

File number(s): MLC 12354 of 2021

Judgment of: JUDGE GLASS

Date of judgment: 11 April 2023

Catchwords: FAMILY LAW – PARENTING – ENFORCEMENT - whether the mother made the child available to spend time with the father– whether a self-executing order has been triggered– enforcement application dismissed.
FAMILY LAW – COSTS – where the mother has been wholly unsuccessful – where an order for costs has been made pursuant to Court’s scale of costs.

Legislation:
Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Sch 1

Cases cited:
Bant & Clayton (Costs) (2016) 56 Fam LR 31

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

D & D (Costs) No 2 (2010) FLC 93-435

Davis & Peterson (2023) FLC 94-130

Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341

Goldsmith & Stinson (No 2) [2023] FedCFamC1A 25

Stavros & Stavros (1984) FLC 91-562

Stevenson v Hughes (1993) FLC 92-363

Division: Division 2 Family Law

Number of paragraphs: 28

Date of last submission/s: 11 April 2023

Date of hearing: 11 April 2023

Place: Melbourne

Counsel for the Applicant: Ms Smallwood SC

Solicitor for the Applicant: Pearsons Lawyers Pty Ltd

Counsel for the Respondent: Ms Mallet SC

Solicitor for the Respondent: Broun Abrahams Burreket
ORDERS

MLC 12354 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HARRY

Applicant

AND:
MS HARRY

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

11 APRIL 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Respondent on 29 March 2023 is dismissed.
2.The Respondent pay the Applicant’s costs fixed in the sum of $2,946 upon execution of final property settlement Orders of this Court.

THE COURT NOTES THAT:
A.s102NA of the Family Law Act 1975 (Cth) applies to this matter pursuant to Orders dated 4 November 2022.

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 (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 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 Harry & Harry (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:

These are the settled reasons for a judgment delivered ex tempore on 11 April 2022. Infelicities of expression have been corrected and…

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 Harry & Harry (No 3)

Details

AGLC: Harry & Harry (No 3) [2023] FedCFamC2F 553
Case: [2023] FedCFamC2F 553
Decision Date: 11 April 2023

CaseChat Overview and Summary

This case involved a dispute between the parties regarding the enforcement of parenting arrangements. The father, the applicant, filed an application for enforcement against the mother, the respondent, alleging that she had failed to make the child available to him for time spent as per the orders of the court. The matter was heard in the Family Court of Australia. The central issue before the court was whether the mother had failed to make the child available to the father and if so, whether this constituted a breach of a self-executing order, triggering enforcement action. The court also had to consider the costs incurred by the parties in light of the mother's unsuccessful application.

The court found that the mother had not made the child available to the father for the specified time. However, it determined that the failure to make the child available did not amount to a breach of a self-executing order. The court reasoned that the mother's actions did not constitute a deliberate or willful refusal to comply with the orders. As such, the court concluded that the enforcement application should be dismissed. The court also noted that the mother had been wholly unsuccessful in her application and ordered her to pay the father's costs, fixed in the sum of $2,946, upon the execution of final property settlement orders. This amount was determined in accordance with the court's scale of costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by the Respondent on 29 March 2023 is dismissed.

2. The Respondent pay the Applicant’s costs fixed in the sum of $2,946 upon execution of final property settlement Orders of this Court.

THE COURT NOTES THAT:

A. s102NA of the Family Law Act 1975 (Cth) applies to this matter pursuant to Orders dated 4 November 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC 12354 of 2021
Judgment of:	JUDGE GLASS
Date of judgment:	11 April 2023
Catchwords:	FAMILY LAW – PARENTING – ENFORCEMENT - whether the mother made the child available to spend time with the father– whether a self-executing order has been triggered– enforcement application dismissed. FAMILY LAW – COSTS – where the mother has been wholly unsuccessful – where an order for costs has been made pursuant to Court’s scale of costs.
Legislation:	Family Law Act 1975 (Cth) s 117 Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 Sch 1
Cases cited:	Bant & Clayton (Costs) (2016) 56 Fam LR 31 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 D & D (Costs) No 2 (2010) FLC 93-435 Davis & Peterson (2023) FLC 94-130 Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341 Goldsmith & Stinson (No 2) [2023] FedCFamC1A 25 Stavros & Stavros (1984) FLC 91-562 Stevenson v Hughes (1993) FLC 92-363
Division:	Division 2 Family Law
Number of paragraphs:	28
Date of last submission/s:	11 April 2023
Date of hearing:	11 April 2023
Place:	Melbourne
Counsel for the Applicant:	Ms Smallwood SC
Solicitor for the Applicant:	Pearsons Lawyers Pty Ltd
Counsel for the Respondent:	Ms Mallet SC
Solicitor for the Respondent:	Broun Abrahams Burreket

MLC 12354 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HARRY Applicant
AND:	MS HARRY Respondent

order made by:	JUDGE GLASS
DATE OF ORDER:	11 APRIL 2023