HAYES & STAPLETON - [2014] FCCA 1692

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYES & STAPLETON

[2014] FCCA 1692

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – application – allegations of 31 separate contraventions of orders – where there is a case to answer – whether there is evidence to support each allegation – whether a fact sheet in conformance with Family Law Act 1975 (Cth) s.65DA(2) can be enforced as a parenting order – whether allegations of contravention void for duplicity.

EVIDENCE – Admissibility of evidence – hearsay – representation made by a child.

Legislation:

Family Law Act 1975 (Cth), ss.65DA, 69ZV, 70NAC, 70NAF

Federal Circuit Court Rules 2001, r.25B.04

Cases cited:
Dunne v P [2004] WASC 239
In the Matter of the L-W Children [201] EWCA Civ 1253

Applicant:

MR HAYES

Respondent:

MS STAPLETON

File Number:

SYC 2750 of 2007

Judgment of:

Judge Scarlett

Hearing date:

24 June 2014

Date of Last Submission:

30 July 2014

Delivered at:

Sydney

Delivered on:

30 July 2014

REPRESENTATION

The Applicant:

In person

Solicitor for the Respondent:

Ms Swan

Solicitors for the Respondent:

KWS Legal

ORDERS

Counts 3, 4, 5, 6, 7, 8, 11, 13, 14, 16, 19, 20, 23, 24 and 25 contained in Application 1 filed on 13 February 2014 are dismissed.
Counts 1 and 2 of the Application A2 filed on 13 February 2014 are dismissed as incompetent.
The Applications are adjourned to Tuesday 2 December 2014 for further hearing at 10:00 am.
The Respondent is to file and serve an affidavit stating the facts upon which she seeks to rely by Friday 12 September 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2750 of 2007

MR HAYES

Applicant

And

MS STAPLETON

Respondent

REASONS FOR JUDGMENT

Application

This is an Application, or rather, there are four Applications, for the Respondent Mother to be dealt with for contravention of parenting Orders made by Moore J in the Family Court of Australia on 25 May 2009. There are, in the four Applications, 31 different counts alleging contraventions of the Orders over a period of time between 24 November 2012 and 2 March 2014.
The Applicant has sought to proceed with all 31 of these counts. He has given evidence and has been cross-examined.
The Respondent’s solicitor, Ms Swan, has submitted that some of the allegations have not been made out and that the matter should proceed as an Application to vary the earlier Orders, based on an Application and an affidavit she filed on the morning of the hearing. I did not grant that Application, holding that the Contravention Application should proceed to a determination in the way prescribed by the Rules.
Ms Swan has also submitted there are 3 categories of matters that need to be considered when the Court is deciding whether the Applicant has made out a prima facie case.
First, where the evidence shows…

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 HAYES & STAPLETON

Details

AGLC: Hayes and Stapleton [2014] FCCA 1692
Case: [2014] FCCA 1692
Decision Date: 30 July 2014

CaseChat Overview and Summary

In *Hayes & Stapleton*, Judge Scarlett of the Family Court of Australia considered an application alleging 31 separate contraventions of parenting orders. The primary dispute concerned whether there was sufficient evidence to establish a case to answer for each alleged contravention, and whether certain documents could be enforced as parenting orders.

The court was required to determine several key legal issues. These included whether the respondent had a case to answer in relation to each of the 31 alleged contraventions, the evidentiary sufficiency for each allegation, and the enforceability of a fact sheet as a parenting order under section 65DA(2) of the *Family Law Act 1975* (Cth). Additionally, the court considered whether allegations of contravention were void for duplicity and the admissibility of hearsay evidence, specifically representations made by a child.

Judge Scarlett's reasoning involved a detailed examination of the evidence presented for each alleged contravention. The court applied principles relating to the standard of proof required to establish a contravention and the requirements for a valid parenting order. The decision also addressed the specific evidentiary rules concerning hearsay in the context of child representations.

As a result of the determination, Counts 3, 4, 5, 6, 7, 8, 11, 13, 14, 16, 19, 20, 23, 24 and 25 of Application 1 were dismissed. Counts 1 and 2 of Application A2 were also dismissed as incompetent. The applications were adjourned for further hearing, with directions for the respondent to file and serve an affidavit outlining the facts upon which she sought to rely.

Orders

Orders of the court

Counts 3, 4, 5, 6, 7, 8, 11, 13, 14, 16, 19, 20, 23, 24 and 25 contained in Application 1 filed on 13 February 2014 are dismissed.

Counts 1 and 2 of the Application A2 filed on 13 February 2014 are dismissed as incompetent.

The Applications are adjourned to Tuesday 2 December 2014 for further hearing at 10:00 am.

The Respondent is to file and serve an affidavit stating the facts upon which she seeks to rely by Friday 12 September 2014.

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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