Irvin & Carr - [2007] FamCA 492

FAMILY COURT OF AUSTRALIA

IRVIN & CARR

[2007] FamCA 492

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CONTRAVENTION OF PARENTING ORDERS – Orders in place that the child live with the mother and have weekly contact with the father with changeovers to take place on the Sunshine Coast; and that the parties refrain from making derogatory comments about each other in the presence of the child – The father alleged that the mother had committed eight contraventions of these orders – Jarrett FM found five contraventions proved, four counts having been admitted by the mother’s solicitor on her behalf – Jarrett FM ordered that the mother enter into a bond by way of sanction and varied the parenting orders with the ultimate effect that the child lived with the father and had weekly contact with the mother – The mother appealed these orders on the grounds that she had been denied procedural fairness at the contravention proceedings and that the varied parenting orders had not been sought by either party at those proceedings – Appeal dismissed on both grounds – Mother also appealed against an order that she pay the father’s costs of and incidental to the contravention application – No merit in this appeal.

FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE - Mother sought to adduce further evidence in support of the appeals – Court not satisfied this was appropriate having regard to the principles in CDJ v VAJ – Application dismissed.

FAMILY LAW - COSTS – Order that the mother pay the father’s costs with respect to the appeal – Order that the mother pay the father’s costs of an earlier hearing of the appeal that was not able to proceed.

Family Law Act 1975 (Cth)

Sandler & Kerrington [2007] FamCA 479
CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Ms Irvin

RESPONDENT:

Mr Carr

FILE NUMBER:	BRM 7450 of 2005
FIRST APPEAL NUMBER:	NA 74 of 2006
SECOND APPEAL NUMBER:	NA 91 of 2006

DATE DELIVERED:

29 May 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Finn, Warnick & Boland JJ

HEARING DATE:

14 May 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

28 June 2006

29 September 2006

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Vickers (solicitor)

SOLICITOR FOR THE APPELLANT:

Hungerford Lehmann & Andrews

COUNSEL FOR THE RESPONDENT:

Mr Coulsen

SOLICITOR FOR THE RESPONDENT:

SJB Law

Orders

That the appeal against Order 5 of the orders made on 28 June 2006 be dismissed.
That the appeal against the orders of 29 September 2006 be dismissed.
That the mother’s application to adduce further evidence be dismissed.
That the mother pay the father’s costs of and incidental to both appeals (including the reserved costs of the hearing of the appeals by the Full Court on 1 March 2007 which was not able to proceed) with such costs to be assessed in default of agreement.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered…

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 Irvin & Carr

Details

AGLC: Irvin & Carr [2007] FamCA 492
Case: [2007] FamCA 492
Decision Date: 29 May 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal by a mother against orders made by a Federal Magistrate concerning contraventions of parenting orders and subsequent variations to those orders. The father had alleged eight contraventions by the mother, including breaches of orders regarding the child’s living arrangements, contact, changeovers, and refraining from derogatory comments. The Federal Magistrate found five contraventions proved, imposed a bond as a sanction, and varied the parenting orders to provide for the child to live with the father and have weekly contact with the mother.

The mother’s appeal raised two primary legal issues: whether she had been denied procedural fairness during the contravention proceedings, and whether the varied parenting orders had been sought by either party. Additionally, the mother appealed an order requiring her to pay the father’s costs of the contravention application. The court was also required to consider the mother’s application to adduce further evidence in support of her appeals.

The Full Court dismissed the mother’s appeal on both grounds concerning procedural fairness and the variation of parenting orders, finding no merit in these arguments. The court also dismissed the appeal against the costs order relating to the contravention application. Applying the principles established in *CDJ v VAJ*, the court refused the mother’s application to adduce further evidence, deeming it inappropriate. Consequently, the court ordered that the mother pay the father’s costs of and incidental to both appeals, including the reserved costs of a prior hearing that could not proceed.

Orders

Orders of the court

That the appeal against Order 5 of the orders made on 28 June 2006 be dismissed.

That the appeal against the orders of 29 September 2006 be dismissed.

That the mother’s application to adduce further evidence be dismissed.

That the mother pay the father’s costs of and incidental to both appeals (including the reserved costs of the hearing of the appeals by the Full Court on 1 March 2007 which was not able to proceed) with such costs to be assessed in default of agreement.

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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