JAMIESON & COTTER - [2017] FamCA 590

FAMILY COURT OF AUSTRALIA

JAMIESON & COTTER

[2017] FamCA 590

FAMILY LAW – CHILDREN – Contravention – six counts of contravention alleged by father against the mother – three counts of contravention dismissed on basis of no case to answer – finding that the mother contravened the final orders for Allegations 1 and 2 by failing to provide make-up time and contravened the final orders for Allegation 6 but that there was a reasonable excuse for the contraventions on the balance of probabilities – contravention application dismissed.

Family Law Act 1975 (Cth), ss 70NAA(3), 70NAC, 70NAE, 70NAF
Family Law Rules 2004 (Cth), r 21.08

APPLICANT:

Mr Jamieson

RESPONDENT:

Ms Cotter

FILE NUMBER:

MLC

3969

2007

DATE DELIVERED:

14 August 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

7 June 2017

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Weerappah

SOLICITOR FOR THE RESPONDENT:

Bayside Solicitors

Orders

The applicant’s Application – Contravention filed 19 April 2017 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamieson & Cotter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3969 of 2007

Mr Jamieson

Applicant

And

Ms Cotter

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application brought by the father alleging contraventions of final parenting orders made by consent on 15 August 2016 before MacMillan J. The contraventions are denied by the mother. D, the child the subject of the orders, is aged 11 years and pursuant to those final orders lives with the mother and spends time with the father.

The allegations

The father’s Application – Contravention filed 19 April 2017 alleged six counts of contravention as follows:
(1)On 20 March 2017 at 12.07pm at [B Street, Suburb C], the Respondant [sic] without reasonable excuse refused to allow me to speak to [D (the child)] after the Respondant [sic] notified me that [the child] was sick with Gastro. I then rung [the child] directly on his phone and it was switched off. I then texted [the child] but did not receive a response. Furthermore the Repondant [sic] did not provide me with a medical certificate and did not detail how as a result of such health issue [the child] was to remain in the Respondants [sic] care instead of spending time with me from the 18^th March until the 21^st March 2017. I have not been provided make up time with [the child] so that [the child] can spend an…

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 JAMIESON & COTTER

Details

AGLC: JAMIESON & COTTER [2017] FamCA 590
Case: [2017] FamCA 590
Decision Date: 14 August 2017

CaseChat Overview and Summary

In the matter of *Jamieson & Cotter*, the applicant father alleged six counts of contravention against the respondent mother concerning final parenting orders. The court, presided over by Thornton J, was required to determine whether the mother had contravened the final orders and, if so, whether she had a reasonable excuse for such contraventions.

The primary legal issues before the court were whether the mother had contravened specific provisions of the final parenting orders relating to make-up time and other arrangements, and if any contraventions were established, whether the mother had demonstrated a reasonable excuse on the balance of probabilities. The court also considered preliminary arguments regarding no case to answer for certain allegations.

Thornton J found that the mother had no case to answer in relation to three of the alleged contraventions. For Allegations 1 and 2, the court found that the mother had contravened the final orders by failing to provide make-up time. However, for Allegation 6, while a contravention was found, the court determined that the mother had established a reasonable excuse on the balance of probabilities. Consequently, the father's contravention application was dismissed.

Orders

Orders of the court

The applicant’s Application – Contravention filed 19 April 2017 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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