Jordan and Jordan (No 2) - [2010] FamCA 341

FAMILY COURT OF AUSTRALIA

JORDAN & JORDAN (NO. 2)

[2010] FamCA 341

FAMILY LAW – CONTEMPT – Contravention of Court order – Prima facie case – hearsay evidence of children

Family Law Act 1975 (Cth) Division 13A Pt VII, ss 69ZM(1), 69ZV, 69ZV(2), 70NAA(1), 70NAF(1), 70NAF(3), 112AD
Evidence Act 1995 (Cth) s 140(1)

Sahari and Sahari (1976) FLC 90-086
Re Bramblevale, Ltd (1969) 3 All E.R. 1062
Lindsey and Lindsey (1995) FLC 92-638

The Commissioner for Water Resources v Federated Engine Drivers’ and Firemen’s Association of Australasia Queensland Branch and Ors (1988) 2 Qd R 385
Witham v Holloway (1995) 131 ALR 401
Dobbs & Brayson (2007) FLC 93-346

APPLICANT:

Ms Jordan

RESPONDENT:

Mr Jordan

FILE NUMBER:

NCC

1497

2007

DATE DELIVERED:

14 April 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

Johnston JR

HEARING DATE:

7 December 2009

REPRESENTATION

FOR THE APPLICANT:

Ms Jordan, mother in person

COUNSEL FOR THE RESPONDENT:

Mr Hamilton

SOLICITOR FOR THE RESPONDENT:

Kim Monnox & Associates

Orders

That both parties have leave to request the re-listing of these proceedings for further hearing by arrangement with my Associate.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1497 of 2007

MS JORDAN

Applicant

And

MR JORDAN

Respondent

REASONS FOR JUDGMENT

Introduction and Application

These are contravention proceedings. The parties in the proceedings are Ms Jordan and Mr Jordan. For convenience I shall refer to them as “the mother” and “the father” respectively.
The mother filed a Contravention Application on 11 June 2009. The matter was listed for return on 6 July 2009. On that occasion it came before me. I ordered that it be adjourned to 1 September 2009. I also made orders that any further affidavit be filed and served by the mother not later than 21 August 2009. On 1 September 2009 the mother informed the Court that she was unwell and had been advised that she needed to attend hospital. In those circumstances I adjourned the proceedings to 7 December 2009.
In her Contravention Application the mother alleges that the father has breached current parenting orders. In her Application she specified the date of the breach as being 22 May 2009 at approximately 6:00 pm. Her particularisation of the alleged contravention was as follows:
“[The father] did not stay overnight at the paternal grandparents home.”
The mother filed an affidavit affirmed by her on 3 June 2009 in support of her application as well as affidavits affirmed on 5 August 2009 by each of her parents.
The first relevant order was paragraph 2 of the orders made on 20 March 2009. This provides as follows:
That the father is to spend time with the children each alternate weekend from 4:30 pm Friday to 4:30 pm Saturday commencing on Friday 27 March 2009.
The other relevant order is paragraph 4 of the orders made…

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.

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Details

Case: [2010] FamCA 341
Decision Date: 14 April 2010

CaseChat Overview and Summary

The proceedings in *Jordan and Jordan (No 2)* concerned a dispute between two parties, identified as Jordan and Jordan. The specific nature of their dispute is not detailed in the provided text, but the matter came before Johnston JR.

The primary legal issue before the court was the determination of the future course of the proceedings. This involved considering whether the matter should be relisted for a further hearing.

Johnston JR granted both parties leave to request the re-listing of the proceedings for further hearing. This indicates that the court acknowledged the need for continued engagement with the dispute and provided a mechanism for the parties to advance their case. The decision suggests that the proceedings were not definitively concluded but were adjourned pending further action by the parties.

Orders

Orders of the court

That both parties have leave to request the re-listing of these proceedings for further hearing by arrangement with my Associate.

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.