KENT & SHAW - [2013] FamCA 38

FAMILY COURT OF AUSTRALIA

KENT & SHAW

[2013] FamCA 38

FAMILY LAW - CHILDREN – contravention – where the father alleges that the mother has contravened an order requiring the mother to provide the father with notice of the child’s progress in school – where the order authorises the father to obtain this information from the child’s school – contravention not established.

FAMILY LAW - CHILDREN – contravention – where the father alleges that the mother has contravened orders requiring the mother and the child to undergo therapy – where the primary order is unclear about what is required of the mother – where the matter was adjourned to allow for further submissions from the mother.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Kent

RESPONDENT:

Ms Shaw

FILE NUMBER:

ADC

4329

2007

DATE DELIVERED:

4 February 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

4 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

The alleged contravention in so far as it relates to the breach of paragraph 15 of the Orders made on 15 July 2010 is dismissed on the basis that there is no case to answer.
Judgment is reserved on the remaining alleged contraventions in paragraphs 4 and 5 of the Orders made on 15 July 2010.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4329 of 2007

Mr Kent

Applicant

And

Ms Shaw

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

In relation to the case to answer the application for contravention filed on 13/7/12 appears on the face of it to have been filed by the father when he was represented by appropriately qualified legal representatives. Paragraph 6 says:
State the paragraph number of the attached order, … that you allege has been contravened.

In that section the father does not simply state the paragraph number of the attached order but says as follows:
The mother failed to engage in therapy as ordered parag 4 [a] [b] [c] and parag 5 of the order Justice Strickland 15-7-10 thereby not enabling the father to have contact with his daughter as set out in parag 9 and 10 of the said order and be advised of school progress as set out in parag 15 of the said order.
In paragraph 7 (which requires the party to “state precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place if applicable”) the date is referred to “/about dec 2011/”. There is nothing for “Time” and the place “Adelaide”.
The statement of the alleged contravention is:
The mother as can be seen from report of…

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 KENT & SHAW

Details

AGLC: KENT & SHAW [2013] FamCA 38
Case: [2013] FamCA 38
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Kent (the applicant father) alleged that Ms Shaw (the respondent mother) had contravened court orders concerning their child. The dispute centred on two main areas: the mother's alleged failure to provide the father with notice of the child's school progress, and her alleged failure to undergo therapy as ordered.

The court was required to determine whether the mother had contravened the orders relating to the father's access to school reports and whether she had contravened the orders requiring her and the child to undergo therapy. The father also alleged that the mother's failure to engage in therapy prevented him from having contact with his daughter and from being advised of school progress.

Regarding the school progress notification, the court found that the order authorised the father to obtain this information directly from the schools, rather than requiring the mother to supply it. As there was no evidence presented of the mother failing to notify the father of the schools the child attended, this alleged contravention was dismissed. In relation to the therapy orders, the court noted that the primary orders were unclear as to the specific requirements for the mother regarding the duration or number of therapy sessions. While the court considered dismissing this aspect of the contravention application due to the lack of specificity in the orders, it ultimately adjourned the matter to allow the mother to present evidence in response to the allegations.

Orders