Lavan-Thornett and Small - [2009] FamCA 248

FAMILY COURT OF AUSTRALIA

LAVAN-THORNETT & SMALL

[2009] FamCA 248

FAMILY LAW – ORDERS - CONTRAVENTION – application alleging the father contravened orders for the two older children to spend time with the mother – long history of proceedings – where the orders the subject of the contravention application were made in 2001 – where the children are now aged 16 and 13 – where the children have expressed that they do not want to spend time with the mother as provided in the orders – whether the father had a reasonable excuse – where the father has made reasonable attempts to encourage the children to spend time with the mother – reasonable excuse established – parties to be heard as to any final orders to be made under ss 70NDM and 70NDC

Family Law Act 1975 (Cth) ss 65N, 70NAA, 70NAC, 70NAD, 70NAE, 70NAF, 70NDA, 70NDB, 70NDC & 70NEB

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Dobbs & Brayson (2007) FLC 93-345
Gaunt and Gaunt (1978) FLC 90-468
Stevenson v Hughes (1993) FLC 92-363

APPLICANT:

Ms Lavan-Thornett

RESPONDENT:

Mr Small

INDEPENDENT CHILDREN’S LAWYER:

Ashley Malcolm Kent

FILE NUMBER:

ADC

2007

DATE DELIVERED:

6 April 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

17 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Lindsay

SOLICITOR FOR THE APPLICANT:

North East Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

Sub-division D of Part 13A applies if, in accordance with section 70NDA, the Court is satisfied that a person has committed a contravention of the primary order and the respondent proves that he has reasonable excuse for the current contravention. The Court therefore may make orders under sections 70NDB and 70NDC.
Before dismissing the application for contravention it will therefore be necessary to hear the parties as to what final orders, if any, should be made.
This matter is adjourned for submissions as to any orders to be made other than dismiss the contravention to 9.15 am on the 14 April 2009 before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 92 of 2007

MS LAVAN-THORNETT

Applicant

And

MR SMALL

Respondent

REASONS FOR JUDGMENT

introduction

On the 4 March 2008 the mother Ms Lavan-Thornett filed an application in relation to an alleged contravention by the father, Mr Small. The contravention concerned orders made in 2001 which provided that the father give, and the mother have, contact with the children B born in December 1992, J born in June 1995 and H born in February 1998.
The contravention proceedings related only to the children B and J.

Trial

The proceedings were commenced in the Federal Magistrates…

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 Lavan-Thornett and Small

Details

AGLC: Lavan-Thornett and Small [2009] FamCA 248
Case: [2009] FamCA 248
Decision Date: 6 April 2009

CaseChat Overview and Summary

In the matter of Lavan-Thornett and Small, heard before Dawe J, the dispute concerned an application alleging contravention of a primary order. The court was required to determine whether it was satisfied that a contravention had occurred and, if so, whether the respondent could prove a reasonable excuse for that contravention.

The central legal issue was the application of Subdivision D of Part 13A of the relevant legislation. Specifically, the court had to consider the conditions under which it could make orders under sections 70NDB and 70NDC, which are contingent upon a finding of contravention and the respondent's ability to establish a reasonable excuse.

Dawe J reasoned that the court's power to make orders under sections 70NDB and 70NDC arises only if it is satisfied that a contravention of the primary order has been committed and the respondent proves a reasonable excuse for that contravention. Consequently, before dismissing the application for contravention, the court must hear submissions from the parties regarding any final orders that should be made. The matter was adjourned for these submissions.

Orders

Orders of the court

Sub-division D of Part 13A applies if, in accordance with section 70NDA, the Court is satisfied that a person has committed a contravention of the primary order and the respondent proves that he has reasonable excuse for the current contravention. The Court therefore may make orders under sections 70NDB and 70NDC.

Before dismissing the application for contravention it will therefore be necessary to hear the parties as to what final orders, if any, should be made.

This matter is adjourned for submissions as to any orders to be made other than dismiss the contravention to 9.15 am on the 14 April 2009 before the Honourable Justice Dawe.

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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