Lawrence and Dehn (No 2)

[2014] FamCA 642

FAMILY COURT OF AUSTRALIA

LAWRENCE & DEHN (NO 2) [2014] FamCA 642

FAMILY LAW – PROCEDURAL – Whether the father should be permitted to reopen the contravention proceedings in respect of adducing evidence as to reasonable excuse – Where the Court has found a contravention and there was no evidence of reasonable excuse – Where the contravention application was heard on an undefended basis as the father failed to attend – Application dismissed

APPLICANT: Ms Lawrence

RESPONDENT: Mr Dehn

FILE NUMBER: PAC 4894 of 2008

DATE DELIVERED: 1 August 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 1 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Samson

SOLICITOR FOR THE APPLICANT: Smythe Wozniak Legal

COUNSEL FOR THE RESPONDENT: Ms Messner

SOLICITOR FOR THE RESPONDENT: Eddy Neumann Lawyers

Orders

1. The matter be adjourned to 12 August 2014 at 10.00am for interim hearing of the balance of the mother’s contravention application and the future conduct of the other contraventions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawrence & Dehn 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 PARRAMATTA

FILE NUMBER: PAC 4894 of 2008

Ms Lawrence

Applicant

And

Mr Dehn

Respondent

REASONS FOR JUDGMENT

1. This is an application by the Respondent father to a Contravention Application to be permitted to adduce evidence as to him having a reasonable excuse for contravening an Order.

2. The application in relation to the contravention of a primary Order was dealt with on 11 July 2014 in the absence of the Respondent father and a Judgment was delivered on that date.

3. The Respondent father does not press an application which he had earlier foreshadowed that the finding that the primary Order had been contravened be set aside on the basis that he had not been afforded procedural fairness in that he was not aware that the proceedings were to be determined on that day. However, it is his case that the Court, in effect, did nothing further than find the contravention proved on that day and that the issue of a reasonable excuse was not properly considered by the Court on that day and he wishes to have that issue determined today.

4. The Applicant mother opposes that application and says, in effect, that the whole of the contravention proceedings other than the issue of the remedy were dealt with on that day, that is, the issue both of whether the Order had been contravened and whether there had been a reasonable excuse for contravening the Order.

5. It is clear from the scheme of the Act that the Court does not consider the issue of whether there is a reasonable excuse for contravening an order until a finding is made that an order has been contravened. The Act makes it clear that a Court may find that an order has not been contravened or that it has been contravened and there is a reasonable excuse or that it has been contravened and there is not a reasonable excuse.

6. The Court was satisfied on 11 July 2014 that the father had been served and the matter was dealt with in his absence. This issue is not being contested by the father. The scheme of the Act makes it clear that the application can be dealt with and indeed it was dealt with for all purposes, that is, the Court considered whether the contravention had occurred and whether there was a reasonable excuse.

7. The final paragraph of the Judgment given on that day (11 July 2014) makes it clear I did turn my mind to both whether the Order had been contravened and whether there was a reasonable excuse being proffered by the Respondent father. I noted that there was no evidence before me in relation to the issue of a reasonable excuse.

8. In my view, the authorities dealing with the issue of procedural fairness make it clear that it is necessary for a person to be both notified of and aware of the matters alleged against the person and also be provided an opportunity to respond to that allegation.

9. As the father chose not to attend on that day, he is accepting that not only will he be content with the matters alleged against him be heard in his absence, but also that he has nothing to say in response to them.

10. As indicated in the interchange between counsel and the Bench, there needs to be, when considering the issue of a reasonable excuse some evidence before the Court for it to be able to determine whether that reasonable excuse has been made out. In other words, the person asserting the reasonable excuse has an evidentiary onus initially to discharge it. There was no evidence before me on that date and having considered that and determined the matter, in my view, it is not now open to the father to, in effect, reopen those proceedings and have the issue of reasonable excuse dealt with today.

11. Accordingly, the only matter that I now need to deal with is the issue of the balance of the application made by the mother upon the contravention having been proved as well as the future conduct of the other contravention.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 August 2014.

Legal Associate:       

Date:    8 August 2014