Leos and Leos - [2019] FamCA 339

FAMILY COURT OF AUSTRALIA

LEOS & LEOS

[2019] FamCA 339

FAMILY LAW – CHILDREN – Contravention Application – Where the father asserts that the mother has contravened certain parenting orders – Where the mother asserts that the father’s application should be summarily dismissed as defective for having failed to identify the orders he says she has contravened – Where the mother asserts that, in the alternative, the father’s application should be dismissed on the basis that it is unintelligible, ambiguous or imprecise – Application dismissed.

Family Law Act 1975 (Cth) ss. 38(2), 45A
Family Law Rules 2004 (Cth) rr. 10.12, 21.08
High Court Rules 2004 (Cth) r. 27.09.5

B & B [2007] FMCAfam 5
Davis & Davis (1976) FLC 90-050
Hale & Hale [2011] FMCAfam 1107
Iberian Trust Ltd. v. Founders Trust and Investment Co. (1932) 2 KB 87
Northam v Favelle Favco Holdings Pty Ltd (Supreme Court (NSW), 7 March 1995, unreported)
Sedley & Sedley [2018] FamCA 315

APPLICANT:

Mr Leos

RESPONDENT:

Ms Leos

FILE NUMBER:

SYC

6210

2010

DATE DELIVERED:

28 May 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

22 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Camden Solicitors and Conveyancers

SOLICITOR FOR THE RESPONDENT:

Burke & Mangan Lawyers

Orders

THE COURT ORDERS THAT:

Items 6 and 7 of the Contravention Application filed by the father on 14 September 2018 be struck out.
The Court decrees, pursuant to s 45A of the Family Law Act 1975(Cth), that items 8 and 9 of the Contravention Application filed by the father on 14 September 2018 have no reasonable prospects of success.
The Contravention Application filed by the father on 14 September 2018 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 Leos & Leos 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 SYDNEY

FILE NUMBER: SYC 6210 of 2010

Mr Leos

Applicant

And

Ms Leos

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns a Contravention Application filed by Mr Leos (“the father”) on 14 September 2018. In that application, the father alleges that, between 2 February 2018 and 15 August 2018, Ms Leos (“the mother”) “breached” certain parenting orders in respect to the parties’ children X, born in 2008, Y, born in 2008 and Z, born in 2010, referred to collectively herein as “the children”.
At the hearing on 22 May 2019, the mother’s solicitor made an oral application on behalf of her client for the proceedings to be dismissed, pursuant to r 10.12…

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 Leos and Leos

Details

AGLC: Leos and Leos [2019] FamCA 339
Case: [2019] FamCA 339
Decision Date: 28 May 2019

CaseChat Overview and Summary

In *Leos and Leos*, heard by McClelland DCJ, the father filed a Contravention Application on 14 September 2018. The mother sought to have certain items within this application struck out, and the court was required to determine the merits of the father's application.

The central legal issues before the court were whether specific paragraphs of the father's Contravention Application had reasonable prospects of success and, consequently, whether the entire application should be dismissed. The court was tasked with assessing the legal sufficiency of the allegations made by the father.

McClelland DCJ reasoned that items 6 and 7 of the Contravention Application lacked the necessary particularity and therefore had no reasonable prospects of success. Applying principles of procedural fairness and the requirements for pleading contraventions, the court determined that these allegations were insufficient to proceed. Furthermore, the court found that items 8 and 9 of the application, pursuant to section 45A of the *Family Law Act 1975* (Cth), also had no reasonable prospects of success.

Consequently, the court ordered that items 6 and 7 of the Contravention Application be struck out. The court further decreed, under section 45A of the *Family Law Act 1975* (Cth), that items 8 and 9 had no reasonable prospects of success. The entirety of the father's Contravention Application filed on 14 September 2018 was dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

Items 6 and 7 of the Contravention Application filed by the father on 14 September 2018 be struck out.

The Court decrees, pursuant to s 45A of the Family Law Act 1975 (Cth), that items 8 and 9 of the Contravention Application filed by the father on 14 September 2018 have no reasonable prospects of success.

The Contravention Application filed by the father on 14 September 2018 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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