MACKENZIE & GALE - [2015] FCCA 2755

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACKENZIE & GALE

[2015] FCCA 2755

Catchwords:
FAMILY LAW – Children – parenting orders – contravention of parenting orders – reasonable excuse – reasonable excuse for contravening an order – where contraventions admitted – whether respondent has established a reasonable excuse – seven counts alleged – where reasonable excuse established in respect of three counts only.

Legislation:

Family Law Act 1975 (Cth), ss.70NAE, 70NAF, 70NEA

Cases cited:
Ramsay & Wade (No.2) [2014] FCCA 1989

Applicant:

MR MACKENZIE

Respondent:

MS GALE

File Number:

CRC 125 of 2010

Judgment of:

Judge Scarlett

Hearing date:

22 September 2015

Date of Last Submission:

22 September 2015

Delivered at:

Sydney

Delivered on:

9 October 2015

REPRESENTATION

Solicitor for the Applicant:

Mrs Tanner

Solicitors for the Applicant:

Coffs Coast Family Law

Solicitor for the Respondent:

Ms McKinnon

Solicitors for the Respondent:

Slater & Gordon Lawyers

ORDERS

The Respondent mother has established a reasonable excuse for contravening on 5 December 2014 Order 2.1 made on 20 December 2010.
The Respondent mother has established a reasonable excuse for contravening between 20 December 2014 and 3 January 2015 Order 2.2 made on 20 December 2010.
The Respondent mother has established a reasonable excuse for contravening on 5 February 2015 Order 2.1 made on 20 December 2010.
The Respondent mother did on 6 March 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father in accordance with the Order.
The Respondent mother did on 3 April 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.
The Respondent mother did on 1 May 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.
The Respondent mother did on 6 June 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 125 of 2010

MR MACKENZIE

Applicant

And

MS GALE

Respondent

REASONS FOR JUDGMENT

Application-Contravention

This is an Application by the father of a boy called X to deal with the mother for contravention of parenting Orders made by this Court on 20 December 2010. The child concerned was born on (omitted) 2003 and is now twelve years old. He lives with his mother, the Respondent.
The Applicant claims that the Respondent contravened the Orders on seven separate occasions between 5 December 2014 and 6 June 2015.
The Respondent admits the allegations but claims that she has a reasonable excuse for contravening the Orders in each case. She has filed an affidavit on 22 September 2015 in…

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 MACKENZIE & GALE

Details

AGLC: MacKenzie and Gale [2015] FCCA 2755
Case: [2015] FCCA 2755
Decision Date: 9 October 2015

CaseChat Overview and Summary

In the matter of *Mackenzie & Gale*, heard before Judge Scarlett, the dispute concerned allegations by the Applicant father that the Respondent mother had contravened specific orders regarding the child X's time with the father. The father sought declarations of contravention and potentially further orders.

The court was required to determine whether the Respondent mother had contravened the existing orders on several specified dates, and if so, whether she had established a reasonable excuse for any such contraventions. The central legal issue was the application of the concept of "reasonable excuse" in the context of family law parenting orders.

Judge Scarlett found that the Respondent mother had established a reasonable excuse for contravening the orders on 5 December 2014, between 20 December 2014 and 3 January 2015, and on 5 February 2015. However, the court determined that the Respondent mother had contravened Order 2.1 made on 20 December 2010 on 6 March 2015, 3 April 2015, 1 May 2015, and 6 June 2015, without a reasonable excuse, by failing to allow the child X to spend time with the Applicant father as stipulated in the order.

Orders

Orders of the court

The Respondent mother has established a reasonable excuse for contravening on 5 December 2014 Order 2.1 made on 20 December 2010.

The Respondent mother has established a reasonable excuse for contravening between 20 December 2014 and 3 January 2015 Order 2.2 made on 20 December 2010.

The Respondent mother has established a reasonable excuse for contravening on 5 February 2015 Order 2.1 made on 20 December 2010.

The Respondent mother did on 6 March 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father in accordance with the Order.

The Respondent mother did on 3 April 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.

The Respondent mother did on 1 May 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.

The Respondent mother did on 6 June 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.

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.