May and May - [2019] FCCA 671

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAY & MAY

[2019] FCCA 671

Catchwords:
FAMILY LAW – Contravention – contravention of parenting proceedings – whether father contravened orders of 10 April 2017 – whether reasonable excuse.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Childers & Leslie [2008] FamCAFC 5

Applicant:

MS MAY

Respondent:

MR MAY

File Number:

NCC 1521 of 2016

Judgment of:

Judge Betts

Hearing date:

25 February 2019

Date of Last Submission:

25 February 2019

Delivered at:

Newcastle

Delivered on:

25 February 2019

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Gillard Family Lawyers

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:

Bryant Mckinnon Lawyers

THE COURT ORDERS THAT:

Upon finding that:

on 4 August 2017, the Father, without reasonable excuse, contravened order 4(a)(i) and order 6 of the Orders contained in annexure “A” to the orders of 10 April 2017 (Count 1);
on 18 August 2017, the Father, without reasonable excuse, contravened order 4(a)(i) and order 6 of the Orders contained in annexure “A” to the orders of 10 April 2017 and the court being further satisfied beyond a reasonable doubt that the Father behaved in a way that showed a serious disregard of his obligations under the order (Count 2).
In respect of Count 1, pursuant to section 70NEB(1)(a) of the Family Law Act, the Father is ordered to attend a post-separation parenting program within four (4) months of the date of this order.
In respect of Count 2, the question as to what (if any) orders should be made pursuant to section 70NFB of the Family Law Act is adjourned to 23 May 2019 at 9:30am, two (2) hours allocated.
The Mother’s costs of today are reserved.
In relation to Count 2:
(a) the Mother is to file and serve an affidavit by close of registry filing on 11 March 2019, setting out the costs order she seeks and the basis for same;
(b) the Father is to file and serve any affidavit in response by close of registry filing on 25 March 2019.
(c) By close of registry filing 11 March 2019, the Mother is to file and serve a Response, Affidavit and Notice of Risk in relation to the substantive parenting proceedings instituted by the Father.
The substantive parenting proceedings are adjourned to 9:30am on 23 May 2019 for Directions Hearing and possible interim hearing depending on the Court’s available hearing time on that day, NOTING that the Mother’s counsel advises that she will apparently be relying upon the so-called principle in Rice & Asplund to submit that the Father’s Initiating Application should be dismissed.
The settled reasons for judgment of today are to be provided to the parties.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1521 of 2016

MS MAY

Applicant

And

MR MAY

Respondent

REASONS FOR…

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 May and May

Details

AGLC: May and May [2019] FCCA 671
Case: [2019] FCCA 671
Decision Date: 25 February 2019

CaseChat Overview and Summary

In the matter of May and May, Judge Betts considered allegations by the Mother that the Father had contravened parenting orders made on 10 April 2017. The proceedings involved two counts of contravention, with the Mother alleging the Father had, without reasonable excuse, contravened specific orders on 4 August 2017 and 18 August 2017. The court was required to determine whether these contraventions had occurred and, in relation to the second count, whether the Father had demonstrated a serious disregard of his obligations under the order.

The court found that the Father had contravened the parenting orders on both occasions. For the first contravention, the court ordered the Father to attend a post-separation parenting program within four months, pursuant to section 70NEB(1)(a) of the *Family Law Act 1975* (Cth). For the second contravention, the court was satisfied beyond a reasonable doubt that the Father had behaved in a way that showed a serious disregard of his obligations. The question of what orders, if any, should be made pursuant to section 70NFB of the *Family Law Act 1975* (Cth) in respect of this second contravention was adjourned for further determination. The Mother's costs of the day were reserved, and directions were made regarding the filing of affidavits concerning costs and the substantive parenting proceedings. The substantive parenting proceedings were also adjourned, with the Mother's counsel indicating an intention to rely on the principle in *Rice & Asplund* to argue for the dismissal of the Father's initiating application.

Orders

Orders of the court

Upon finding that:

on 4 August 2017, the Father, without reasonable excuse, contravened order 4(a)(i) and order 6 of the Orders contained in annexure “A” to the orders of 10 April 2017 (Count 1);

on 18 August 2017, the Father, without reasonable excuse, contravened order 4(a)(i) and order 6 of the Orders contained in annexure “A” to the orders of 10 April 2017 and the court being further satisfied beyond a reasonable doubt that the Father behaved in a way that showed a serious disregard of his obligations under the order (Count 2).

In respect of Count 1, pursuant to section 70NEB(1)(a) of the Family Law Act, the Father is ordered to attend a post-separation parenting program within four (4) months of the date of this order.

In respect of Count 2, the question as to what (if any) orders should be made pursuant to section 70NFB of the Family Law Act is adjourned to 23 May 2019 at 9:30am, two (2) hours allocated.

The Mother’s costs of today are reserved.

In relation to Count 2:

(a) the Mother is to file and serve an affidavit by close of registry filing on 11 March 2019, setting out the costs order she seeks and the basis for same;

(b) the Father is to file and serve any affidavit in response by close of registry filing on 25 March 2019.

(c) By close of registry filing 11 March 2019, the Mother is to file and serve a Response, Affidavit and Notice of Risk in relation to the substantive parenting proceedings instituted by the Father.

The substantive parenting proceedings are adjourned to 9:30am on 23 May 2019 for Directions Hearing and possible interim hearing depending on the Court’s available hearing time on that day, NOTING that the Mother’s counsel advises that she will apparently be relying upon the so-called principle in Rice & Asplund to submit that the Father’s Initiating Application should be dismissed.

The settled reasons for judgment of today are to be provided to the parties.

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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