Morse & Duarte - [2021] FedCFamC1F 273

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morse & Duarte [2021] FedCFamC1F 273

File number(s): SYC 737 of 2014

Judgment of: JARRETT J

Date of judgment: 25 November 2021

Catchwords: FAMILY LAW – CHILDREN – Contravention – Where the mother brings a contravention application regarding parenting orders – Where there are orders requiring the father to consider increasing the time the children spend with the mother, conditional on, inter alia, his satisfaction of her compliance with the remainder of the orders – Where the mother complains that he has not so considered – Where the mother has not complied with orders to spend supervised time with the children – Where there is therefore no evidence from which the father could be satisfied of her compliance – Where the father has no prima facie case to meet and the application is dismissed.

Legislation: Family Law Act 1975 (Cth)

Division: Division 1 First Instance

Number of paragraphs: 18

Date of hearing: 25 November 2021

Place: Brisbane

The Applicant Litigant in person

The Respondent Litigant in person
ORDERS

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN: MS DUARTE

AND: MR MORSE

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

25 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The application for contravention filed by the applicant on 17 September 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morse & Duarte is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

This is an application for contravention of certain parenting orders that were made by Le Poer Trench J on 1 December, 2017 by the mother of three children. The orders deal with both parenting and property issues but the application for contravention before me only deals with one of the parenting orders. It is said that that particular order, order number 11, has been contravened by the respondent father on four separate occasions.
It is necessary to understand something of the orders that were made in December, 2017 before proceeding to determine whether there is a prima facie case for the respondent to answer on the application for contravention. The orders – the parenting orders, at least – deal with the children of these parties, H, J and K.
By the orders, the…

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 Morse & Duarte

Details

AGLC: Morse & Duarte [2021] FedCFamC1F 273
Case: [2021] FedCFamC1F 273
Decision Date: 25 November 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Duarte brought a contravention application against Mr Morse regarding parenting orders that govern the time spent by their children with each parent. The orders included a provision that Mr Morse was to consider increasing the time the children spend with Ms Duarte, contingent upon her compliance with other conditions of the order. Ms Duarte alleged that Mr Morse had not considered this increase despite her compliance, while Mr Morse argued that Ms Duarte had not complied with the supervised time requirements, and thus he could not be satisfied of her compliance.

The court was required to determine whether there was evidence to support Ms Duarte's claim and whether Mr Morse had a prima facie case to meet in relation to the contravention application. The court found that there was no evidence from which Mr Morse could be satisfied of Ms Duarte's compliance with the supervised time orders, thus she had not met the condition precedent to the orders requiring him to consider an increase in the time the children spend with her. Consequently, Mr Morse had no prima facie case to meet, and the contravention application was dismissed.

The court's reasoning was based on the fact that for the contravention application to proceed, Ms Duarte needed to demonstrate compliance with the conditions precedent to the orders. Given that she had not complied with the supervised time requirements, the court found that Mr Morse could not be expected to consider an increase in the time the children spend with Ms Duarte. Therefore, the court dismissed the application and noted that this decision was in line with the legal principles governing family law proceedings.

Orders

Orders of the court

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DUARTE

AND:

MR MORSE

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

25 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The application for contravention filed by the applicant on 17 September 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

File number(s):	SYC 737 of 2014
Judgment of:	JARRETT J
Date of judgment:	25 November 2021
Catchwords:	FAMILY LAW – CHILDREN – Contravention – Where the mother brings a contravention application regarding parenting orders – Where there are orders requiring the father to consider increasing the time the children spend with the mother, conditional on, inter alia, his satisfaction of her compliance with the remainder of the orders – Where the mother complains that he has not so considered – Where the mother has not complied with orders to spend supervised time with the children – Where there is therefore no evidence from which the father could be satisfied of her compliance – Where the father has no prima facie case to meet and the application is dismissed.
Legislation:	Family Law Act 1975 (Cth)
Division:	Division 1 First Instance
Number of paragraphs:	18
Date of hearing:	25 November 2021
Place:	Brisbane
The Applicant	Litigant in person
The Respondent	Litigant in person

SYC 737 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS DUARTE
AND:	MR MORSE

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	25 NOVEMBER 2021