Nathan and Merrill - [2018] FamCA 994

FAMILY COURT OF AUSTRALIA

NATHAN & MERRILL

[2018] FamCA 994

FAMILY LAW – ORDERS – Contravention – Penalty

Family Law Act 1975 (Cth) Pt VII Div 13A, sub-divs C, D, E, F

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655

APPLICANT:

Ms Nathan

RESPONDENT:

Mr Merrill

INDEPENDENT CHILDREN’S LAWYER:

Silkwoods

FILE NUMBER:

ADC

3121

2015

DATE DELIVERED:

27 November 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

19 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Roberts

SOLICITOR FOR THE APPLICANT:

Andrew Hill and Co

COUNSEL FOR THE RESPONDENT:

Mr Britton

SOLICITOR FOR THE RESPONDENT:

Weatherley & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Olsson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Silkwoods

Orders

That within seven (7) days from the date of this order MR MERRILL enter into a Bond for a period of nine (9) months without surety or security upon the following conditions:-
(a) That he be of good behaviour during the period of the Bond;
(b) That he comply with all current and future parenting orders.

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 Nathan & Merrill 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 ADELAIDE

FILE NUMBER: ADC 3121 of 2015

Ms Nathan

Applicant

And

Mr Merrill

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Contravention Application filed 25 June 2018 Ms Nathan (“the mother”) alleged that Mr Merrill (“the father”) contravened paragraph 4 of orders made 21 February 2018 on 15 March 2018, 24, 25 and 26 April 2018 and 10 May 2018.
The parties are the parents of X born … 2014 and Y born … 2016 (“the children”).
On 24 October 2018 the father admitted the breaches of the order and conceded that he did so without reasonable excuse.
The order contravened is in the following terms:-
4.The parties be restrained and an injunction is granted restraining each of them from publishing any video, photograph or any other form of image, together with any commentaries, remarks letters or statements or any other form of reference to or about these proceedings, the children and/or the respondent on Youtube, Facebook, internet websites or any other form of social media.
It is notable that the order contravened was made by consent on 21 February 2018.
The mother’s affidavit in support of the contravention application was uplifted by her Affidavit filed 6 November 2018. The gravamen of the contravention application is that the father posted a video, created a Facebook…

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 Nathan and Merrill

Details

AGLC: Nathan and Merrill [2018] FamCA 994
Case: [2018] FamCA 994
Decision Date: 27 November 2018

CaseChat Overview and Summary

The matter of *Nathan and Merrill* concerned an application before Berman J. The dispute involved Mr Merrill and related to his compliance with parenting orders.

The central legal issue before the Court was whether Mr Merrill should be required to enter into a bond for a period of nine months, without surety or security, and the conditions to be attached to such a bond.

Berman J ordered that Mr Merrill enter into a bond for a period of nine months without surety or security. The conditions stipulated were that he must be of good behaviour during the bond period and must comply with all current and future parenting orders. The form of the order was noted as being subject to its entry in the Court's records.

Orders

Orders of the court

That within seven (7) days from the date of this order MR MERRILL enter into a Bond for a period of nine (9) months without surety or security upon the following conditions:-

(a) That he be of good behaviour during the period of the Bond;

(b) That he comply with all current and future parenting orders.

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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