PALMER & STYLES - [2015] FamCA 58

FAMILY COURT OF AUSTRALIA

PALMER & STYLES

[2015] FamCA 58

FAMILY LAW – CONTRAVENTION – mother made oral application to dismiss father’s contravention application – where contravention does not show serious disregard – application of s 60I – further consideration of Application for Contravention adjourned pending the parties’ attendance at Family Dispute Counselling.

Family Law Act 1975 (Cth) s 60I

Bigg v Suzi (1998) FLC 92-799
Aldred &Aldred (1986) FLC 91-753
Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214
Spellson& Spellson (1989) FLC 92-046
Stavros & Stavros (1984) FLC 91-562
Stevenson & Hughes (1993) FLC 92-623

APPLICANT:

Mr Palmer

RESPONDENT:

Ms Styles

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

4906

2012

DATE DELIVERED:

3 February 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

3 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Palmer in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Koufalas

SOLICITOR FOR THE RESPONDENT:

Duncan Basheer Hannon

Orders

That the oral application of the mother for the summary dismissal of the Application for Contravention filed by the father on 23 December 2014 is refused.
UPON NOTING that the parties are to attend for s 60I Family Dispute Resolution counselling, the father’s Application for Contravention filed 23 December 2014 be adjourned for further hearing at 9.15 am on 26 March 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Palmer & Styles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4906 of 2012

Mr Palmer

Applicant

And

Ms Styles

Respondent

REASONS FOR JUDGMENT

On 11 June 2014 a parenting order was made in respect of the arrangements in which the children, J born in 2001 and M born in 2005, shall live with and spend time with each of their parents. The orders provided that during the relevant period under consideration, namely until 15 August 2016, the children shall live with the father each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday, for one half of school holiday periods with other times, and for one half of the Christmas holiday period, subject again to further conditions.
It is alleged by the father that on 18 December 2014 at 5.30 pm upon his attendance at a property situated at I Street, Suburb A the mother, without reasonable excuse, did not allow the child, M, to be collected by the applicant father pursuant to paragraph 5(a)(3) of the order. Presumably the parties were not able to reach any agreement in respect of a resolution of the dispute and on 23 December 2014 the father caused to be filed an application alleging contravention by the mother in the above terms.
The applicant father appears as a self-represented litigant. The mother appears represented by her solicitor, Mr Koufalas.
At 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 PALMER & STYLES

Details

AGLC: PALMER & STYLES [2015] FamCA 58
Case: [2015] FamCA 58
Decision Date: 3 February 2015

CaseChat Overview and Summary

In the matter of *Palmer & Styles*, Berman J of the Family Court of Australia considered an application by the mother for the summary dismissal of an Application for Contravention filed by the father. The father's application alleged that the mother had contravened certain parenting orders.

The primary legal issue before the court was whether the father's Application for Contravention should be summarily dismissed. This required the court to assess whether the application had sufficient merit to proceed to a full hearing or if it was so lacking in substance that it should be terminated at an early stage.

Berman J refused the mother's oral application for summary dismissal. The court noted that the parties were to attend Section 60I Family Dispute Resolution counselling. Consequently, the father's Application for Contravention was adjourned for further hearing following the completion of this counselling.

Orders

Orders of the court

That the oral application of the mother for the summary dismissal of the Application for Contravention filed by the father on 23 December 2014 is refused.

UPON NOTING that the parties are to attend for s 60I Family Dispute Resolution counselling, the father’s Application for Contravention filed 23 December 2014 be adjourned for further hearing at 9.15 am on 26 March 2015.

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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