Papp & Myers - [2022] FedCFamC1F 936

Federal Circuit and Family Court of Australia
(DIVISION 1)
Papp & Myers [2022] FedCFamC1F 936

File number: SYC 5372 of 2018

Judgment of: HENDERSON J

Date of judgment: 23 September 2022

Catchwords: FAMILY LAW – CONTRAVENTION – Prima facie case – Where the father alleges the mother contravened final orders consisting of 18 breaches – Consideration of ‘contravened an order’ – Finding the father has established a prima facie case in respect of all counts.

Legislation: Family Law Act 1975 (Cth) s 70NAC(1)(a), (1)(b).

Cases cited: Papp & Myers [2020] FamCA 127.

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 23 September 2022

Place: Sydney

Counsel for the Applicant: Mr Longworth

Solicitor for the Applicant: Michael Conley Lawyers

Counsel for the Respondent: Mr Antill

Solicitor for the Respondent: Jack Rigg Solicitors
ORDERS

SYC 5372 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PAPP

Applicant

AND:
MS MYERS

Respondent

order made by:

HENDERSON J

DATE OF ORDER:

23 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The respondent, Ms Myers, born in 1977, is found guilty, on a prima facie basis, of contravening:
(a)Order 2 of the orders made on 22 May 2020, in February 2021; and
(b)Order 5(a)(i) of the orders made on 22 May 2020, on 27 June 2020; and
(c)Order 5(a)(i) of the orders made on 22 May 2020, on 11 July 2020; and
(d)Orders 5(a)(i), 6(b), and 18(c) of the orders made on 22 May 2020, on 25 July 2020; and
(e)Order 5(a)(ii) of the orders made on 22 May 2020, on 8 August 2020; and
(f)Orders 5(a)(ii), 6(b), and 18(c) of the orders made on 22 May 2020, on 22 August 2020; and
(g)Order 5(a)(ii) of the orders made on 22 May 2020, on 12 September 2020; and
(h)Orders 5(a)(ii), 6(b), and 18(c) of the orders made on 22 May 2020, on 26 September 2020; and
(i)Order 5(a)(iii) of the orders made on 22 May 2020, on 10 October 2020; and
(j)Orders 5(a)(iii), 6(b), and 18(c) of the orders made on 22 May 2020, on 24 October 2020; and
(k)Order 5(a)(iv) of the orders made on 22 May 2020, on 14 November 2020; and
(l)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 27 November 2020; and
(m)Order 5(a)(iv) of the orders made on 22 May 2020, on 11 December 2020; and
(n)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 26 February 2021; and
(o)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 27 March 2021; and
(p)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 24 April 2021; and
(q)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 22 May 2021; and
(r)Order 5(b) of the orders made on 22 May 2020, on 25 December 2020.

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

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 Papp & Myers

Details

AGLC: Papp & Myers [2022] FedCFamC1F 936
Case: [2022] FedCFamC1F 936
Decision Date

CaseChat Overview and Summary

The case of Papp & Myers was heard in the Federal Circuit and Family Court of Australia, Division 1. The applicant, Mr Papp, alleged that the respondent, Ms Myers, contravened final orders made by Harper J on 22 May 2020. The final orders required Ms Myers to bring the child, X, to Sydney to spend time with Mr Papp on specific occasions. Mr Papp filed a contravention application on 18 August 2021, alleging that Ms Myers contravened the final orders on 18 occasions. Ms Myers admitted to contravening certain orders but denied contravening the remaining orders. The court was required to determine whether Ms Myers contravened the final orders and whether Mr Papp had established a prima facie case for the contravention.

The court considered the evidence presented by Mr Papp and Ms Myers, including their affidavits and cross-examination. The court found that Mr Papp had established a prima facie case for all counts of the contravention. The court noted that Ms Myers had not provided any evidence or argument to support her claim that she had taken reasonable steps to ensure that X spent time with Mr Papp. The court held that a parent must encourage and do all that is reasonable to ensure compliance with court orders, particularly in relation to the importance of children having a relationship with both parents. The court found that Ms Myers had failed to take any reasonable steps to ensure that X spent time with Mr Papp, and therefore, she had contravened the final orders.

The court found Ms Myers guilty of contravening the final orders on a prima facie basis for all 18 counts. The court noted that Ms Myers had filed an affidavit in relation to her reasonable excuse, and the matter would be adjourned to allow the court to consider her material. The court made an order that Ms Myers was found guilty, on a prima facie basis, of contravening the final orders on the specified occasions.

In conclusion, the court found that Mr Papp had established a prima facie case for all counts of the contravention, and Ms Myers was found guilty of contravening the final orders on a prima facie basis. The matter will be adjourned to allow the court to consider Ms Myers' affidavit in relation to her reasonable excuse.

Orders