Phu & Chan - [2015] FCCA 275

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHU & CHAN

[2015] FCCA 275

Catchwords:
FAMILY LAW – Children – contravention – contravention of parenting orders – where respondent seeks summary dismissal – where parts of the proceeding summarily dismissed.

FAMILY LAW – Contravention of parenting orders – applications for a finding that a person has contravened an order affecting children are child-related proceedings under Family Law Act 1975 (Cth) s.69ZM.

PRACTICE AND PROCEDURE – Application – contravention – where application was served at respondent’s address for service – whether application required to be served by hand – held good service.

COSTS – Security for costs – no order for security for costs.

Legislation:

Family Law Act 1975 (Cth), ss.69ZM, 69ZT, 69ZV, 70NAC

Federal Circuit Court of Australia 1999 (Cth), s.17A
Federal Circuit Court Rules 2001, r.13.10

Cases cited:
Chan & Phu [2013] FCCA 556
Gitane & Velacruz [2007] FamCA 183; (2007) FLC 93-309
Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541
Vijayakumar v Qantas Airways [2009] FMCA 736

Applicant:

MS PHU

Respondent:

MR CHAN

File Number:

SYC 1714 of 2010

Judgment of:

Judge Scarlett

Hearing date:

4 February 2015

Date of Last Submission:

4 February 2015

Delivered at:

Sydney

Delivered on:

12 February 2015

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Mr Tiyce

Solicitors for the Respondent:

Tiyce Lawyers

ORDERS

The Application-Contravention filed on 11 July 2014 is discontinued.
Counts 3, 4, 5, 8, 9 and 10 of the Application-Contravention filed on 21 October 2014 are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1714 of 2010

MS PHU

Applicant

And

MR CHAN

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the mother of the parties’ daughter [X], who is shortly about to reach the age of 14 years, for findings that the father has contravened various Orders made on 18 June 2013 after an interim parenting hearing (Chan & Phu[1]). There are ten separate counts, alleging various contraventions of 12 separate orders on various dates.
[1] [2013] FCCA 556
The Application is supported by an affidavit sworn on 20 October 2014.
The father seeks that the Application should be summarily dismissed. In the alternative, he seeks orders that:
a)the mother should provide the sum of $20,000.00 by way of security for costs; and
b)the hearing of the Application should be stayed pending the payment of the amount of security for costs.

Earlier Application

The mother filed an earlier Application on 11 July 2014 seeking that the father should be dealt with for contravention of the Orders. The mother subsequently filed a further Application on 21 October 2014. Although the later Application was not described as an Amended Application, the mother told the Court that it was intended to supersede the earlier Application.
Consequently, the Application filed on 11 July…

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 Phu & Chan

Details

AGLC: Phu & Chan [2015] FCCA 275
Case: [2015] FCCA 275
Decision Date: 12 February 2015

CaseChat Overview and Summary

In the matter of *Phu & Chan*, heard before Judge Scarlett, the proceedings concerned alleged contraventions of parenting orders. The respondent sought summary dismissal of parts of the application, which the court considered.

The primary legal issues before the court were whether applications for findings of contravention of parenting orders were child-related proceedings for the purposes of s 69ZM of the *Family Law Act 1975* (Cth), and whether service of an application at the respondent's address for service constituted good service, even if not effected by hand. The court also considered an application for security for costs.

The court determined that applications for contravention of parenting orders are indeed child-related proceedings under s 69ZM of the *Family Law Act 1975* (Cth). Furthermore, the court found that service of the application at the respondent's nominated address for service was good service, notwithstanding that it was not served by hand. No order for security for costs was made.

Consequently, the Application-Contravention filed on 11 July 2014 was discontinued, and specific counts (3, 4, 5, 8, 9, and 10) of the Application-Contravention filed on 21 October 2014 were dismissed.

Orders

Orders of the court

The Application-Contravention filed on 11 July 2014 is discontinued.

Counts 3, 4, 5, 8, 9 and 10 of the Application-Contravention filed on 21 October 2014 are dismissed.

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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