PHU & CHAN (No.3) - [2015] FCCA 1782

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHU & CHAN (No.3)

[2015] FCCA 1782

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – where allegations denied – reasonable excuse – whether respondent had a reasonable excuse for any contravention established.

PRACTICE AND PROCEDURE – Disruptive behaviour by applicant – disruptive comments in court – where further cross-examination futile – where further submissions futile – where application decided on evidence already taken.

Legislation:

Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NAF

Cases cited:
Phu & Chan [2015] FCCA 275
Phu & Chan [2015] FCCA 1208

Applicant:

MS PHU

Respondent:

MR CHAN

File Number:

SYC 1714 of 2010

Judgment of:

Judge Scarlett

Hearing dates:

21 April, 5 May 2015

Date of Last Submission:

5 May 2015

Delivered at:

Sydney

Delivered on:

29 June 2015

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

The Respondent has made out a reasonable excuse in respect of Counts 1 and 2 of the Application-Contravention filed on 21 October 2014.
Counts 6 and 7 of the Application-Contravention filed on 21 October 2014 are dismissed.
The Application-contravention filed on 21 October 2014 is dismissed in its entirety.

IT IS NOTED that publication of this judgment under the pseudonym Phu & Chan (No.3) 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

The Applicant has brought contravention proceedings against the Respondent, who is the father of the parties’ child X, who is now 14 years of age, claiming that he contravened a number of Orders made on 18^th June 2013. There were ten separate counts, alleging various contraventions of 12 separate Orders on various dates.
On 12^th February 2015, after a hearing an Application for summary dismissal on 4^th February 2015, I made orders dismissing Counts 3, 4, 5, 8, 9 and 10 of the Application (Phu & Chan[1]). The balance of the Application was adjourned to 21^st April 2015 for hearing.
[1] [2015] FCCA 275

Allegations

The remaining counts are Counts 1, 2, 6 and 7. The Father denies each one.
Count 1 claims that the father contravened Order 5(a) made on 18^th June 2013 on eleven separate occasions between 14^th February and 7^th July 2013 by deliberately denying the child a total of 33 nights of weekend access to the Mother and actively preventing the child from seeing her.
Order 5(a) states:
The child X is to spend time with the Mother as follows:
a) Each alternate weekend during the school term commencing on the first weekend after the commencement of the third school term in 2013;
Count 2 claims that the Father contravened Orders 5(b) and 5(c) on three separate occasions, being the Term 1, Term 2 and Term 3 school holidays in 2014, although, as I commented earlier[2], the allegation in respect of the Term 3 school holidays was framed as…

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 (No.3)

Details

AGLC: PHU & CHAN (No.3) [2015] FCCA 1782
Case: [2015] FCCA 1782
Decision Date: 29 June 2015

CaseChat Overview and Summary

In the matter of PHU & CHAN (No.3), Judge Scarlett of the Family Court of Australia considered allegations of contravention of parenting orders. The respondent denied the contraventions and asserted a defence of reasonable excuse. The proceedings also involved disruptive behaviour by the applicant during the hearing, which led to limitations on further cross-examination and submissions.

The primary legal issue before the court was whether the respondent had established a reasonable excuse for any contraventions of the parenting orders that may have been proven. The court also had to consider the impact of the applicant's disruptive conduct on the conduct of the proceedings and the ability to present further evidence or arguments.

Judge Scarlett found that the respondent had successfully demonstrated a reasonable excuse in relation to Counts 1 and 2 of the Application-Contravention. Furthermore, Counts 6 and 7 of the same application were dismissed. Consequently, the entirety of the Application-Contravention filed on 21 October 2014 was dismissed by the court.

Orders

Orders of the court

The Respondent has made out a reasonable excuse in respect of Counts 1 and 2 of the Application-Contravention filed on 21 October 2014.

Counts 6 and 7 of the Application-Contravention filed on 21 October 2014 are dismissed.

The Application-contravention filed on 21 October 2014 is dismissed in its entirety.

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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