Ramsay & Wade (No.2) - [2014] FCCA 1989

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMSAY & WADE (No.2)

[2014] FCCA 1989

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – reasonable excuse – reasonable excuse for contravening an order – where contraventions established – whether respondent has established a reasonable excuse – where reasonable excuse established in respect of two counts only.

Legislation:

Family Law Act 1975 (Cth), s.70NAE

Cases cited:
Ramsay & Wade [2014] FCCA 1431

Applicant:

MR RAMSAY

Respondent:

MS WADE

File Number:

SYC 5648 of 2012

Judgment of:

Judge Scarlett

Hearing dates:

20 - 22 August 2014

Date of Last Submission:

22 August 2014

Delivered at:

Sydney

Delivered on:

26 August 2014

REPRESENTATION

Solicitor for the Applicant:

Mr Reeve

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Ms Murphy (direct brief)

ORDERS

The Respondent Mother has established a reasonable excuse for contravening on 20 February 2014 Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013.
The Respondent Mother has established a reasonable excuse for contravening on 23 February 2014 Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013.
The Respondent Mother did on 27 February 2013 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.
The Respondent Mother did on 2 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.
The Respondent Mother did on 6 March 2014 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.
The Respondent Mother did on 9 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children [X] and [Y] in accordance with the Orders.
The Respondent Mother did on 13 March 2014 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.
The Respondent Mother did on 16 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

IT IS NOTED that publication…

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 Ramsay & Wade (No.2)

Details

AGLC: Ramsay & Wade (No.2) [2014] FCCA 1989
Case: [2014] FCCA 1989
Decision Date: 26 August 2014

CaseChat Overview and Summary

In *Ramsay & Wade (No.2)*, heard by Judge Scarlett, the dispute concerned allegations by the Applicant Father that the Respondent Mother had contravened court orders relating to the children's time with him. The court was required to determine whether the Respondent Mother had contravened specific orders on several dates and, if so, whether she had established a reasonable excuse for such contraventions.

The court considered the evidence presented regarding the Respondent Mother's actions on 20 February 2014 and 23 February 2014, finding that she had a reasonable excuse for contravening the orders on those dates. However, for contraventions occurring on 27 February 2013, 2 March 2014, 6 March 2014, 9 March 2014, 13 March 2014, and 16 March 2014, the court determined that the Respondent Mother had contravened the orders without reasonable excuse by refusing to allow the Applicant Father to spend time with the children as stipulated.

The court's findings indicate that while some contraventions were excused, a pattern of unexcused contraventions was established on multiple occasions. The orders reflect a finding that the Respondent Mother failed to facilitate the agreed-upon time between the Applicant Father and the children on several specified dates.

Orders

Orders of the court

The Respondent Mother has established a reasonable excuse for contravening on 20 February 2014 Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013.

The Respondent Mother has established a reasonable excuse for contravening on 23 February 2014 Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013.

The Respondent Mother did on 27 February 2013 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

The Respondent Mother did on 2 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

The Respondent Mother did on 6 March 2014 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

The Respondent Mother did on 9 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children [X] and [Y] in accordance with the Orders.

The Respondent Mother did on 13 March 2014 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

The Respondent Mother did on 16 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

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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