Seaward & MacDuff - [2011] FamCA 1041

FAMILY COURT OF AUSTRALIA

SEAWARD & MACDUFF

[2011] FamCA 1041

FAMILY LAW - CHILDREN – Contravention Application – Father asserted three contraventions by the mother where it was alleged the mother did not facilitate telephone communication between the father and the children in line with orders of the Court – Where orders were initially delivered orally – Where first asserted contravention occurred before perfected orders were received by the parties – Where the actions taken by the mother in relation to the second and third asserted contraventions were sufficient and reasonable – Application dismissed.

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

Childers & Leslie (2008) FLC 93-356
Jets & Maker [2010] FamCAFC 55
Taikato v R (1996) 186 CLR 454
The Marriage of Lutzke (1979) Fam LR 553

APPLICANT:

Mr Seaward

RESPONDENT:

Ms MacDuff

INDEPENDENT CHILDREN’S LAWYER:

Mr Samuels

FILE NUMBER:

SYC

2177

2011

DATE DELIVERED:

20 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

20 December 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

David H Cohen & Co

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

Abrams Turner Whelan

Orders

That the applications in a case filed by Mr Seaward (“the father”) on 10 April 2011, 22 July 2011 and 24 August 2011 are withdrawn and dismissed.
The contravention application filed by Mr Seaward on 29 August 2011 is dismissed.
In relation to the contravention application filed by Mr Seaward on 12 October 2011 to the extent that it is alleged Ms MacDuff (“the mother”) failed to comply with Order 7 dated 31 August 2011 on 14 September 2011, 21 September 2011, 25 September 2011, 28 September 2011, 2 October 2011, 5 October 2011 and 9 October 2011 the application is withdrawn and dismissed.
I give leave to Mr Seaward to orally amend his contravention application filed 12 October 2011 to include particulars of two alleged breaches of Order 7 dated 31 August 2011 on 11 September 2011 and 18 September 2011 as set out below.
a.Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and J and the father on 4 September 2011 without reasonable excuse.
b.Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and Z and the father on 11 September 2011 without reasonable excuse.
c.Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and J and the father on 18 September 2011 without reasonable excuse.
That the contravention application filed by Mr Seaward on 12 October 2011 is dismissed.
That the mother’s costs of the abovementioned contravention applications are reserved.
These proceedings are docketed to Justice Ryan.
On the applicant father’s application the final proceedings are expedited.
The final application is listed before me at 10.00 am…

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 Seaward & MacDuff

Details

AGLC: Seaward & MacDuff [2011] FamCA 1041
Case: [2011] FamCA 1041
Decision Date: 20 December 2011

CaseChat Overview and Summary

In proceedings before Ryan J, Mr Seaward, the father, sought to withdraw and dismiss several applications filed between April and October 2011, including contravention applications alleging breaches of court orders by Ms MacDuff, the mother. The court also considered an application by the father to amend a contravention application filed on 12 October 2011 to include particulars of two alleged breaches of Order 7 dated 31 August 2011, relating to the facilitation of telephone communication between the children and the father on 11 September 2011 and 18 September 2011.

The primary legal issues before the court concerned the dismissal of various applications made by the father, the amendment of a contravention application, and the scheduling of future proceedings. The court was required to determine whether to grant the father's requests for withdrawal and dismissal of his applications, whether to permit the amendment of the contravention application, and how to manage the ongoing litigation, including the setting of dates for interim and final hearings, and directions for the filing of affidavits and the potential appointment of an expert.

Ryan J ordered the withdrawal and dismissal of the father's applications filed on 10 April, 22 July, and 24 August 2011, and his contravention application filed on 29 August 2011. The court also dismissed the contravention application filed on 12 October 2011, to the extent that it alleged the mother failed to comply with Order 7 on specific dates in September and October 2011. However, leave was granted to the father to orally amend this application to include alleged breaches on 11 September 2011 and 18 September 2011. The mother's costs in relation to these contravention applications were reserved. The court then set a date for the final proceedings on 21 May 2012, with directions for affidavit filing and a potential application for funding for a child and adult psychiatrist. An interim hearing was scheduled for 2 February 2012.

Orders

Orders of the court

That the applications in a case filed by Mr Seaward (“the father”) on 10 April 2011, 22 July 2011 and 24 August 2011 are withdrawn and dismissed.

The contravention application filed by Mr Seaward on 29 August 2011 is dismissed.

In relation to the contravention application filed by Mr Seaward on 12 October 2011 to the extent that it is alleged Ms MacDuff (“the mother”) failed to comply with Order 7 dated 31 August 2011 on 14 September 2011, 21 September 2011, 25 September 2011, 28 September 2011, 2 October 2011, 5 October 2011 and 9 October 2011 the application is withdrawn and dismissed.

I give leave to Mr Seaward to orally amend his contravention application filed 12 October 2011 to include particulars of two alleged breaches of Order 7 dated 31 August 2011 on 11 September 2011 and 18 September 2011 as set out below.

a. Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and J and the father on 4 September 2011 without reasonable excuse.

b. Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and Z and the father on 11 September 2011 without reasonable excuse.

c. Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and J and the father on 18 September 2011 without reasonable excuse.

That the contravention application filed by Mr Seaward on 12 October 2011 is dismissed.

That the mother’s costs of the abovementioned contravention applications are reserved.

These proceedings are docketed to Justice Ryan.

On the applicant father’s application the final proceedings are expedited.

The final application is listed before me at 10.00 am on 21 May 2012 for four days.

10.

I DIRECT that the applicant pays the hearing fee or obtains a waiver of it by 3 February 2012.

11.

I DIRECT that both parties file and serve all affidavits upon which they rely by 6 April 2012.

12.

The Court Notes the parties may rely upon one affidavit per witness.

13.

Within seven days if reasonably practicable the Independent Children’s Lawyer shall apply to Legal Aid NSW for funding for a single expert child and adult psychiatrist to be appointed to investigate and report on matters in relation to the parties and the children.

14.

That the father’s application for interim orders filed 29 November 2011 is listed for interim hearing before Dawe J on 2 February 2012 for half a day.

15.

That the respondent file and serve a Response to the application in a case referred to above within 21 days.

16.

That the father file and serve any updating affidavit and/or other affidavits relied upon in the interim hearing by 20 January 2012.

17.

The final applications are listed for further directions at 9.30am on 2 February 2012.

18.

Liberty to the parties and their lawyers to apply for further directions on seven days notice.

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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