SELLEN & SELLEN - [2018] FamCA 891

FAMILY COURT OF AUSTRALIA

SELLEN & SELLEN

[2018] FamCA 891

FAMILY LAW – CONTRAVENTION – Where the mother alleges the father contravened final parenting orders – Where the mother proposes the father be penalised with a fine – Where s 70NAF(3) is invoked – Where the Court finds the father either had a reasonable excuse for the breach or the contraventions were not proved beyond reasonable doubt – Application dismissed

FAMILY LAW – VARIATION OF ORDERS – Where both parties seek to vary the parenting orders notwithstanding the contraventions not made out – Court’s discretion– Where the Court does not have updated expert evidence – Where it is not in the child’s best interests to vary the current parenting orders

Family Law Act 1975 (Cth) ss 70NAC, 70NAF, 70NBA, 70NE, 70NEA, 70NEB, 70NFA, 70NFB

Sellen & Sellen [2017] FamCA 275
Dobbs & Brayson [2007] FamCA 1261

APPLICANT:

Ms Sellen

RESPONDENT:

Mr Sellen

FILE NUMBER:

SYC

2350

2014

DATE DELIVERED:

1 November 2018

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns via video link to Sydney

JUDGMENT OF:

Tree J

HEARING DATE:

14 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lam

SOLICITORS FOR THE APPLICANT:

Genuine Legal

THE RESPONDENT:

In person

Orders

The mother’s Contravention Application filed 22 February 2018 is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sellen & Sellen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS VIA VIDEO LINK TO SYDNEY

FILE NUMBER: SYC 2350/2014

Ms Sellen

Applicant

And

Mr Sellen

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 3 May 2017, for reasons then delivered,[1] Loughnan J made final parenting and property orders as between the parties. By her Application – Contravention filed 22 February 2018, Ms Sellen (“the mother”) alleges nine instances of contravention of those orders by Mr Sellen (“the father”). For reasons given during the course of the hearing before me on 14 September 2018, I dismissed four of those counts on a summary basis, as they were legally not viable, and reserved my decision in relation to the remaining five alleged contraventions. This is that decision and the reasons for it.
[1]Sellen & Sellen [2017] FamCA 275.

BACKGROUND FACTS

The father was born in Country J in 1962, and hence is presently 55 years of age. The mother was born in the Country K on 23 April 1980, and hence is presently 38 years of age. In 1991 the father moved to Australia. In 2004 the parties commenced to communicate with each other…

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 SELLEN & SELLEN

Details

AGLC: SELLEN & SELLEN [2018] FamCA 891
Case: [2018] FamCA 891
Decision Date: 1 November 2018

CaseChat Overview and Summary

In the matter of *Sellen & Sellen*, heard before Tree J, the mother alleged that the father had contravened final parenting orders. The mother sought a penalty against the father, invoking section 70NAF(3) of the *Family Law Act 1975* (Cth).

The primary legal issue before the Court was whether the father had contravened the final parenting orders. If contravention was established, the Court would then consider the appropriate penalty. A secondary issue arose as both parties sought to vary the existing parenting orders, notwithstanding the mother's contravention application.

Tree J found that the father either had a reasonable excuse for the alleged breaches or that the contraventions were not proven beyond reasonable doubt. Consequently, the mother's contravention application was dismissed. The Court also considered the parties' applications to vary the parenting orders. However, in the absence of updated expert evidence and concluding that it was not in the child's best interests to vary the current orders, the Court declined to make any variation orders.

Orders

Orders of the court

The mother’s Contravention Application filed 22 February 2018 is dismissed.

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

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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