Tasman & Tisdall - [2008] FamCA 458

FAMILY COURT OF AUSTRALIA

TASMAN & TISDALL

[2008] FamCA 458

FAMILY LAW – ORDERS – Contravention – application alleging mother contravened without reasonable excuse orders that father spend time with the child – whether intentionally failed to comply or made no reasonable attempt to comply – consideration of terms of order – difficulty in interpretation – order did not specify when father’s weekend time with child was to commence or conclude – not satisfied mother intentionally failed or made no reasonable attempt to comply with order – mother had reasonable excuse in any event under ss 70NAE(2) and 70NAE(5) – application dismissed.

FAMILY LAW - COSTS – father to pay mother’s costs of and incidental to contravention application as agreed or taxed.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NCB, 70NFB &117

APPLICANT:

Mr Tasman

RESPONDENT:

Ms Tisdall

FILE NUMBER:

ADC

2845

2007

DATE DELIVERED:

20 June 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

20 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Self-Represented

COUNSEL FOR THE RESPONDENT:

Ms J.N. Milen

SOLICITOR FOR THE RESPONDENT:

Jo-Anne Milen & Associates

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission of South Australia

Orders

Leave is given to the father to issue a subpoena to produce documents to the F Medical Centre in relation to all their case notes, documents and records concerning the two children C, born on the … September 1992 and M, born on the … July 1994, such subpoena to be returnable before a Registrar in the usual course.
The Application in a Case filed by the father on the 30 April 2008 is dismissed.
The Contravention Application of the father filed on the 9 July 2007 is dismissed.
That the father pay the costs of the mother of and incidental to the application for Contravention such costs to be agreed within twenty-one [21] days from today and failing agreement as taxed in accordance with the appropriate solicitor/client costs scale.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2845 of 2007

MR TASMAN

Applicant

And

MS TISDALL

Respondent

EX-TEMPPORE REASONS FOR JUDGMENT

Introduction

The contravention application which is listed for hearing before me today is the contravention application of the father filed on 9 July 2007. That contravention application relates to an allegation that the mother has contravened the order of Judicial Registrar Forbes made on Wednesday, 13 June 2007 so far as it relates to the father spending time with M.
The specific allegations of the contraventions are that the respondent mother, “without reasonable excuse, refused to allow and/or facilitate and to do all things to encourage” the child M to spend time with the father on the weekends commencing Friday, 22 June, Friday, 29 June and Friday, 6 July.
For the purposes of hearing the contravention applications, I received before me…

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 Tasman & Tisdall

Details

AGLC: Tasman & Tisdall [2008] FamCA 458
Case: [2008] FamCA 458
Decision Date: 20 June 2008

CaseChat Overview and Summary

In the Family Court of Australia, Dawe J considered an application by a father alleging that the mother had contravened, without reasonable excuse, orders for the father to spend time with their two children. The core of the dispute revolved around whether the mother had intentionally failed to comply with the existing parenting orders or had made no reasonable attempt to do so.

The legal issues before the court were whether the mother had contravened the parenting orders and, if so, whether she had a reasonable excuse for such contravention. Specifically, the court had to determine if the mother's actions constituted an intentional failure to comply or a lack of reasonable attempt to comply, and whether the terms of the order itself provided a basis for a reasonable excuse.

Dawe J found that the parenting order was ambiguous as it did not specify the commencement or conclusion times for the father's weekend time with the children. This ambiguity meant the court was not satisfied that the mother had intentionally failed to comply or made no reasonable attempt to comply. Furthermore, the court determined that the mother had a reasonable excuse for any contravention under sections 70NAE(2) and 70NAE(5) of the relevant legislation. Consequently, the father's contravention application was dismissed. The father was also ordered to pay the mother's costs of and incidental to the contravention application.

Orders

Orders of the court

Leave is given to the father to issue a subpoena to produce documents to the F Medical Centre in relation to all their case notes, documents and records concerning the two children C, born on the … September 1992 and M, born on the … July 1994, such subpoena to be returnable before a Registrar in the usual course.

The Application in a Case filed by the father on the 30 April 2008 is dismissed.

The Contravention Application of the father filed on the 9 July 2007 is dismissed.

That the father pay the costs of the mother of and incidental to the application for Contravention such costs to be agreed within twenty-one [21] days from today and failing agreement as taxed in accordance with the appropriate solicitor/client costs scale.

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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