Tilly and Ansell - [2007] FamCA 1042

FAMILY COURT OF AUSTRALIA

TILLY & ANSELL

[2007] FamCA 1042

FAMILY LAW – CHILDREN – Contravention – Father asserted two contraventions by the mother where the children were not made available to him in line with orders for week-about arrangement – In relation to the first asserted contravention, the father conceded there may have been genuine confusion as to the changeover arrangements – In relation to the second asserted contravention, the father conceded the mother withheld the children based upon the suggestion and information from a Family Relationships Centre and that she believed she was acting on reasonable grounds. This represents a reasonable excuse for contravention pursuant to s 70NAE(4)

Family Law Act 1975 (Cth)

APPLICANT:

MR TILLY

RESPONDENT:

MS ANSELL

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLF

3202

2006

DATE DELIVERED:

3 September 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Kay J

HEARING DATE:

3 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Ms Robertson

SOLICITOR FOR THE RESPONDENT:

Digala & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

ORDERS

That the application filed 20 August 2007 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Kay delivered this day will for all publication and reporting purposes be referred to as Tilly & Ansell.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3202 of 2006

MR TILLY

Applicant

And

MS ANSELL

Respondent

REASONS FOR JUDGMENT

I have before me an application for contravention filed by the father of two children, a daughter, born in October 1993 and who is currently 13 years of age, and a son, born in January 1996 who is currently 11 years of age.
There are orders made by consent in February 2007 that provide that the children should spend a week-about arrangement with each of the parents and that changeover take place with the father collecting the children after school every second Friday.
The father asserted two contraventions, one occurring on 3 August 2007 in relation to the son only, and another on 17 August 2007 in relation to both children.
It was asserted that on 3 August 2007, the day on which the daughter was appearing in a music concert and was not expected to be available until the end of the concert, that the son was not made available after school when the father went to collect him. The mother responded in her affidavit saying that she understood the arrangements were that she would take the son to the concert and the son would be made available to the father after the concert and that is indeed what happened.
The father conceded in cross-examination that there may have been some genuine confusion about the arrangements. Although he certainly was not party to the arrangements that were made between the mother and the children, it may well be that the mother had a different view of what was involved. There being…

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 Tilly and Ansell

Details

AGLC: Tilly and Ansell [2007] FamCA 1042
Case: [2007] FamCA 1042
Decision Date: 30 September 2007

CaseChat Overview and Summary

The applicant, Tilly, sought to join Ansell as a respondent to proceedings commenced by the applicant against a third party. The application was heard by Kay J in the Supreme Court of Victoria.

The central legal issue before the Court was whether it had the power to join Ansell as a respondent to the existing proceedings, and if so, whether it was appropriate to exercise that power in the circumstances. This involved considering the relevant rules of court and the principles governing joinder of parties.

Kay J dismissed the application, finding that the applicant had not satisfied the requirements for joining Ansell as a respondent. The Court determined that the applicant had failed to demonstrate that Ansell had a sufficient interest in the proceedings or that their joinder was necessary for the determination of the real questions in dispute between the existing parties. The Court applied established principles regarding the joinder of parties, emphasizing the need for a direct interest in the subject matter of the litigation.

The application filed on 20 August 2007 was dismissed.

Orders

Orders of the court

That the application filed 20 August 2007 is dismissed.

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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