Venture and Venture (No.3) - [2015] FCCA 3344

FEDERAL CIRCUIT COURT OF AUSTRALIA

VENTURE & VENTURE (No.3)

[2015] FCCA 3344

Catchwords:
FAMILY LAW – Children – contravention – contravention of parenting orders – where father claims mother contravened interim parenting orders on three occasions – where one allegation admitted – whether prima facie case established.

Legislation:

Family Law Act 1975 (Cth), ss.69ZV, 70NAC, 70NAE, 70NAF, 70NEF

Federal Circuit Court Rules 2001 (Cth), r.25B.04

Cases cited:
Caballes & Tallant [2014] FamCAFC 112; (2014) FLC 93-596; (2015) 52 Fam LR 125

Applicant:

MR VENTURE

Respondent:

MS VENTURE

File Number:

SYC 433 of 2013

Judgment of:

Judge Scarlett

Hearing date:

8 December 2015

Date of Last Submission:

8 December 2015

Delivered at:

Sydney

Delivered on:

8 December 2015

REPRESENTATION

Counsel for the Applicant:

Ms Spain

Solicitors for the Applicant:

Doolan Callaghan Family Lawyers

Counsel for the Respondent:

Mr Richards

Solicitors for the Respondent:

Byrnes Lawyers

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Sydney Central Family Law

ORDERS

The Respondent mother did on 7 June 2015 contravene Order 15.4 made on 19 December 2014 in that she did make a disparaging or derogatory remark about the Applicant in the presence or hearing of the child X.
Count 2 of the Application-Contravention filed on 7 July 2015 is dismissed.
The Applicant has established a prima facie case that the Respondent has on 12 June 2015 contravened Order 15.1 made on 19 December 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 433 of 2013

MR VENTURE

Applicant

And

MS VENTURE

Respondent

REASONS FOR JUDGMENT

The proceeding before the Court is an Application by the father alleging that the Respondent mother contravened orders made by this Court on 19 December 2014.
There are three Counts, the first of which alleges that on 7 June 2015 the Respondent, without reasonable excuse, made a disparaging or derogatory remark about the Applicant in the presence or hearing of the child X. That is said to be a contravention of Order 15.4. The Respondent has admitted the allegation.
The second Count concerns a further allegation of a breach of Order 15.4, and it alleges that the contravention took place on an unspecified day in May 2015 at a time that is not known to the Applicant, at (omitted), which is the Respondent’s residence. The allegation is that the Respondent, without reasonable excuse, allowed a third party, Mr M, to make a critical, disparaging or derogatory remark about the Applicant in the presence or hearing of the child X.
The third count relates to an alleged contravention of Order 15.1 and the contravention is said to have taken place on 12 June 2015, at

6.45 am, again at the (omitted) property where the Respondent resides, and the alleged contravention is that the Respondent, without reasonable excuse, discussed the proceedings with the child X and passed a message to the Applicant…

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 Venture and Venture (No.3)

Details

AGLC: Venture and Venture (No.3) [2015] FCCA 3344
Case: [2015] FCCA 3344
Decision Date: 8 December 2015

CaseChat Overview and Summary

In *Venture and Venture (No.3)*, Judge Scarlett of the Federal Circuit Court of Australia considered an application by the Applicant father alleging contravention of court orders by the Respondent mother. The dispute concerned allegations that the Respondent mother had made disparaging remarks about the Applicant in the presence of the child, X, and had failed to facilitate the child's attendance at a specific activity.

The court was required to determine whether the Respondent mother had contravened specific orders made on 19 December 2014. Specifically, the court had to assess whether the Respondent had made disparaging or derogatory remarks about the Applicant in the presence or hearing of the child X, and whether she had failed to ensure the child's attendance at a particular activity.

Judge Scarlett found that the Respondent mother had contravened Order 15.4, which prohibited disparaging or derogatory remarks about the Applicant in the presence or hearing of the child. However, the court dismissed Count 2 of the Application-Contravention, which related to the alleged failure to facilitate the child's attendance at the specified activity, finding that a prima facie case had not been established for that particular contravention. The court did, however, find that a prima facie case had been established that the Respondent had contravened Order 15.1 on 12 June 2015.

Orders

Orders of the court

The Respondent mother did on 7 June 2015 contravene Order 15.4 made on 19 December 2014 in that she did make a disparaging or derogatory remark about the Applicant in the presence or hearing of the child X.

Count 2 of the Application-Contravention filed on 7 July 2015 is dismissed.

The Applicant has established a prima facie case that the Respondent has on 12 June 2015 contravened Order 15.1 made on 19 December 2014.

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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