Dobbs and Brayson

[2008] FamCAFC 53

FAMILY COURT OF AUSTRALIA

DOBBS & BRAYSON [2008] FamCAFC 53

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Contravention application by father – Mother convicted of contravention of parenting orders – Appeal allowed – Question remained of what should be done with the father’s application – Some irregularity in proceedings at first instance – Mother already served two months’ imprisonment –  In a further appeal against the parenting orders upon which the father’s contravention application was founded, the Full Court discharged the relevant parenting orders – Parties directed to file written submissions – Application for contravention dismissed

APPELLANT: MS DOBBS

RESPONDENT: MR BRAYSON

FILE NUMBER: NCM 3952 of 2002

APPEAL NUMBER: NA 33 of 2007

DATE DELIVERED: 2 May 2008

PLACE DELIVERED: BRISBANE

JUDGMENT OF: FINN, WARNICK & BOLAND JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 23 March 2007

LOWER COURT MNC: [2007] FMCAfam 193

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr Comerford

SOLICITORS FOR THE APPELLANT: Parker Kissane & Gibson

SOLICITOR FOR THE RESPONDENT: Mr Tester

SOLICITORS FOR THE RESPONDENT: Stephen Tester & Associates

Orders

1. That the application for contravention, filed by the father on 17 January 2007 in the Federal Magistrates Court of Australia, be dismissed.

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

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 33 of 2007
File Number: NCM 3952 of 2002

MS DOBBS

Appellant

And

MR BRAYSON

Respondent

REASONS FOR JUDGMENT

1. On 17 May 2007, we made orders that set aside orders of Jarrett FM in respect of a contravention application brought by Mr Brayson against Ms Dobbs, in respect of alleged breaches of parenting orders relating to their two children.

2. Our reasons for those orders were delivered on 27 October 2007, when we also made directions as to submissions about the future course of the father’s contravention application referred to above.  In our reasons, we said:

   134.There are some difficulties with a re-exercise of discretion.  …we have not seen the parties, nor been addressed on the evidence, in light of the standard of proof being “beyond reasonable doubt” (although we recognise that the contravention itself was admitted).  We would need to examine for ourselves the transcript to consider whether the mother’s excuse was established, on the balance of probabilities.

   135.As stated earlier, we are also concerned, whether on a re-exercise of discretion or remission, about any use of statements made by the mother in response to questions asked of her by Jarrett FM, without any indication as to whether she was or was not obliged to respond, nor as to the possible consequences that might flow from her answers.

   136.This concern may be a basis for a permanent stay of the father’s contravention application, but we have not been addressed about such a matter nor about our power under s 94(2) to make such an order.

   137.In the circumstances we intend to invite the parties to make further submissions about the course we should now take.  However, if we are not persuaded otherwise, we incline to the view that in all the circumstances, including that the mother has already spent two months in prison, the only further order necessary is that the father’s application for contravention be dismissed.

3. On 9 November 2007, in an appeal against the parenting orders upon which the father’s contravention application was founded, the Full Court (Warnick, Boland and Carmody JJ) discharged the relevant parenting orders.

4. Pursuant to the directions for further submissions, the mother (through her solicitors) has submitted:

   1.That the Full Court of the Family Court on the 9^th November 2007 discharged the Orders of Justice Jordan dated the 12^th December 2006.  This being the case the contravention Order of Federal Magistrate Jarrett dated the 23^rd March 2007 no longer stands.

   2.Notwithstanding the discharging of the Orders on the 9^th November 2007, the appellant mother has shown evidence of reasonable cause and excuse that she was unable to afford travel in order to comply with the Orders of Justice Jordan dated the 12rth December 2006.  Please refer to paragraphs 96 to 104 of the Full Court of the Family Court’s Reasons for Judgment dated the 25^th October 2007.

5. The solicitor for the father stated:

   …I do not wish to be heard further in relation to the contravention.

6. We express no conclusions about the further submissions for the mother, but in view of what we said in our reasons of 27 October 2007 and the father’s position, we intend to dismiss the father’s contravention application.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  2 May 2008