Ackersley & Rialto - [2009] FamCA 817

FAMILY COURT OF AUSTRALIA

ACKERSLEY & RIALTO

[2009] FamCA 817

FAMILY LAW – CONTRAVENTION – Obligations created by orders – Reasonable excuse – Children deciding what parts of orders they will follow – Obligations on parents regardless of wishes of children

Family Law Act 1975 (Cth)

Elspeth and Peter; Mark and Peter; and John and Peter (2007) FamCA 655
In the Marriage of Gaunt (1978) FLC 90-468
McClintock and Levier (2009) FLC 93-401
O’Brien and O’Brien (1993) FLC 92-396
Stevenson and Hughes (1993) FLC 92-363

APPLICANT:

Mr Ackersley

RESPONDENT:

Ms Rialto

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

835

2009

DATE DELIVERED:

3 September 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

18 AUGUST 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS STEWART

SOLICITOR FOR THE APPLICANT:

KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT:

MR WEIL

SOLICITOR FOR THE RESPONDENT:

WILLIAM J KEOUGH

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS SMITH

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

That the allegations numbered 1 and 3 of the contravention application filed by the husband on 30 July 2009 are dismissed.
That allegations 2 and 4 of the said contravention application are found proved.
That the allegations referred to in paragraph 2 of these orders are established pursuant to sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth).
That pursuant to s 70NEB(1), each of the husband and the wife forthwith enrol in an approved post-separation parenting program to be organised by the Independent Children’s Lawyer.
That upon the Independent Children’s Lawyer being advised of the confirmation by each party separately of having enrolled in the post-separation parenting program, she shall notify the Registry Manager of the Melbourne Registry of the Family Court of Australia of such enrolment details.
That upon the advice referred to in paragraph (5) of these orders by the Registry Manager, the Registry Manager is directed to provide notification of the post-separation parenting program provider the details of the making of this order in respect of both husband and the wife.
That in addition to the obligations referred to in the existing parenting orders, the wife shall deliver the children to the husband at any time that they return to her or to where she has knowledge of their whereabouts if they absent themselves from the husband’s care during any time under which they are his responsibility pursuant to the orders of this Court.
That subject to paragraph (10) of these orders, the application in a case filed by the wife on 27 July 2009 be adjourned to the final hearing on 8 October 2009 at 10.00am.
That any application for costs by either party be by way of written submission. Such submissions to be filed and served by 4.00pm on 11 September 2009 and any reply to the submissions be filed and served by no later than 4.00pm on 18 September 2009 and any such determination arising out of those submissions be by…

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 Ackersley & Rialto

Details

AGLC: Ackersley & Rialto [2009] FamCA 817
Case: [2009] FamCA 817
Decision Date: 3 September 2009

CaseChat Overview and Summary

In the matter of *Ackersley & Rialto*, heard before Justice Cronin, the dispute concerned allegations of contravention of parenting orders. The husband filed a contravention application on 30 July 2009, and the wife filed an application on 27 July 2009.

The court was required to determine whether the husband had contravened the existing parenting orders, and if so, to what extent. The court also considered the wife's application, which was adjourned to a later date. A key issue was the appropriate response to proven contraventions, including the potential for mandatory parenting programs and specific directions regarding the children's care.

Justice Cronin found that allegations numbered 1 and 3 of the husband's contravention application were not proved, but allegations 2 and 4 were proved. These proved contraventions were established pursuant to sub-division E of Division 13A of Part VII of the *Family Law Act 1975* (Cth). The court ordered both parties to enrol in an approved post-separation parenting program, with the Independent Children’s Lawyer to organise this and notify the Registry Manager upon confirmation of enrolment. The Registry Manager was then directed to inform the parenting program provider of the court's orders. The wife was also ordered to deliver the children to the husband at any time they returned to her or their whereabouts were known if they absented themselves from the husband's care during his responsibility. The wife's application was adjourned to a final hearing, and directions were given for written submissions regarding costs.

Orders

Orders of the court

That the allegations numbered 1 and 3 of the contravention application filed by the husband on 30 July 2009 are dismissed.

That allegations 2 and 4 of the said contravention application are found proved.

That the allegations referred to in paragraph 2 of these orders are established pursuant to sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth).

That pursuant to s 70NEB(1), each of the husband and the wife forthwith enrol in an approved post-separation parenting program to be organised by the Independent Children’s Lawyer.

That upon the Independent Children’s Lawyer being advised of the confirmation by each party separately of having enrolled in the post-separation parenting program, she shall notify the Registry Manager of the Melbourne Registry of the Family Court of Australia of such enrolment details.

That upon the advice referred to in paragraph (5) of these orders by the Registry Manager, the Registry Manager is directed to provide notification of the post-separation parenting program provider the details of the making of this order in respect of both husband and the wife.

That in addition to the obligations referred to in the existing parenting orders, the wife shall deliver the children to the husband at any time that they return to her or to where she has knowledge of their whereabouts if they absent themselves from the husband’s care during any time under which they are his responsibility pursuant to the orders of this Court.

That subject to paragraph (10) of these orders, the application in a case filed by the wife on 27 July 2009 be adjourned to the final hearing on 8 October 2009 at 10.00am.

That any application for costs by either party be by way of written submission. Such submissions to be filed and served by 4.00pm on 11 September 2009 and any reply to the submissions be filed and served by no later than 4.00pm on 18 September 2009 and any such determination arising out of those submissions be by order in chambers.

10.

That each party have liberty to apply in respect of these orders.

IT IS CERTIFIED:

11.

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

12.

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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