Ackland and Ackland - [2007] FMCAfam 693

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ACKLAND & ACKLAND

[2007] FMCAfam 693

FAMILY LAW – Contravention – recent consent order not complied with – no reasonable excuse – penalty – make up time – costs.

Family Law Act 1975

Gaunt & Gaunt (1978) FLC 90-468

Applicant:

MR ACKLAND

Respondent:

MS ACKLAND

File Number:

NCC1647 of 2007

Judgment of:

Kelly FM

Hearing date:

19 June 2007

Date of Last Submission:

21 June 2007

Delivered at:

Newcastle

Delivered on:

21 June 2007

REPRESENTATION

Counsel for the Applicant:

Mr Brady

Solicitors for the Applicant:

Renfrew Solicitors

Counsel for the Respondent:

Mr Bateman

Solicitors for the Respondent:

Winders Lawyers

ORDERS

The respondent mother contravened paragraph 2 (i) the Orders made in the Federal Magistrates Court of Australia at Newcastle on 7 May 2007 by failing to make J available to spend time with the father without reasonable excuse.
Pursuant to s.70NEB(1)(d) the mother enter into a bond to be of good behaviour and to comply with orders of the Court for a period of 12 months, with a surety in the sum of $500.00.
a.Both parents within 7 days contact the program provider Unifam and arrange an appointment as soon as possible for an initial assessment as to suitability for the post separation parenting program called Parenting Orders Program.
b.Both parents must attend the appointment for the initial assessment at any reasonable time and place nominated by the provider.
c.If assessed as suitable for a program or part of a program and the program provider nominates a particular program for the parties to attend, they must each attend that program or part of the program (as the case may be) as soon as practicable.
The orders of 7 May 2007 are varied to the extent that J spend time with his father as follows:
a.from 10.00am on Saturday 23 June 2007 until 5.30pm on Saturday 23 June 2007.
b.from 10.00am on Saturday 30 June 2007 until 5.30pm on Sunday 1 July 2007.
c.from 10.00am on Friday 6 July 2007 until 5.30 on Sunday 8 July 2007.
d.from 10.00am on Thursday 13 July 2007 until 5.30pm Sunday 15 July 2007.
J spend compensatory time with the father in the October 2007 school holidays from 5.30pm Friday 28 September until 5.30pm on Saturday 13 October 2007.
The orders of 7 May 2007 otherwise resume in full force and effect with alternate weekends pursuant to paragraph 2 (i) to recommence on Friday 20 July 2007.
The mother is to pay the father’s costs in these proceedings of $2,500.00, to be paid to the father through his solicitors, Renfrew Solicitors, on or before 30 October 2007.
J’s time spent with the father pursuant to these orders and the orders of 7 May 2007 is subject to the following conditions;
a.The father ensures J has his own bed and sleeps in his bed each night.
b.J not shower or bathe with the father.
The parties participate in child inclusive family dispute resolution appointments pursuant to s.13C with a family consultant…

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 Ackland and Ackland

Details

AGLC: Ackland and Ackland [2007] FMCAfam 693
Case: [2007] FMCAfam 693
Decision Date: 21 June 2007

CaseChat Overview and Summary

The matter before the court involved a dispute between the parents of a child, J. The father alleged that the mother had failed to allow J to spend time with him as per the orders made by the Federal Magistrates Court of Australia on 7 May 2007. The court had to determine whether the mother had contravened the orders and what orders, if any, should be made in response to this alleged contravention.

The central legal issue before the court was whether the mother had contravened the orders by failing to make J available to spend time with the father. Additionally, the court had to consider what orders should be made in response to this alleged contravention and whether any other orders should be made to ensure the welfare of the child.

The court found that the mother had indeed contravened the orders by failing to make J available to spend time with the father. The court ordered the mother to enter into a bond to be of good behaviour and to comply with orders of the Court for a period of 12 months, with a surety of $500. The court also ordered both parents to participate in a post separation parenting program and to attend family dispute resolution appointments. The court varied the orders of 7 May 2007 to specify the times J would spend with his father and to include conditions for these times. The court further ordered the mother to pay the father’s costs in these proceedings and made orders for compensatory time for J to spend with his father during the October 2007 school holidays.

The orders of the court included a contravention finding against the mother for failing to make J available to spend time with the father, a bond for the mother to comply with court orders, specific arrangements for J to spend time with his father, costs to be paid by the mother, conditions for J’s time with his father, participation in a parenting program and family dispute resolution appointments, and an adjournment of the mother’s application.

Orders

Orders of the court

The respondent mother contravened paragraph 2 (i) the Orders made in the Federal Magistrates Court of Australia at Newcastle on 7 May 2007 by failing to make J available to spend time with the father without reasonable excuse.

Pursuant to s.70NEB(1)(d) the mother enter into a bond to be of good behaviour and to comply with orders of the Court for a period of 12 months, with a surety in the sum of $500.00.

a. Both parents within 7 days contact the program provider Unifam and arrange an appointment as soon as possible for an initial assessment as to suitability for the post separation parenting program called Parenting Orders Program.

b. Both parents must attend the appointment for the initial assessment at any reasonable time and place nominated by the provider.

c. If assessed as suitable for a program or part of a program and the program provider nominates a particular program for the parties to attend, they must each attend that program or part of the program (as the case may be) as soon as practicable.

The orders of 7 May 2007 are varied to the extent that J spend time with his father as follows:

a. from 10.00am on Saturday 23 June 2007 until 5.30pm on Saturday 23 June 2007.

b. from 10.00am on Saturday 30 June 2007 until 5.30pm on Sunday 1 July 2007.

c. from 10.00am on Friday 6 July 2007 until 5.30 on Sunday 8 July 2007.

d. from 10.00am on Thursday 13 July 2007 until 5.30pm Sunday 15 July 2007.

J spend compensatory time with the father in the October 2007 school holidays from 5.30pm Friday 28 September until 5.30pm on Saturday 13 October 2007.

The orders of 7 May 2007 otherwise resume in full force and effect with alternate weekends pursuant to paragraph 2 (i) to recommence on Friday 20 July 2007.

The mother is to pay the father’s costs in these proceedings of $2,500.00, to be paid to the father through his solicitors, Renfrew Solicitors, on or before 30 October 2007.

J’s time spent with the father pursuant to these orders and the orders of 7 May 2007 is subject to the following conditions;

a. The father ensures J has his own bed and sleeps in his bed each night.

b. J not shower or bathe with the father.

The parties participate in child inclusive family dispute resolution appointments pursuant to s.13C with a family consultant provided that J’s participation is subject to the recommendation of the family consultant.

10.

The family consultant appointments be allocated upon the court being advised that the parents have completed their participation in the Parenting Orders Program.

11.

The mother’s application filed 23 May 2007 is adjourned for a directions hearing at 9.30am on 17 September 2007

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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