ADAMS & ADAMS - [2018] FamCA 208

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS

[2018] FamCA 208

FAMILY LAW – CONTRAVENTION – Penalty – Whether to deal with the matter under the Family Law Act 1975 (Cth) Part VII Division 13A Subdivision E as a less serious contravention or Part VII Division 13A Subdivision F as a more serious contravention – Where the court must consider matters relating to penalty – Whether there is a reasonable excuse for the contravention of the orders – Where the contravention is exacerbated by breach of an existing bond – Whether to amend existing parenting orders pursuant to s 70NBA of the Family Law Act 1975 (Cth)

FAMILY LAW – COSTS – Where the father seeks that the mother pay the costs of the contravention application – Consideration of the financial circumstances of the parties – Consideration of s 117(2A) of the Family Law Act 1975 (Cth) – Whether one party was wholly unsuccessful in the proceedings – Whether costs should be assessed or taxed – Costs on a party-party basis

Family Law Act 1975 (Cth) Pt VII div 13A, ss 62B, 65DA(2), 70NBA, 70NFA, 70NFA(2), 70NFA(3), 70NFB, 117, 117(2A)

Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
McClintock & Levier (2009) FLC 93-401

APPLICANT:

Mr Adams

RESPONDENT:

Ms Adams

FILE NUMBER:

ADC

4741

2010

DATE DELIVERED:

9 March 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

9 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dillon

SOLICITOR FOR THE APPLICANT:

Bersee Legal

COUNSEL FOR THE RESPONDENT:

Mr Praolini

SOLICITOR FOR THE RESPONDENT:

ASW Lawyers

Orders

That within 7 days from today’s date MS ADAMS (the mother) enter into a Bond for a period of two (2) years without surety but with ONE THOUSAND DOLLARS ($1000) as security:-
a.to be of good behaviour during period of the Bond;
b.to comply with all current and future parenting orders.

That the father’s costs of the Application for Contravention be agreed or taxed.
The Application for Contravention filed by the father on 8 March 2018 be adjourned for mention on 18 April 2018 at 9am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adams & Adams has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4741 of 2010

Mr Adams

Applicant

And

Ms Adams

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ms Adams is the mother of S born … 1997 (“S”) and L born … 2007(“L”) (collectively “the children”). S is now over…

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 ADAMS & ADAMS

Details

AGLC: ADAMS & ADAMS [2018] FamCA 208
Case: [2018] FamCA 208
Decision Date: 9 March 2018

CaseChat Overview and Summary

In this matter before Berman J, the father alleged contravention of parenting orders by the mother. The central dispute concerned the appropriate penalty for the mother's contraventions, specifically whether to treat them as less serious or more serious contraventions under Part VII Division 13A of the *Family Law Act 1975* (Cth), and whether the mother had a reasonable excuse for her conduct, which was exacerbated by a breach of an existing bond. The court also considered the father's application for costs of the contravention proceedings and the mother's application to amend existing parenting orders.

The legal issues before the court were whether the mother had contravened the parenting orders, and if so, what penalty was appropriate, considering the factors outlined in the Act for both less serious and more serious contraventions. The court was required to determine if there was a reasonable excuse for the contraventions and whether to impose a bond, as well as whether to amend the existing parenting orders. Furthermore, the court had to consider the father's claim for costs of the contravention application, taking into account the parties' financial circumstances and the provisions of s 117(2A) of the *Family Law Act 1975* (Cth).

Berman J reasoned that the mother had contravened the parenting orders and that the contraventions were not excused. The court determined that a bond was an appropriate measure to ensure future compliance with parenting orders. The court ordered that the mother enter into a two-year bond without surety, but with $1000 as security, requiring her to be of good behaviour and to comply with all current and future parenting orders. The father's costs of the contravention application were to be agreed or taxed. The application for contravention was adjourned for mention.

Orders

Orders of the court

That within 7 days from today’s date MS ADAMS (the mother) enter into a Bond for a period of two (2) years without surety but with ONE THOUSAND DOLLARS ($1000) as security:-

a. to be of good behaviour during period of the Bond;

b. to comply with all current and future parenting orders.

That the father’s costs of the Application for Contravention be agreed or taxed.

The Application for Contravention filed by the father on 8 March 2018 be adjourned for mention on 18 April 2018 at 9am.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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