FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adelstein & Byron [2024] FedCFamC2F 1253
File number(s): SYC 845 of 2024 Judgment of: JUDGE STEWART Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – PARENTING – Contravention – Mother concedes all charged contraventions without reasonable excuse – Mother argues no sanction should apply – Mother refuses to enter bond – Father seeks maximum penalty – Mother has previously been found to have contravened orders without reasonable excuse – Sanction necessary – Degree of appropriate penalty – Whether a fine can be order in lieu of bond – Where it is found that a bond must be ordered first, and a fine can only occurred after a party has failed to enter the ordered bond – Father seeks costs – Costs awarded – Whether claimed costs are reasonable Legislation: Crimes Act 1914 (Cth) ss 4AA, 16A(2)
Evidence Act 1995 (Cth) s 138
Family Law Act 1975 (Cth) ss 70NBF, 70NBF(1)(b) 70NBF(1)(d), fmr 70NEB, fmr 70NEB(1)(d), fmr 70NEB(1)(da), fmr 70NEC, 102NA, 102NA(2), 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) sched 1
Crimes (Amount of Penalty Unit) Instrument 2023 (Cth)
Surveillance Devices Act 2007 (NSW) ss 7, 7(3)(b)(i)
Cases cited: Amador & Amador (2009) 43 Fam LR 268
Arena & Arena (No 6) [2024] FedCFamC1F 364
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584; 161 CLR 98
Dinsdale v The Queen (2000) 202 CLR 321
Dobbs & Brayson [2007] FamCA 1261; (2007) FLC 93-346
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22
G and G (1981) FLC 91-042
Galvis & Galvis [2024] FedCFamC1A 123
Gravis v Major [2010] FamCAFC 239
In the Marriage of Schwarz (1985) 10 Fam LR 235; FLC 91-618
Langer & Griffin [2013] FamCAFC 170; (2013) FLC 93-559
McClintock v Levier (2009) FLC 93-401
Mead v Mead (2007) 235 ALR 197
Stanley v DPP (NSW) (2023) 407 ALR 222
R v Storey [1998] 1 VR 359
Tate & Tate (No 3) [2003] FamCA 112; (2003) FLC 93-138
Weininger v The Queen [2003] 212 CLR 629
Zamir & Zamir (2022) FLC 94-115
Division: Division 2 Family Law Number of paragraphs: 87 Date of hearing: 15 August 2024 Place: Melbourne Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Boyce and Boyce Counsel for the Respondent: Mr Lidden Solicitor for the Respondent: Sharah and Associates Solicitors and Conveyancers ORDERS
SYC 845 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ADELSTEIN
Applicant
AND: MS BYRON
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.THE COURT FINDS THAT the Respondent Mother has, without reasonable excuse, contravened order 4(c) of the orders made on 31 January 2022 under the Family Law Act 1975 (Cth), in that on 11 December 2023 the Respondent Mother did not facilitate the child X born in 2015 (“X”) spending time with the Applicant…
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CaseChat Overview and Summary
The court was required to determine whether the Mother had contravened the parenting orders without reasonable excuse, and if so, what the appropriate penalty should be. The court considered the Mother's history of non-compliance and the need for a sanction to ensure future compliance. The court also needed to decide whether a fine could be ordered in lieu of a bond, and if so, under what circumstances. Additionally, the court had to consider the Father's application for costs and whether those costs were reasonable.
The court found that the Mother had indeed contravened the parenting orders without reasonable excuse on two separate occasions. It concluded that a sanction was necessary to ensure future compliance, and a bond was the appropriate penalty to impose initially. The court determined that a fine could only be ordered after the Mother had failed to enter the required bond. The court also found that the costs claimed by the Father were reasonable and awarded them to him. Consequently, the court ordered the Mother to enter into bonds for six months each, to be served consecutively, and to pay the Father's costs of the application.
The court made several orders, including finding that the Mother had contravened the parenting orders, ordering her to enter into bonds, setting a date for the Mother to sign the bonds, and listing the matter for a mention to ascertain compliance with the orders. The court also amended the Final Parenting Orders to provide greater clarity regarding changeover times, particularly during school holiday periods. Finally, the court ordered the Mother to pay the Father's costs of the application in the sum of $9,345.16.
Orders
Orders of the court
SYC 845 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ADELSTEIN
Applicant
AND:
MS BYRON
Respondent
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. THE COURT FINDS THAT the Respondent Mother has, without reasonable excuse, contravened order 4(c) of the orders made on 31 January 2022 under the Family Law Act 1975 (Cth), in that on 11 December 2023 the Respondent Mother did not facilitate the child X born in 2015 (“X”) spending time with the Applicant Father.
2. THE COURT FINDS THAT the Respondent Mother has, without reasonable excuse, contravened order 4(c) of the orders made on 31 January 2022 under the Family Law Act 1975 (Cth), in that on 12 December 2023 the Respondent Mother did not facilitate X spending time with the Applicant Father.
3. By no later than close of business on Thursday 19 September 2024, the Respondent Mother shall enter into the following bonds:-
(a) in respect of the contravention that occurred on 11 December 2023, for a period of SIX MONTHS upon the condition that the Respondent Mother shall comply with all current and future parenting orders; and
(b) in respect of the contravention that occurred on 12 December 2023, for a period of SIX MONTHS upon the condition that the Respondent Mother shall comply with all current and future parenting orders;
with such bonds to be served consecutively, first the bond in respect of the 11 December 2023 contravention and second the bond in respect of the 12 December 2023 contravention.
4. An appointment be made for the Respondent Mother to sign the bonds pursuant to order 3 hereof at 9.00am on Thursday 19 September 2024.
5. The proceedings be listed for Mention at 9.15am on Friday 20 September 2024 via Microsoft Teams before Her Honour Judge Stewart (AND THE COURT NOTES THAT the purpose of the Mention is to ascertain whether the Respondent Mother has entered into the bonds pursuant to order 3 and 4 hereof and, if the Respondent Mother has not done so, to consider appropriate penalty).
6. The Final Parenting Orders dated 31 January 2022 (“the Final Parenting Orders”) be amended as follows:-
(a) order 4(c) of the Final Parenting Orders be amended to read: “From the commencement of the second week of term 1 in the 2023 school year and in each alternate week thereafter, during all school terms, and during all school holiday periods at the conclusion of Terms 1, 2, and 3 of each year, from the conclusion of school on Wednesday (or 4:00pm if a non-school day) to the conclusion of school the following Wednesday (or 4:00pm if a non-school day)”;
(b) order 4(d) of the Final Parenting Order be amended to read: “During the long summer school holiday period at the conclusion of Term 4, for the first half of the school holiday period in all even-numbered years and the second half of the school holiday period in odd-numbered years, and the following shall also apply:-
(i) regardless of the actual final school day of Term 4 each year, the Term 4 school holiday period shall commence at the conclusion of the last Wednesday during Term 4, and shall conclude at the commencement of the first Wednesday during Term 1 the following year;
(ii) changeover during the long summer school holiday period shall occur at 4:00pm on the middle day of the Term 4 school holiday period (if the holiday period has an odd number of days), or on the last day of the first half (if the holiday period has an even number of days); and
(iii) if the parent with whom the child is to spend the first half of the Term 4 school holiday period also had care of the child in the week immediately proceeding the Term 4 school holiday period, then the first changeover for Term 1 in the subsequent year shall occur on the second Wednesday of Term 1 and each Wednesday therefore, otherwise the first changeover for Term 1 shall occur on the first Wednesday of Term 1, and in either case changeovers shall continue each Wednesday thereafter.”; and
(c) Order 4(e) of the Final Parenting Orders be inserted to read: “All changeovers that do not occur at the child’s school shall occur at [Suburb G] Shopping Centre at the conclusion of the child’s time with the Father, and at [Suburb P] Shopping Centre at the conclusion of the child’s time with the Mother.”
7. The Mother pay the Father’s costs of this application, fixed in the sum of $9,345.16.
AND THE COURT NOTES THAT:
A. The parties have had historical difficulties implementing the terms of the Final Parenting Orders, particularly as regards changeover around school holiday periods.
B. The Applicant Father does not seek, at this stage, to amend the quantum of time that X spends with each party.
C. The proposed amendments to the Final Parenting Orders set out at Order 4 above give clarity to exactly when changeover shall occur throughout the year.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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