AIDEN & GRANT - [2017] FamCAFC 44

FAMILY COURT OF AUSTRALIA

AIDEN & GRANT

[2017] FamCAFC 44

FAMILY LAW – APPEAL – CHILDREN – CONTRAVENTION – Where the trial judge found that the mother had contravened parenting orders – Where the trial judge ordered 21 days compensatory time – Where subsequent orders had substantially altered the orders the subject of the appeals – Where neither appeal raises any competent challenge to his Honour’s orders – Appeals dismissed – No order as to costs.

Family Law Act 1975 (Cth) s 11F

APPELLANT:

Ms Aiden

RESPONDENT:	Mr Grant
INDEPENDENT CHILDREN’S LAWYER:	McKean Park Lawyers

FILE NUMBER:

MLC

5094

2008

FIRST APPEAL NUMBER:

SOA

2016

SECOND APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

24 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Ainslie-Wallace & Murphy JJ

HEARING DATE:

20 February 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 March 2016

29 April 2016

LOWER COURT MNC:

[2016] FamCA 197
[2016] FamCA 656

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers (did not seek to be heard on the appeals)

Orders

The father have leave to rely on his summary of argument filed on 12 December 2016.
Appeal SOA 30 of 2016 against the orders of Cronin J made on 22 March 2016 be dismissed.
Appeal SOA 37 of 2016 against the orders of Cronin J made on 29 April 2016 be dismissed.
There be no order as to costs.

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 Aiden & Grant 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 30 of 2016; SOA 37 of 2016
File Number: MLC 5094 of 2008

Ms Aiden

Appellant

and

Mr Grant

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ms Aiden (“the mother”) appeals against orders made by Cronin J on 22 March 2016 and 29 April 2016. The orders concluded contravention proceedings brought by Mr Grant (“the father”) against the mother in relation to the child of the parties, V, who was born in 2006. The mother appeals both orders.
Interim parenting orders were made in relation to the child in December 2008. In May 2009 the mother was placed on a bond for a period of two years consequent on a finding that she had failed to comply with these orders without reasonable excuse. The bond required the mother to be of good behaviour and to comply with the parenting orders for the term of the bond.
On 4 February 2011 final parenting orders were made by the court. These orders contained a notation that a “basic regime” of orders had been agreed between the parties. This “regime” provided for the child to live with the mother and spend each alternate weekend from 5.00 pm Friday until 4.30 pm Sunday, and each alternate Wednesday for two and a half hours, with the father. The orders further provided for the father to collect the child from after school care.
In February 2013 the mother was found to have contravened the February 2011 parenting orders and, again, was placed on a bond to be of good behaviour and to comply with the orders for two years. While these orders also slightly varied the orders of 4 February 2011, there is no relevant impact on the subject matter of the appeal.
On 22 February 2016 the father filed an Amended Contravention Application asserting that the mother had, again, on 11 occasions failed to comply with the orders that the child spend time with him. The first of these contraventions was struck out, and the remaining 10 were considered by his Honour.
The mother agreed that she did not make the child available to see the father in accordance with the orders but claimed that she had a reasonable excuse for doing so.
During the course of the hearing before the trial judge it was revealed that the mother had unilaterally removed the child from Victoria and taken her to Queensland to live with relatives of the mother. The mother then failed to appear on the next court date, providing the court with a medical certificate written several days earlier.
On 22 March 2016 the trial judge found the contraventions established and arranged for the preparation of an assessment of the child pursuant to s 11F of the Family Law Act 1975 (Cth) to determine if compensatory time would be an appropriate order taking into account the child’s best interests. His Honour further ordered that the child be returned by the mother to live in Victoria and to resume her place at school.
On 29 April 2016 the trial judge concluded that compensatory time should take place and accepted the submission of the father and the Independent Children’s Lawyer that it be a block period of 21 days. His Honour also ordered that the child be brought to the court for the purposes of that time commencing.
The balance of the parenting issues were then listed for hearing and on 4 August 2016 a Senior Registrar of the Court made an interim order that that the child live with the father and spend time with the mother. No appeal has been brought from this order.
Thus, at the time of the appeal hearing the child had been living with the father for a period of six months.
All of the outstanding parenting issues are listed for final hearing on 20 March 2017.
In the circumstances where subsequent orders had substantially altered the orders the subject of the appeals, the child had been living with the father since August 2016 in accordance with those new orders, and a final hearing was to occur in less than a month, we could not see any utility in the appeals proceeding.
Nonetheless, the mother said that she wished to press the appeals. We understand that she wishes to have the contravention “orders” discharged and, in effect, her “slate wiped clean”. This expression may reflect the mother’s desire to have the appeals heard on their merits. However, both appeals are devoid of merit.
The asserted grounds of appeal are difficult to understand, and regrettably neither the mother’s written or oral submissions illuminate the challenges in any helpful way. For example, the mother argued that she had not admitted contravening the orders but agreed that she had not provided the child to spend time with the father in accordance with the orders. She appeared to be distinguishing between what she said were “words” and “contraventions” and thus she argued the trial judge was wrong to find she had admitted the contraventions.
The mother further asserted that in ordering compensatory time, which was expressed to be “pending further order”, the trial judge had “merged” the issue of compensatory time and the parenting issues, with the effect that he had ordered a change in the child’s residence. This assertion reflects a misinterpretation of his Honour’s orders and has no merit.
Finally, no specific challenge is raised in the grounds in relation to his Honour’s findings, nor in our view could they be challenged because they were clearly open on the evidence before him.
Thus, neither the grounds of appeal, nor the oral or written submissions of the mother, satisfy us that either appeal raises any question of general principle, or any competent challenge to his Honour’s orders. Accordingly both appeals shall fail.
For completeness, we note that at the commencement of her oral submissions the mother objected to the father’s summary of argument being relied on because it was filed out of time. The summary was due to be filed by 3 November 2016, pursuant to procedural orders made by the Appeals Registrar on 26 August 2016. The summary was not filed until 12 December 2016, and the mother asserts that it was not served on her until 19 January 2017. The mother complained that by reason of the late filing she did not have as much time to read and digest the father’s submissions as if the summary had been filed within time. The father referred to miscommunications with his new legal representatives and difficulties in getting copies of the document for service as explaining the delay.
We noted the mother’s objection but allowed the father to rely on his summary of argument and continued to hear the appeals. The mother’s assertion that she was not given as much time as the orders provided to read the summary is correct, but the summary of argument was filed a full month before the appeal was listed for hearing. This provided the mother ample time to consider the father’s argument.

Costs

The father did not seek costs were the appeal to fail and accordingly no costs order need be made.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie‑Wallace & Murphy JJ) delivered on 24 March 2017.

Associate:

Date: 24 March 2017