Akayev & Akayev (No 2) - [2022] FedCFamC2F 358

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Akayev & Akayev (No 2) [2022] FedCFamC2F 358

File number(s): CRC 349 of 2021

Judgment of: JUDGE DICKSON

Date of judgment: 28 March 2022

Catchwords:
FAMILY LAW – CONTRAVENTION – Amended Application for Contravention brought by father against the mother for alleged breaches of final parenting orders – where certain counts of the father’s Application have already been dismissed – where the remaining counts relate to issues of a breach of orders relating to the children’s long term welfare and consulting the father with respect to the children’s health and place of residence – where on the mother’s evidence count 1 is not established and should be dismissed – where on the evidence counts 2 and 5 are made out – where the mother did not have reasonable excuse for counts 2 and 5 – where this is the mother’s first offence and no penalty should be imposed

FAMILY LAW – COSTS – where both parties seek costs against the other either on a party-party basis or in accordance with the Schedule in the Rules – where both parties have been equally successful and unsuccessful in their respective applications before the Court – where each party should bear their own costs of and incidental to the applications

Legislation: Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 4, 70NAC, 70NCA, 70NAE, 70NAF, 70NEA, 70NFB, 70NFE

Cases cited: Keehan & Keehan [2019] FamCAFC 250; (2019) 60 Fam LR 276
McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; (2009)
Ongal & Materns [2015] FamCAFC 68; (2015) FLC 93-645; (2015) 54 Fam LR 87
Seaward & MacDuff [2011] FamCA 1041
Taikato v R [1996] HCA 28; (1996) 186 CLR 454

Division: Division 2 Family Law

Number of paragraphs: 72

Date of last submission/s: 3 March 2022

Date of hearing: 3 March 2022

Place: Adelaide

Counsel for the Applicant: Mr Priestley

Solicitor for the Applicant: MBT Lawyers

Counsel for the Respondent: Mr O’Brien

Solicitor for the Respondent: Bryant McKinnon Lawyers
ORDERS

CRC 349 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR AKAYEV

Applicant

AND:
MS AKAYEV

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

28 MARCH 2022

UPON NOTING THE COURT FINDINGS:
A.That between 11 September 2020 and 31 January 2021 the mother did not contravene order 2 of the orders made by consent on 24 May 2019.
B.That between 19 November 2020 and 4 December 2020 the mother contravened without reasonable excuse order 2 of the orders made by consent on 24 May 2019.
C.That between 14 September 2020 and 27 August 2021 the mother contravened without reasonable excuse order 17 of the orders made by consent on 24 May 2019.

THE COURT ORDERS THAT:
1.In respect of the finding of a contravention of order 2 of the orders made on 24 May 2019, no penalty be imposed.
2.In respect of the finding of a contravention of order 17 of the orders…

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 Akayev & Akayev (No 2)

Details

AGLC: Akayev & Akayev (No 2) [2022] FedCFamC2F 358
Case: [2022] FedCFamC2F 358
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) was presented with an Amended Application for Contravention filed by the father, Mr Akayev, against the mother, Ms Akayev, alleging breaches of final parenting orders made by consent on 24 May 2019. The primary dispute centred on whether Ms Akayev had contravened specific provisions of the consent orders concerning the children's long-term welfare and health information. The Court was required to determine whether Ms Akayev had contravened the orders and, if so, whether she had a reasonable excuse for doing so. The father sought penalties for the contraventions, while both parties requested costs.

After a detailed examination of the evidence, the Court dismissed Count 1 of the Application, which alleged a breach related to the relocation of the children's residence, finding no evidence of such relocation. Counts 2 and 5, however, were upheld, as Ms Akayev admitted to not following the required consultation processes for decisions affecting the children's education and health, respectively. The Court found that Ms Akayev did not have a reasonable excuse for these contraventions, despite her argument that she misunderstood the orders. The Court concluded that no penalty should be imposed as this was Ms Akayev's first offence and considering the highly toxic relationship between the parties.

Regarding costs, the Court found that both parties had been both successful and unsuccessful in their respective applications. Therefore, each party was ordered to bear their own costs of and incidental to the proceedings. The Court emphasized the importance of enforcing future compliance with the parenting orders rather than punishing the mother for this instance of non-compliance.

Orders