ALEXANDER & TURNER - [2015] FCCA 3197

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALEXANDER & TURNER

[2015] FCCA 3197

Catchwords:
FAMILY LAW – Contravention – parties agree that some of the orders need to be varied but disagree as to what the variations should be.

Legislation:

Family Law Act 1975 (Cth), ss.69ZX, 70NBA, 70NAC, 70NAE, 70NAF(1)

Surveillance Devices Act 1999 (Vic), s.6
Evidence Act 1995 (Cth), s.138

Hughes & Hughes [2013] FamCAFC 146
DPP v Marijancevic; DPP v Preece; DPP v Preece [2011] VSCA 355
Enmore & Smoothe [2014] FamCAFC 131

Applicant:

MS ALEXANDER

Respondent:

MR TURNER

File Number:

MLC 7872 of 2007

Judgment of:

Judge Harland

Hearing dates:

11 & 24 September 2015

Date of Last Submission:

24 September 2015

Delivered at:

Melbourne

Delivered on:

2 December 2015

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Werner

Solicitors for the Respondent:

Hutchinson Legal

ORDERS

Count 1 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent on unspecified dates of Order 6(a)(i) made on 8 January 2014 is dismissed.
Count 2 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 26 September 2014 is dismissed.
Count 3 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 9 January 2015 is withdrawn and dismissed.
Count 4 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 23 January 2015 is withdrawn and dismissed.
Count 5 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 10 April 2015 is dismissed.
Count 6 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(b)(i) is dismissed.
Count 7 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 21(a) on unspecified dates is dismissed.
Count 8 of the Application-Contravention on 20 April 2015 alleging a contravention by the Respondent of order 21(b) is proven. The respondent did on 28 December 2014 contravene order 21(b).
The father is ordered to:
(a)
attend and complete, within 6 months, a Parenting Apart Post Separation Parenting Program ("the program") at an organisation or organisations as nominated by the Regional

Co-Ordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia; and
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program; and
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other party.
All previous parenting orders in relation to the children X born (omitted) 1997 (‘X’) and Y born (omitted) 2000 (‘Y’) be discharged.
That the father have sole parental responsibility for Y.
That the father shall advise the mother as soon as practicable after making any decision in respect of any major long term…

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 ALEXANDER & TURNER

Details

AGLC: Alexander and Turner [2015] FCCA 3197
Case: [2015] FCCA 3197
Decision Date: 2 December 2015

CaseChat Overview and Summary

This matter concerned an application-contravention filed by Alexander against Turner. The dispute involved allegations of contraventions of parenting orders made on 8 January 2014, concerning the children X and Y. The court was required to determine whether the respondent, Turner, had contravened various orders, and to make consequential orders regarding the children's welfare and living arrangements.

The court was tasked with determining the validity of eight counts of alleged contraventions. These counts related to breaches of specific orders concerning the children's care, contact, and communication. The court also had to consider the appropriate orders to be made in light of the findings, particularly given that one child, X, had reached the age of majority.

Judge Harland dismissed seven of the eight alleged contraventions, finding that the evidence did not support them. However, Count 8, alleging a contravention of order 21(b) on 28 December 2014, was proven. In light of this finding and the circumstances of the case, the court made significant new orders. These included the father attending a parenting program, the discharge of previous parenting orders, and the father having sole parental responsibility for Y, with Y living with him. Specific time and communication arrangements between Y and the mother were detailed, along with provisions for counselling, medical information sharing, and restrictions on discussing the proceedings with Y or denigrating the other parent. The court also made orders restraining the mother from allowing Y contact with a specific individual.

Orders

Orders of the court

Count 1 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent on unspecified dates of Order 6(a)(i) made on 8 January 2014 is dismissed.

Count 2 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 26 September 2014 is dismissed.

Count 3 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 9 January 2015 is withdrawn and dismissed.

Count 4 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 23 January 2015 is withdrawn and dismissed.

Count 5 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(a)(ii) on 10 April 2015 is dismissed.

Count 6 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 6(b)(i) is dismissed.

Count 7 of the Application-Contravention filed on 20 April 2015 alleging a contravention by the Respondent of order 21(a) on unspecified dates is dismissed.

Count 8 of the Application-Contravention on 20 April 2015 alleging a contravention by the Respondent of order 21(b) is proven. The respondent did on 28 December 2014 contravene order 21(b).

The father is ordered to:

(a)

attend and complete, within 6 months, a Parenting Apart Post Separation Parenting Program ("the program") at an organisation or organisations as nominated by the Regional

Co-Ordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia; and

(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program; and

(d) provide an appropriate certificate of completion of the program to the other party.

10.

All previous parenting orders in relation to the children X born (omitted) 1997 (‘X’) and Y born (omitted) 2000 (‘Y’) be discharged.

11.

That the father have sole parental responsibility for Y.

12.

That the father shall advise the mother as soon as practicable after making any decision in respect of any major long term issues for the care, welfare and development of Y.

13.

That Y live with the father.

14.

That Y shall spend time and communicate with the mother as follows:

(a)

(i) the second and fourth weekend of each month from 6.00 pm on Friday until 6.00 pm on Sunday during school terms;

(ii) from 6.00pm Friday until 6.00pm Sunday for the following weekends:

(i) 25 March 2016 – 27 March 2016;

(ii) 16 September 2016 – 18 September 2016;

(iii) 31 March 2017 – 2 April 2017;

(iv) 22 September 2017 – 24 September 2017

(iii) from 6.00 pm the day preceding Mother’s Day until 6.00 pm on Mother’s Day;

(iv) in the event that Y’s time with the mother falls on Father’s Day, Y’s time with the mother shall end at 6.00 pm on the Saturday;

(v) from 3.00 pm on Christmas Day until 8.00 pm on Boxing Day in 2016 and each alternate year thereafter;

(vi) from 8.00 am on Christmas Eve until 3.00 pm on Christmas Day in 2015 and each alternate year thereafter; and

(b) On the 2015/2016 long summer school holidays as follows:

i. 2 weeks commencing 6.00pm Sunday 27 December 2015 and ceasing 6.00pm Sunday 10 January 2016 and;

ii. 2 weeks commencing 6.00pm Sunday 26 June 2016 and ceasing 6.00pm Friday 8 July 2016.

i. 2 weeks commencing 6.00pm Sunday 15 January 2017 and ceasing 6.00pm Sunday 29 January 2017 and;

ii. 2 weeks commencing 6.00pm Friday 30 June 2017 and ceasing 6.00pm Friday 14 July 2017.

(d) On the 2017/2018 long school holidays as follows:

2.5 weeks commencing 6.00pm Wednesday

27 December 2017 and ceasing 6.00pm Sunday 14 January 2018.

15.

Should Y be camping at (omitted) for her own recreational purposes and be unable to attend for the mother’s weekend time at 6.00pm on Friday as per order 14, the mother is to collect Y at an agreed notified time and is to return Y at 8.00am Monday if it is a school day or 2.00pm if it is not a school day. The mother is to be notified by the father via email or text within 7 days of Y being booked into any such camp.

16.

All changeovers for the mother’s time with Y shall occur as follows:

(a) the father to deliver Y to the mother at the car park of the (omitted) in (omitted) at 6.00 pm on the Friday; and

(b) the mother to deliver Y to the father at the car park of the (omitted) in (omitted) at 6.00 pm on the Sunday.

17.

For the purposes of changeovers pursuant to paragraph 16 hereof, the mother be restrained from allowing MR S born (omitted) 1991 and/or MR J born (omitted) 1995 to accompany her for the purposes of changeovers.

18.

That the father ensure that Y attends counselling on an ongoing basis at such frequency and at such intervals as may be recommended by Y’s counsellor and further abide by any directions as may be made by the counsellor as he/she considers necessary to facilitate the wellbeing of Y.

19.

That the cost of Y’s counselling be borne by the father.

20.

The father be at liberty to provide to any counsellor Y attends a copy of all professional reports prepared in this matter, a copy of these orders and a copy of the reasons for judgment.

21.

The father be at liberty to provide a copy of these orders and the reasons for judgment to the principal of any school Y attends.

22.

The father forthwith sign all documents and do all things necessary to ensure that any school which Y may attend forwards to the mother at the mother’s expense all notices, newsletters, reports and photographs normally disseminated to a parent.

23.

The father as soon as practicable advise the mother of any significant illness or injury that effects Y whilst she is in his care and in the event of significant illness or injury the father authorise the treating medical professionals to speak to the mother about Y’s treatment save that the father alone shall be responsible for decisions relating to all treatment or other interventions undertaken by the medical professionals.

24.

In the event that the mother takes Y to a medical practitioner when Y is spending time with her she advise the father within 24 hours of the name, address and telephone number of the medical practitioner and authorise the medical practitioner to speak to the father and in the event that no such authority is provided paragraph 2 of these orders shall stand as such authority and the father is at liberty to provide a copy of this order to the medical practitioner.

25.

The mother, her servants and agents be and are hereby restrained from allowing Y from coming into contact with MR M born (omitted) 1965.

26.

Each of the father and mother be and is hereby restrained by themselves, their servants and agents from:

(a) discussing the evidence adduced in these proceedings or the judgment with Y or in the presence of or hearing of Y or allowing any other person to do so; and

(b) denigrating the other or the other’s family in the presence of or within the hearing of Y.

27.

Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth), the particulars of the obligations that these orders create and the particulars of consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order, are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION:

A. The previous orders made by the Family Court of Australia on 8 January 2014 have been replicated here except where amended as referred to in the accompanying reasons or are no longer applicable.

B. These orders only refer to Y as X is now 18 years of age.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

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