Argyle and Thomas - [2017] FCCA 621

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARGYLE & THOMAS

[2017] FCCA 621

Catchwords:
FAMILY LAW – Contravention – where mother admitted contraventions but claimed reasonable excuse pursuant to s.70NAE(5) of the Family Law Act1975 – no reasonable excuse established.

Legislation:

Family Law Act 1975, ss.70NAA, 70NAC, 70NAF, 70NAE, 70NEA, 70NDA, 70NFA

Cases cited:

Searle & Mellor [2017] FamCAFC 46

Taikato v R (1996) 186 CLR 454
Childres v Leslie (2008) FLC 93-356
In the marriage of O’Brien (1993) FLC 92-396
Stamp & Stamp [2014] FCCA 1269
Raider & Raider [2011] FamCA 488
Vaughton & Randle (No.2) [2013] FamCA 286

Applicant:

MR ARGYLE

Respondent:

MS THOMAS

File Number:

PAC 744 of 2013

Judgment of:

Judge Obradovic

Hearing date:

16 February 2017

Date of Last Submission:

16 February 2017

Delivered at:

Parramatta

Delivered on:

31 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Rosic

Solicitors for the Applicant:

Taylor & Scott

Counsel for the Respondent:

Mr Piggott

Solicitors for the Respondent:

Marsden Law Group

ORDERS

That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 7 October 2014 in that:
(a)The Respondent without reasonable excuse failed to bring the children to school on 8 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Respondent failed to respond to the Applicant’s attempts to contact the Respondent to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b).
(b)The Respondent without reasonable excuse failed to bring the children to school on 16 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Respondent failed to respond to the Applicant’s attempts to contact the Respondent to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(a).
(c)The Respondent without reasonable excuse failed to bring the children to school on 22 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Respondent failed to respond to the Applicant’s attempts to contact the Respondent to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b).
The…

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 Argyle and Thomas

Details

AGLC: Argyle and Thomas [2017] FCCA 621
Case: [2017] FCCA 621
Decision Date: 31 March 2017

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Obradovic considered allegations by the Applicant that the Respondent had contravened parenting orders made on 7 October 2014. The dispute centred on the Respondent's alleged failure to ensure the children attended school on three specific dates in September 2016, and the subsequent lack of communication with the Applicant regarding these absences.

The court was required to determine whether the Respondent had, without reasonable excuse, contravened specific provisions of the existing parenting orders. These provisions related to the obligation to bring the children to school and to communicate with the Applicant about any proposed deviations from the agreed arrangements, particularly where such deviations impacted the Applicant's scheduled time with the children.

Judge Obradovic found that the Respondent had contravened the orders on 8, 16, and 22 September 2016. The reasoning was based on the Respondent's failure to bring the children to school on these dates, coupled with a failure to inform the Applicant of the absences. This lack of communication prevented the Applicant from making necessary alternative arrangements to facilitate his scheduled contact with the children, as required by the court's prior orders. The court noted that the Respondent also failed to respond to the Applicant's attempts to ascertain the children's whereabouts.

The court recorded findings that the Respondent had contravened the orders without reasonable excuse and listed the matter for further directions on 15 June 2017 to allocate a hearing date for sentencing in respect of these contraventions.

Orders

Orders of the court

That a finding be recorded that the Respondent, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 7 October 2014 in that:

(a) The Respondent without reasonable excuse failed to bring the children to school on 8 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Respondent failed to respond to the Applicant’s attempts to contact the Respondent to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b).

(b) The Respondent without reasonable excuse failed to bring the children to school on 16 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Respondent failed to respond to the Applicant’s attempts to contact the Respondent to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(a).

(c) The Respondent without reasonable excuse failed to bring the children to school on 22 September 2016. The Respondent failed to communicate with the Applicant that the children would be absent from school and that as such alternative arrangements would have needed to be made to enable the Applicant to pick up the children for his scheduled visit in adherence of the orders made 7 October 2014. The Respondent failed to respond to the Applicant’s attempts to contact the Respondent to find out the whereabouts of his children. The Respondent’s actions on the above occasion are in contravention of Order 3, in particular (3)(II)(b).

The matter is listed for directions on 15 June 2017 at 11.30am for the purposes of being allocated a hearing date for sentence in respect of the contraventions.

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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