Argyros and Argyros - [2011] FamCA 609

FAMILY COURT OF AUSTRALIA

ARGYROS & ARGYROS

[2011] FamCA 609

FAMILY LAW – CHILDREN – With whom a child spends time with – Orders – contravention – Where the mother took reasonable steps and the contravention continued for no longer than was necessary – Court finds the mother had a reasonable excuse for the contravention under s 70NAE – s 70NDB not applied and no provision made for make-up time
FAMILY LAW – COSTS – Circumstances justifying order under s 117(2) of the Family Law Act – Applicant wholly unsuccessful – Costs order made

Family Law Act 1975 (Cth)

Childers & Leslie (2008) FLC 93-356
Taikato v R (1996) 186 CLR 454
The Marriage of Lutzke (1979) 5 Fam LR 553

APPLICANT:

Mr Argyros

RESPONDENT:

Ms Argyros

FILE NUMBER:

SYC

1771

2010

DATE DELIVERED:

29 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

29 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Slade Manwaring

COUNSEL FOR THE RESPONDENT:

Mr Thorburn

SOLICITOR FOR THE RESPONDENT:

Mervyn Finlay Thorburn & Marshall

Orders

That the contravention application filed by Mr Argyros on 27 May 2011 is dismissed.
That the applicant pay the respondent’s costs of the above application in the sum of $1,600.00 within eight (8) weeks.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Argyros & Argyros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1771 of 2010

Mr Argyros

Applicant

And

Ms Argyros

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
These proceedings concern an application filed by Mr Argyros (“the father”) on 27 May 2011 seeking that Ms Agyros (“the mother”) be dealt with for a contravention without reasonable excuse of parenting orders.
The orders are those made on 17 September 2010, which incorporated orders made on 31 May 2010. They relate to the parties’ two children, B, born in 2007, and C, born in 2008 (“the children”).
The orders address, inter alia, the time the children spend with the father, circumstances under which they will spend time with him and how changeover will be facilitated.
The contraventions relate to the mother’s undisputed failure to facilitate the children’s time with the father on two occasions.
The father relies on his affidavit filed 27 May 2011 and his mother’s affidavit filed today.
The mother relies on her affidavit sworn 24 June 2011.
The parties, but not the paternal grandmother, were each cross-examined.

The applicable law

The consequences of a failure to comply with orders that affect children are set out in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
For contravention applications, the Court may find that a contravention is alleged to have occurred but is not established (Subdivision C); or that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or that there…

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 Argyros and Argyros

Details

AGLC: Argyros and Argyros [2011] FamCA 609
Case: [2011] FamCA 609
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Argyros (the father) against Ms Argyros (the mother) for contravention of parenting orders concerning their two children. The father alleged that the mother had intentionally failed to comply with orders requiring the children to spend time with him on Sunday, 24 April 2011 (Easter Sunday), and Wednesday, 27 April 2011. The mother admitted to not facilitating the children's time with the father on these two occasions.

The central legal issue before the court was whether the mother had a reasonable excuse for contravening the parenting orders, as defined by section 70NAE of the Family Law Act 1975 (Cth). The court was required to determine if the mother's actions were taken on reasonable grounds and were necessary to protect the health or safety of a person, and if the period of contravention was no longer than necessary for that protection. The court also considered the onus of proof, which rests on the applicant to prove contravention, and then shifts to the respondent to establish a reasonable excuse.

The court reasoned that the mother's contraventions stemmed from allegations that the father had physically harmed one of the children on the preceding weekend. The mother contacted the police, who took a statement and interviewed the father and his mother. While the police took no further action, the mother was unable to obtain legal advice due to public holidays. She then informed the father that the children would not be available on the scheduled days. The court found that the mother believed on reasonable grounds that not allowing the children to spend time with the father was necessary to protect their health or safety, and that the period of non-compliance was not longer than necessary to address the immediate safety concerns. The court applied the principles from *Childers & Leslie* and *Taikato v R*, emphasizing that "reasonable excuse" involves an objective assessment of the circumstances and the purpose of the provision.

The court dismissed the father's contravention application, finding that the mother had a reasonable excuse for her actions under section 70NAE(5) of the Family Law Act 1975. Consequently, section 70NDB of the Act was not applied, and no provision was made for make-up time. The court also ordered the father to pay the mother's costs of the application in the sum of $1,600.00.

Orders