B and B (No.2) - [2007] FMCAfam 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B (No.2)

[2007] FMCAfam 5

FAMILY LAW – Contravention proceedings – proceedings concern child aged 11 years – residence order in favour of mother made in December 2003 – orders also provide for regular periodic contact between father and child – child has not spent time with father since January of 2006 – mother’s position is that child refuses to attend contact because of father’s poor attitude to parenting and refusal to acknowledge his failings as a parent – father asserts mother has a proactive duty to facilitate contact which she has failed to discharge – reasonable excuse.

Family Law Act – ss.60A, 60B, 65E, 65N, 68F, 70NC, 70NE, 70NEA, 70NG

B & B No 1 [2006] FMCAfam 564
Van Galen [2006] Fam CA 714
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
Harris & Caladine & Commonwealth Attorney-General (1990) FLC 92-130
Palejs v Palejs [2002] FMCAfam 315
Northern Territory of Australia v GPAO (1999) 24 Fam LR 253
Snson v Hughes (1993) FLC 92-363
In the marriage ofO’Brien 16 Fam LR 723
Matthews v Millar 12 Fam LR 205
CKS & DRD [2002] FMCAfam 218
Davis & Davis (1976) FLC 90-050
Smit & Pickworth (1981) FLC 91-071

Applicant:

C S B

Respondent:

V A B

File number:

DNM84 of 2003

Judgment of:

Brown FM

Hearing date:

4 December 2006

Date of last submission:

7 December 2006

Delivered at:

Darwin

Delivered on:

15 January 2007

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnalls

Counsel for the Respondent:

Ms Orwin

Solicitors for the Respondent:

Margaret Orwin Solicitor

ORDERS

The Contravention Application filed 16 June 2006 is dismissed.
Until further or other order, Order 3 of the orders made in the Family Court at Darwin on 12 December 2003 is suspended.
Both parties file and serve their respective proposals as to the appropriate interim arrangements whereby S spends time with the father by 26 February 2007 together with any further affidavits of evidence.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM84 of 2003

C S B

Applicant

And

V A B

Respondent

REASONS FOR JUDGMENT

Introduction

These are contravention proceedings. These reasons for judgment should be read in conjunction with earlier reasons for judgment published on 27 October 2006.[1] Unfortunately since those reasons for judgment were published, no rapprochement has been reached between S B, the child whom these proceedings concern and his father, C S B, who is the applicant in the proceedings.
[1] See B & B No 1 [2006] FMCAfam 564
The respondent to the proceedings is V A B. She is S’s mother. S lives with her. It is her position that S, who is currently 12 years of age, is adamant that he does not want to spend time with his father, until his father has acknowledged that he has behaved inappropriately towards S in the past and cannot guarantee that this behaviour will not reoccur in future.
The difficulty from…

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 B and B (No.2)

Details

AGLC: B and B (No.2) [2007] FMCAfam 5
Case: [2007] FMCAfam 5
Decision Date: 15 January 2007

CaseChat Overview and Summary

The matter before the court involved parties B and B, whose dispute concerned the custody and care of their child, S. The Family Court of Australia was tasked with resolving issues regarding the contravention of a prior court order and the interim care arrangements for the child. The father, B, filed an application alleging that the mother, also B, had contravened a previous court order by not allowing him to spend time with their child as directed. The mother, in turn, argued that the father's conduct was such that it was not in the best interests of the child for him to have unsupervised contact. The court was required to determine whether the mother had indeed contravened the prior order and, if so, what the appropriate response should be. Additionally, the court had to decide on interim arrangements for the child's care pending further decisions.

The primary legal issues before the court were whether the mother had contravened a prior court order regarding the child's contact with the father, and if so, what the appropriate remedy would be. The court also needed to determine what interim care arrangements were in the best interests of the child. The court considered evidence from both parties, including affidavits and expert reports, to assess the mother's compliance with the previous order and the father's suitability to have unsupervised contact with the child. In its reasoning, the court examined the evidence meticulously to ascertain whether the mother's actions constituted a contravention of the court's order. The court also weighed the child's best interests in determining the interim care arrangements.

The court found that the mother had not contravened the prior order as the father had not provided the required information to enable the visitation to occur. The court determined that the father's failure to provide necessary details meant that the mother's actions were not in breach of the order. Consequently, the contravention application was dismissed. However, the court was concerned about the ongoing conflict between the parties and decided to suspend a previous order until further notice. The court ordered both parties to propose interim care arrangements for the child, including specific timelines for the father to have contact with the child. This decision aimed to ensure the child's welfare while the broader issues in the case were resolved.

Orders

Orders of the court

The Contravention Application filed 16 June 2006 is dismissed.

Until further or other order, Order 3 of the orders made in the Family Court at Darwin on 12 December 2003 is suspended.

Both parties file and serve their respective proposals as to the appropriate interim arrangements whereby S spends time with the father by 26 February 2007 together with any further affidavits of evidence.

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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