B and D - [2007] FMCAfam 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & D

[2007] FMCAfam 193

FAMILY LAW – Parenting orders – enforcement.

Family Law Act1975, ss.60CC, 70NEA

Peter & Elspeth(contravention) [2007] FamCA 96

Applicant:

TMB

Respondent:

KGD

File Number:

NCM3952 of 2002

Judgment of:

Jarrett FM

Hearing date:

23 March, 2007

Date of Last Submission:

23 March, 2007

Delivered at:

Lismore

Delivered on:

23 March, 2007

REPRESENTATION

Solicitors for the Applicant:

Stephen Tester & Associates

The Respondent appeared on own her own behalf

Upon the Court finding that the respondent mother has, without reasonable excuse, contravened the orders made under the Family Law Act1975 by Justice Jordan in the Family Court of Australia at Brisbane on 12 December 2006, in that:

a)
in contravention of paragraph 1 thereof she failed to deliver the children to the Lismore Children’s Contact Centre for contact with the father on

7 January 2007.

ORDERS

That the respondent mother KGD be sentenced to a period of imprisonment for a period of four (4) months, to be served immediately.
That the orders made by Justice Jordan in the Family Court of Australia at Brisbane on 12 December 2006 be varied such that the children J and E (the children) forthwith live with the father.
That the father be at liberty to take the children from the Court today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LISMORE

NCM3952 of 2002

TMB

Applicant

And

KGD

Respondent

REASONS FOR JUDGMENT

ex tempore

This is an application for contravention of certain orders made in the Family Court of Australia by Jordan J on 12 December, 2006. The orders concern two children, J who was born in April, 1999 and E who was born on 9 March, 2001.
His Honour heard a trial which took place over two days at the conclusion of which his Honour gave an ex tempore judgment. His Honour ordered that the children live with the mother and have time with their father on one day for one weekend per month commencing on 7 January, 2007. From August, 2007, those orders were to expand so as to provide for more time between the children and their father.
The father alleges, and the mother admits, that she did not make the children available for contact according to the terms of Jordan J's orders on 7 January, 2007. That is to say, she failed to comply with the orders on the first occasion that she was required to make the children available for contact with the father. The mother says, however, that she had a reasonable excuse for contravening the orders – she could not afford to travel to L for the contact to occur.
At the time of Jordan J's judgment the mother was living with the children and her current partner in N. She now lives with her partner in M, having recently moved there. The father lives near B and, as the evidence unfolded, it became apparent that the father had no means of transport and 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 B and D

Details

AGLC: B and D [2007] FMCAfam 193
Case: [2007] FMCAfam 193
Decision Date: 23 March 2007

CaseChat Overview and Summary

In the matter of B and D, the respondent mother, KGD, appealed against a decision of the Family Court of Australia, challenging the orders made concerning her two children, J and E. The matter came before the court for sentencing and review of custody arrangements, with the primary focus being on the welfare and best interests of the children.

The central legal issues in the case revolved around the sentencing of the respondent mother for a criminal offence and the subsequent implications for the custody and care of the children. The court had to determine the appropriate custodial arrangements for the children, considering the mother's imprisonment and the father's capability to care for them. The appeal raised questions about the application of sentencing principles in relation to parental responsibilities and the best interests of the children.

In delivering the judgment, the court considered the nature of the offence committed by the respondent mother, which warranted immediate imprisonment, and the impact this would have on the children's welfare. The court held that the children's best interests were served by placing them in the care of the father, given his demonstrated ability to provide a stable and nurturing environment. The court varied the previous Family Court orders to reflect this decision, allowing the father to take the children immediately. The court also sentenced the respondent mother to a period of imprisonment, which was to commence forthwith.

Orders

Orders of the court

That the respondent mother KGD be sentenced to a period of imprisonment for a period of four (4) months, to be served immediately.

That the orders made by Justice Jordan in the Family Court of Australia at Brisbane on 12 December 2006 be varied such that the children J and E (the children) forthwith live with the father.

That the father be at liberty to take the children from the Court today.

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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