B & W (No 1) - [2003] FMCAfam 101

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & W (No.1)

[2003] FMCAfam 101

CONTRAVENTION – Children – nature of serious disregard of order discussed – s.60B applicable to Division 13A proceedings – s.60B(1) and s.60B(2)(c) have particular significance in contravention proceedings – inter-relationship of s.60B, s.65E and Division 13A discussed – breach of residence order after contact continues until children returned to father – mother’s husband violently assaults father and paternal grandmother in presence of the children – serious disregard of orders established – stage 3 contravention – imprisonment is a sanction of last resort – community interest in the rule of law must be considered – comparability in sentencing is important – mother sentenced to term of imprisonment for seven months.

Family Law Act 1975, ss.60A(a), 60B, 64B, 64B(1)(a), 63DA, 64B(1)(b), 65E, 65M, 65T, 68F, 70NB(h), 70NE, 70NG, 70NJ, 70NJ(3), 70NO(2), 70NO(3), 70NT, 112AD, 112AP, 121(9)(d)
Crimes Administration and Sentence Act 1999 (NSW), s.77
Family Law Amendment Act2000

Haris v Caladine (1991) FLC 92-217 – referred to
CDJ v VAJ (1998) FLC 92-828 – followed
B and B: Family Law Reform Act 1995 (1997) FLC 92-755 – discussed
H v B (2002) FMCA fam 326 – discussed
Sahari (1976) FLC 90-086 – referred to
Schwarzkopff (1992) FLC 92-303 – discussed
Ibbotsen v Wincen (1994) FLC 92-469 – discussed
Tate (2003) Fam CA 112 – (unreported) – referred to

Applicant:

H B

Respondent:

T A W

File No:

PAM4244 of 2001

Delivered on:

18 March 2003

Delivered at:

Parramatta

Hearing date:

17 March 2003

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr I. Bullock

Solicitors for the Applicant:

Bullock and Associates

Solicitor Advocate for the Respondent:

Mr M. Brown

Solicitors for the Respondent:

Browns The Family Lawyers

ORDERS

That T A W contravened Orders 3 and 7 made 26 November 2001 in that she failed to return the children to the Applicant at 12 noon,
11 January 2003 and retained them thereafter in her possession until
1 March 2003 without reasonable excuse and that the Applicant's application at the time, filed 24 January 2003 as amended is proved.
The court is satisfied that the Respondent has behaved in a way that showed a serious disregard for her obligations under the orders made 26 November 2001.
The court is satisfied that in all the circumstances of the case it would not be appropriate to deal with the contravention under any other paragraphs of s.70NJ(3) except s.70NJ(3)(e).
Pursuant to s.70NJ(3) in respect of the contravention ordered in Order 1, T A W is sentenced to seven months imprisonment to commence forthwith.
The reasons for judgment this day be transcribed and a copy be placed on the Court file and copies made available to the parties.
Pursuant to sub-s.121(9)(d) leave is granted to publish a notice or report of these proceedings in a newspaper or periodical production, radio broadcast, or television program in a form approved by the Registrar of the Federal Magistrates Court, excluding any reference to 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 & W (No 1)

Details

AGLC: B & W (No 1) [2003] FMCAfam 101
Case: [2003] FMCAfam 101
Decision Date: 18 March 2003

CaseChat Overview and Summary

The Federal Magistrates Court dealt with a case involving a dispute over the custody of children, between T A W and the Applicant. The Respondent, T A W, was found to have contravened specific orders by failing to return the children to the Applicant at the specified time, and instead retained them in her possession without reasonable excuse. The Applicant filed an application on 24 January 2003, which was later amended, and sought enforcement of the court's orders. The central legal issues in this case were whether the Respondent had indeed contravened the orders and, if so, what appropriate action should be taken under the law.

The court found that the Respondent had indeed contravened the orders by not returning the children as required, and had behaved in a manner that showed a serious disregard for her obligations under the orders. The court concluded that the most appropriate response to this contravention was to impose a sentence under s.70NJ(3)(e), as no other provisions seemed fitting in the circumstances. Consequently, the Respondent was sentenced to seven months imprisonment. The court also granted leave for the reasons for judgment to be published in the media, excluding any direct references to the parties by name.

In summary, the Federal Magistrates Court found the Respondent guilty of contravening specific custody orders and sentenced her to seven months imprisonment. The court also allowed for the publication of the reasons for judgment in the media, with the stipulation that the names of the parties must be redacted. The decision highlights the seriousness with which the court views breaches of custody orders and the measures it is prepared to take to enforce its directives.

Orders

Orders of the court

That T A W contravened Orders 3 and 7 made 26 November 2001 in that she failed to return the children to the Applicant at 12 noon,

11 January 2003 and retained them thereafter in her possession until

1 March 2003 without reasonable excuse and that the Applicant's application at the time, filed 24 January 2003 as amended is proved.

The court is satisfied that the Respondent has behaved in a way that showed a serious disregard for her obligations under the orders made 26 November 2001.

The court is satisfied that in all the circumstances of the case it would not be appropriate to deal with the contravention under any other paragraphs of s.70NJ(3) except s.70NJ(3)(e).

Pursuant to s.70NJ(3) in respect of the contravention ordered in Order 1, T A W is sentenced to seven months imprisonment to commence forthwith.

The reasons for judgment this day be transcribed and a copy be placed on the Court file and copies made available to the parties.

Pursuant to sub-s.121(9)(d) leave is granted to publish a notice or report of these proceedings in a newspaper or periodical production, radio broadcast, or television program in a form approved by the Registrar of the Federal Magistrates Court, excluding any reference to the parties by name.

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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