Baiden and Hall and Anor - [2015] FCCA 3250

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAIDEN & HALL & ANOR

[2015] FCCA 3250

Catchwords:
FAMILY LAW – Contravention Application – difficult issues of logistics between parties – allegations of sexual abuse against the Father unproven – significant care of young child by maternal Grandmother – Grandmother’s overt hostility towards Father which borders on contemptuous – joinder of necessary party (the Grandmother) – risk of further litigation of all parties including the Grandmother do not act responsibly towards the child and each other – formal warning to Grandmother.

Legislation:

Family Law Act 1975 (Cth), ss.70NAE(1) & (5), 70NAF

Federal Circuit Court Rules 2001 (Cth), r.11.01

Childers v Leslie (2009) 217 FLR 124; (2009) 39 Fam LR 379
In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113
In the Marriage of Gaunt (1978) FLC 90-468
Hunter & Morrison (contravention) (2014) FamCA 198
Tindall & Saldo [2015] FamCAFC 1

Applicant:

MR BAIDEN

First Respondent:

MS HALL

Second Respondent:

MS L HALL

File Number:

DUC 296 of 2013

Judgment of:

Judge Neville

Hearing date:

16 July 2015

Date of Last Submission:

7 August 2015

Delivered at:

Canberra

Delivered on:

18 December 2015

REPRESENTATION

Counsel for the Applicant:

Ms Webb

Solicitors for the Applicant:

Baldock Stacy & Niven, Orange, NSW

Counsel for the First Respondent:

Ms Snelling

Solicitors for the First Respondent:

Sheekey Williams, Solicitors, Wagga Wagga

ORDERS:

THE COURT FINDS THAT:

The Mother’s plea of “admission” of the Contraventions, but “with reasonable excuse”, is not accepted and is rejected by the Court.

THE COURT ORDERS THAT:

The maternal Grandmother, MS L HALL be joined as the Second Respondent in these proceedings.
The Applicant Father MR BAIDEN (born (omitted) 1981) (“the Father”) be compensated for time not spent with the child X (born (omitted) 2012) (“the child”), as a result of the Contraventions, and the Father’s time with the child shall be as follows:
(a)Time between the Father and child is to occur at the contact centre for the first month of contact, and is to commence at the earliest possible time, for the maximum block of time permitted by the contact centre every weekend, on a day to be determined by the contact centre. For clarity, that is, the first four consecutive weekends of contact.
(b)After the first month of contact has been completed, the Consent Orders made by Judge Harman on 4 September 2014 are to resume (in particular, Order 4A, until the child commences school and thereafter Order 4B);
(c)The Consent Orders made by Judge Harman on 4 September 2014 are to be varied to accommodate the make-up time between the child and Father as follows:
(i)The make-up time between the Father and child is to be no less than one (1) extra weekend per month for the next 12 months. For clarity, that is, the Father’s time with the child is to be for three (3) out of every four (4) weekends per month.
(d)From 18 December 2016 thereafter, the Orders of 4 September 2014…

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.

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Details

Case: [2015] FCCA 3250
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the matter of *Baiden and Hall and Anor*, heard before Judge Neville, the proceedings concerned contraventions of court orders relating to the child X. The applicant father, Mr Baiden, sought orders against the respondent mother, Ms Hall, and the maternal grandmother, Ms L Hall, who was subsequently joined as the second respondent. The core of the dispute revolved around the mother's alleged contraventions of existing consent orders concerning the father's time with the child.

The court was required to determine whether the mother's plea of "admission" of the contraventions, coupled with a claim of "reasonable excuse," was accepted. Furthermore, the court needed to consider the appropriate orders to compensate the father for lost time with the child, ensure the child's future contact arrangements, and address the mother's conduct and the grandmother's involvement. The court also had to consider the imposition of a bond on the mother and the allocation of costs.

Judge Neville rejected the mother's plea of admission with reasonable excuse. The court ordered that the maternal grandmother be joined as a second respondent and that the father be compensated for time not spent with the child due to the contraventions. This compensation was to be implemented through a phased approach, commencing with contact at a contact centre for the first month, followed by a resumption of previous consent orders with specific provisions for make-up time over the next 12 months. The mother was ordered to undertake counselling and complete a parenting course, and both parents, along with the maternal grandmother, were restrained from denigrating the other parent to the children. The mother was also required to enter into a bond, and costs were awarded to the father. The court noted that further breaches could lead to severe sanctions, including a change in the child's residence.

Orders

Orders of the court

THE COURT FINDS THAT:

The Mother’s plea of “admission” of the Contraventions, but “with reasonable excuse”, is not accepted and is rejected by the Court.

THE COURT ORDERS THAT:

The maternal Grandmother, MS L HALL be joined as the Second Respondent in these proceedings.

The Applicant Father MR BAIDEN (born (omitted) 1981) (“the Father”) be compensated for time not spent with the child X (born (omitted) 2012) (“the child”), as a result of the Contraventions, and the Father’s time with the child shall be as follows:

(a) Time between the Father and child is to occur at the contact centre for the first month of contact, and is to commence at the earliest possible time, for the maximum block of time permitted by the contact centre every weekend, on a day to be determined by the contact centre. For clarity, that is, the first four consecutive weekends of contact.

(b) After the first month of contact has been completed, the Consent Orders made by Judge Harman on 4 September 2014 are to resume (in particular, Order 4A, until the child commences school and thereafter Order 4B);

(c) The Consent Orders made by Judge Harman on 4 September 2014 are to be varied to accommodate the make-up time between the child and Father as follows:

(i) The make-up time between the Father and child is to be no less than one (1) extra weekend per month for the next 12 months. For clarity, that is, the Father’s time with the child is to be for three (3) out of every four (4) weekends per month.

(d) From 18 December 2016 thereafter, the Orders of 4 September 2014 are to resume in their totality.

The Mother, MS HALL (born (omitted) 1992) (“the Mother”) is to undertake counselling and is to provide evidence to the Court of having completed a parenting course for separated parents within six (6) months from the date of these Orders.

The Mother is required to ensure that the maternal Grandmother ceases her denigration of the Father.

Both parents are restrained from saying unkind or unpleasant things about the other parent to the children, in their presence, or allowing any other person, in particular the maternal Grandmother, to do so.

The Respondent Mother must enter into a bond of no more than 18 months in length, the terms of which are to be prepared by Counsel for the Father, and provided to Counsel for the Mother within 21 days from the date of these Orders.

The Bond must be in relation to the Consent Orders made by Judge Harman on 4 September 2014, and any additional Orders contained herein which operate in conjunction with the Orders of 4 September 2014.

The Bond must be filed with the Court after execution by no later than close of business on 29 January 2016.

10.

The Respondent Mother pay the Father’s costs either as agreed or taxed.

11.

Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

12.

Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

THE COURT NOTES THAT:

A. The Mother and the Maternal Grandmother are put on notice of the risk of severe sanction, which could include a more severe bond, plus adverse costs Orders and even a possible change in residence of the child, if any further breaches of the existing Orders occur.

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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