BAMKIN & TATE - [2015] FCCA 779

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMKIN & TATE

[2015] FCCA 779

Catchwords:
FAMILY LAW – Children – parenting orders – contravention of parenting orders – where father claims that mother contravened parenting orders on nine occasions – where five contraventions without reasonable excuse established – reasonable excuse – whether mother has established a reasonable excuse – where reasonable excuse established in respect of one count.

Legislation:
Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NAF, 70NEA, 70NEB

Federal Circuit Court Rules 2001, r.25B.04

Applicant:

MR BAMKIN

Respondent:

MS TATE

File Number:

SYC 1276 of 2008

Judgment of:

Judge Scarlett

Hearing date:

20 March 2015

Date of Last Submission:

20 March 2015

Delivered at:

Sydney

Delivered on:

20 March 2015

REPRESENTATION

Solicitor for the Applicant:

Mr Davis

Solicitors for the Applicant:

Robertson Saxton Primrose

Solicitor for the Respondent:

Mr Reeve

Solicitors for the Respondent:

Marsdens Law Group

ORDERS

The Respondent mother did on 17 October 2012 without reasonable excuse contravene Order 8 made on 3 August 2009 by refusing to inform the Applicant father that the child X born (omitted) 2001 was ill and had been hospitalised.
The Respondent mother did on 5 July 2013 without reasonable excuse contravene Order 2(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the said child X during the school holiday period.
Count 20 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother during the second half of the half of the 2013-2014 Christmas school holiday period of Order 2(a) made on 14 May 2012 is dismissed.
The Respondent mother did on 2 February 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.
Count 22 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother on 15 February 2012 of Order 1(a) made on 14 May 2012 is dismissed.
The Respondent mother did on 16 February 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.
The Respondent mother did on 16 March 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.
The Respondent mother has established a reasonable excuse for contravening on 29 March 2014 Order 1(a) made on 14 May 2012.
Count 29 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother on 13 April 2014 of Order 1(a) made on 14 May 2012 is dismissed.
The Application is adjourned to Thursday 16 April 2015 for mention at 10:00 am.

IT IS NOTED that publication of this judgment under the pseudonym Bamkin & Tate is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

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

AGLC: BAMKIN & TATE [2015] FCCA 779
Case: [2015] FCCA 779
Decision Date: 20 March 2015

CaseChat Overview and Summary

This matter concerned an application by the Applicant father alleging contraventions of court orders by the Respondent mother concerning their child, X. The proceedings were before Judge Scarlett.

The court was required to determine whether the Respondent mother had, without reasonable excuse, contravened specific orders relating to the Applicant father's right to spend time with the child and to be informed of the child's welfare. The court also had to consider whether the Respondent mother had established a reasonable excuse for any alleged contraventions.

Judge Scarlett found that the Respondent mother had contravened certain orders, specifically by refusing to inform the Applicant father of the child's hospitalisation on 17 October 2012, and by refusing to allow the Applicant father to spend time with the child during the school holiday period on 5 July 2013 and on 2 February 2014, 16 February 2014, and 16 March 2014. However, the court dismissed several other alleged contraventions, finding that the Respondent mother had established a reasonable excuse for a contravention on 29 March 2014 and that other alleged contraventions were not proven or were dismissed.

The application was adjourned for mention on 16 April 2015.

Orders

Orders of the court

The Respondent mother did on 17 October 2012 without reasonable excuse contravene Order 8 made on 3 August 2009 by refusing to inform the Applicant father that the child X born (omitted) 2001 was ill and had been hospitalised.

The Respondent mother did on 5 July 2013 without reasonable excuse contravene Order 2(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the said child X during the school holiday period.

Count 20 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother during the second half of the half of the 2013-2014 Christmas school holiday period of Order 2(a) made on 14 May 2012 is dismissed.

The Respondent mother did on 2 February 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.

Count 22 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother on 15 February 2012 of Order 1(a) made on 14 May 2012 is dismissed.

The Respondent mother did on 16 February 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.

The Respondent mother did on 16 March 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.

The Respondent mother has established a reasonable excuse for contravening on 29 March 2014 Order 1(a) made on 14 May 2012.

Count 29 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother on 13 April 2014 of Order 1(a) made on 14 May 2012 is dismissed.

10.

The Application is adjourned to Thursday 16 April 2015 for mention at 10:00 am.

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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