BARBERO & CONNERS - [2019] FCCA 2322

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARBERO & CONNERS

[2019] FCCA 2322

Catchwords:
FAMILY LAW – Contravention – whether the mother has contravened orders made on 8 October 2008 and 26 June 2009 without reasonable excuse – if contraventions proven, what penalty might be appropriate in circumstances where the mother has been found to have contravened orders on two previous occasions.

Legislation:

Family Law Act 1975 (Cth), ss.65N, 70NAC, 70NAD, 70NAE, 70NBA,70NEB, 70NEC, 70NECA, 70NFA, 70NFB, Part VII
Federal Circuit Court Rules 2001 (Cth), rr.4.01, 25B.02

Cases cited:

Elspeth and Peter, Mark and Peter, and John and Peter [2007] FamCA 65
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313
Hugh & Sawer [2010] FamCA 290
McClintock & Levier [2009] FamCAFC 62

Applicant:

MR BARBERO

Respondent:

MS CONNERS

File Number:

MLC 8451 of 2008

Judgment of:

Judge Small

Hearing date:

12 December 2018

Date of Last Submission:

12 December 2018

Delivered at:

Melbourne

Delivered on:

26 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Robinson

Solicitors for the Applicant:

Carew Gartlan Mcclelland

Counsel for the Respondent:

Ms Wiener

Solicitors for the Respondent:

Cathleen Corridon & Associates

Counsel for the Independent Children's Lawyer:

Mr Ambrose

Solicitors for the Independent Children's Lawyer:

Madison Branson Lawyers

ORDERS

UPON THE COURT FINDING THAT:

The Respondent mother, without reasonable excuse, contravened paragraph 8(e) of the Orders of 8 October 2008 on the following dates:
(a)25 March 2016;
(b)8 April 2016;
(c)22 April 2016;
(d)6 May 2016;
(e)20 May 2016;
(f)3 June 2016;
(g)17 June 2016;
(h)1 July 2016; and
(i)15 July 2016;
The Respondent mother, without reasonable excuse, contravened paragraph 8(f) of the Orders of 8 October 2008 on the following dates:
(a)26 February 2016; and
(b)11 March 2016;
The Respondent mother, without reasonable excuse, contravened paragraph 8(i) of the Orders of 8 October 2008 on 28 May 2016:
The Respondent mother, without reasonable excuse, contravened paragraph 8(k) of the Orders of 8 October 2008 on 11 June 2016:
The Respondent mother, without reasonable excuse, contravened paragraph 8(l) of the Orders of 8 October 2008 on 2 March 2016:
The Respondent mother, without reasonable excuse, contravened paragraph 5 of the Orders of 26 June 2009 on the following dates:
(a)1 February 2016;
(b)29 February 2016;
(c)9 March 2016;
(d)10 March 2016;
(e)11 March 2016;
(f)17 March 2016;
(g)18 March 2016;
(h)11 April 2016;
(i)27 April 2016;
(j)28 April 2016;
(k)29 April 2016;
(l)19 May 2016;
(m)25 May 2016;
(n)26 May 2016;
(o)6 June 2016;
(p)9 June 2016;
(q)20 June 2016;
(r)22 June 2016; and
(s)24 June 2016; and
The Respondent mother, without reasonable excuse, contravened paragraph 7 of the Orders of 26 June 2009 on each and every day from 26 June 2010 to 12 December 2018:

THE COURT ORDERS

Pursuant to s.70NFB(2) of the Family Law Act1975 (Cth), the mother shall enter into a Bond of two years’ duration in the sum of $2000.00 (but without surety) to be of good behaviour and to comply with all current orders of…

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 BARBERO & CONNERS

Details

AGLC: Barbero and Conners [2019] FCCA 2322
Case: [2019] FCCA 2322
Decision Date: 26 August 2019

CaseChat Overview and Summary

In the matter of *Barbero & Conners*, heard by Judge Small, the dispute concerned allegations that the respondent mother had contravened previous court orders made on 8 October 2008 and 26 June 2009, without reasonable excuse. The court was also required to consider what penalty might be appropriate, given that the mother had previously been found to have contravened orders on two prior occasions.

The legal issues before the court were whether the mother had, in fact, contravened specific paragraphs of the orders from 8 October 2008 and 26 June 2009 on various dates, and whether these contraventions were without reasonable excuse. If contraventions were proven, the court needed to determine the appropriate penalty, taking into account the mother's history of non-compliance.

The court found that the respondent mother had, without reasonable excuse, contravened multiple paragraphs of the orders from 8 October 2008 and 26 June 2009 on numerous specified dates. Specifically, the court found contraventions of paragraphs 8(e), 8(f), 8(i), 8(k), 8(l) of the 8 October 2008 orders, and paragraphs 5 and 7 of the 26 June 2009 orders. In light of these findings, and pursuant to s.70NFB(2) of the *Family Law Act 1975* (Cth), the mother was ordered to enter into a two-year bond of $2000.00 to be of good behaviour and comply with all current court orders. Additionally, she was ordered to enrol in and attend an approved post-separation parenting course within seven days, and to pay the father $1500.00 for costs awarded in previous orders within twelve months. All other extant applications were dismissed.

Orders

Orders of the court

UPON THE COURT FINDING THAT:

The Respondent mother, without reasonable excuse, contravened paragraph 8(e) of the Orders of 8 October 2008 on the following dates:

(a) 25 March 2016;

(b) 8 April 2016;

(d) 6 May 2016;

(e) 20 May 2016;

(f) 3 June 2016;

(g) 17 June 2016;

(h) 1 July 2016; and

(i) 15 July 2016;

The Respondent mother, without reasonable excuse, contravened paragraph 8(f) of the Orders of 8 October 2008 on the following dates:

(a) 26 February 2016; and

(b) 11 March 2016;

The Respondent mother, without reasonable excuse, contravened paragraph 8(i) of the Orders of 8 October 2008 on 28 May 2016:

The Respondent mother, without reasonable excuse, contravened paragraph 8(k) of the Orders of 8 October 2008 on 11 June 2016:

The Respondent mother, without reasonable excuse, contravened paragraph 8(l) of the Orders of 8 October 2008 on 2 March 2016:

The Respondent mother, without reasonable excuse, contravened paragraph 5 of the Orders of 26 June 2009 on the following dates:

(a) 1 February 2016;

(b) 29 February 2016;

(d) 10 March 2016;

(e) 11 March 2016;

(f) 17 March 2016;

(g) 18 March 2016;

(h) 11 April 2016;

(i) 27 April 2016;

(j) 28 April 2016;

(k) 29 April 2016;

(l) 19 May 2016;

(m) 25 May 2016;

(n) 26 May 2016;

(o) 6 June 2016;

(p) 9 June 2016;

(q) 20 June 2016;

(r) 22 June 2016; and

(s) 24 June 2016; and

The Respondent mother, without reasonable excuse, contravened paragraph 7 of the Orders of 26 June 2009 on each and every day from 26 June 2010 to 12 December 2018:

THE COURT ORDERS

Pursuant to s.70NFB(2) of the Family Law Act 1975 (Cth), the mother shall enter into a Bond of two years’ duration in the sum of $2000.00 (but without surety) to be of good behaviour and to comply with all current orders of this court.

The mother shall, within 7 days, do all such acts and things and sign all such documents as may be necessary for her to enrol in and attend a post-separation parenting course approved by the Independent Children’s Lawyer, and upon completion of that parenting course she shall provide a certificate of completion to the lawyers for the father and the Independent Children’s Lawyer.

10.

The mother shall, within 12 months from the date of this order, pay to the father the sum of $1500.00, being costs awarded to him pursuant to the Orders of 26 June 2009.

11.

All extant applications are otherwise dismissed.

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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