Beesley and Ericsson (No.4) - [2017] FCCA 2189

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEESLEY & ERICSSON (No.4)

[2017] FCCA 2189

Catchwords:
FAMILY LAW – Contravention – whether the father has contravened orders made on 18 December 2014 and 24 August 2016 – where these are the fourth proceedings issued since final orders on 18 December 2014 – if contraventions proven, what should the penalty be.

Legislation:

Family Law Act 1975, ss.70NEB(1)(a)(i), 70NFB(2), 70NBA, 70NAC, 70NAD, 65N, 70NAE, 70NEB, 70NEC, 70NECA, 70NFA, 60CA, 60CC

Federal Circuit Court Rules 2001, r.25B.02

Rice v Asplund (1979) FLC 90-725
Hugh & Sawer [2010] FamCA 290
Elspeth & Peter, Mark & Peter, and John & Peter [2007] FamCA 655

Stamp & Stamp [2014] FCCA 1269

Applicant:

MS BEESLEY (AKA MS A)

First Respondent:

MR ERICSSON

File Number:

DGC 1317 of 2013

Judgment of:

Judge Small

Hearing date:

23 February 2017

Date of Last Submission:

23 February 2017

Delivered at:

Dandenong

Delivered on:

12 September 2017

REPRESENTATION

Counsel for the Applicant:

Ms Jenkins

Solicitors for the Applicant:

Rockman Lawyers

Counsel for the Respondent:

Ms Ben-Simon

Solicitors for the Respondent:

Frid & Associates

ORDERS

UPON THE COURT FINDING THAT:

The respondent father contravened paragraph 4(b) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 1 September 2016 without reasonable excuse.
The respondent father contravened paragraph 9 of the Orders of 18 December 2014 on 4 September 2016 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 4 September 2016 without reasonable excuse.
The respondent father contravened paragraph 8(b) of the Orders of 18 December 2014 on 28 September 2016 without reasonable excuse.
The respondent father did not contravene paragraph 7(b) of the Orders of 18 December 2014 on 12 October 2016.
The respondent father contravened paragraph 7(b) of the Orders of 18 December 2014 on 25 October 2016 without reasonable excuse.

THE COURT ORDERS THAT:

Pursuant to s.70NEB(1)(a)(i) of the Family Law Act 1975 (Cth), the respondent father shall, within 7 days, do all such acts and things and sign all such documents as may be necessary for him to enrol in an accredited post-separation parenting course, and he shall provide a certificate of completion to the mother’s solicitors upon completion of that course.
Pursuant to s.70NFB(2) of the Family Law Act 1975 (Cth), the respondent father shall enter into a bond of two years’ duration with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.
Pursuant to s.70NBA of the Family Law Act 1975 (Cth), the orders of 18 December 2014 shall be varied so that in paragraph 7(b) the time the children shall be returned to the other parent at the conclusion of (religion omitted) festivals shall be two hours after the conclusion of (church omitted) prayers on those days.
The Amended Application Contravention of the mother filed 17 February 2017 is otherwise dismissed.

IT…

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 Beesley and Ericsson (No.4)

Details

AGLC: Beesley and Ericsson (No.4) [2017] FCCA 2189
Case: [2017] FCCA 2189
Decision Date: 12 September 2017

CaseChat Overview and Summary

This matter concerned an application by the mother alleging contravention of parenting orders by the respondent father. The proceedings were heard by Judge Small.

The court was required to determine whether the respondent father had contravened specific paragraphs of parenting orders made on 18 December 2014 and 24 August 2016, and if so, whether he had done so without reasonable excuse. The court also needed to consider the appropriate orders to make in light of any findings of contravention.

Judge Small found that the respondent father had contravened several paragraphs of the existing orders on various dates without reasonable excuse, specifically relating to his obligations concerning the children's return and other parenting arrangements. However, one alleged contravention was not substantiated. In response to the proven contraventions, the court ordered the father to enrol in and complete an accredited post-separation parenting course, enter into a bond to be of good behaviour and comply with court orders, and varied a specific provision within the 18 December 2014 orders concerning the return of the children after religious festivals. The mother's application was otherwise dismissed.

Orders

Orders of the court

UPON THE COURT FINDING THAT:

The respondent father contravened paragraph 4(b) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 1 September 2016 without reasonable excuse.

The respondent father contravened paragraph 9 of the Orders of 18 December 2014 on 4 September 2016 without reasonable excuse.

The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 4 September 2016 without reasonable excuse.

The respondent father contravened paragraph 8(b) of the Orders of 18 December 2014 on 28 September 2016 without reasonable excuse.

The respondent father did not contravene paragraph 7(b) of the Orders of 18 December 2014 on 12 October 2016.

The respondent father contravened paragraph 7(b) of the Orders of 18 December 2014 on 25 October 2016 without reasonable excuse.

THE COURT ORDERS THAT:

Pursuant to s.70NEB(1)(a)(i) of the Family Law Act 1975 (Cth), the respondent father shall, within 7 days, do all such acts and things and sign all such documents as may be necessary for him to enrol in an accredited post-separation parenting course, and he shall provide a certificate of completion to the mother’s solicitors upon completion of that course.

Pursuant to s.70NFB(2) of the Family Law Act 1975 (Cth), the respondent father shall enter into a bond of two years’ duration with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.

Pursuant to s.70NBA of the Family Law Act 1975 (Cth), the orders of 18 December 2014 shall be varied so that in paragraph 7(b) the time the children shall be returned to the other parent at the conclusion of (religion omitted) festivals shall be two hours after the conclusion of (church omitted) prayers on those days.

The Amended Application Contravention of the mother filed 17 February 2017 is 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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