BELKO & RUSHWORTH - [2019] FCCA 685

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELKO & RUSHWORTH

[2019] FCCA 685

Catchwords:
FAMILY LAW – Contravention proceedings – order requesting the Mother to facilitate phone calls between father and child – if the child is unavailable to spend time to speak the mother must ensure the call is returned as soon as possible that evening or if not possible the next day – requirement to take reasonable steps to ensure that orders are put into effect – no evidence that the mother took any steps to ensure that orders were put into effect – contravention of ground 4 proved.

Cases cited:

Stevenson & Hughes (1993) FLC ¶92-363

Applicant:

MR BELKO

Respondent:

MS RUSHWORTH

File Number:

MLC 6272 of 2013

Judgment of:

Judge McNab

Hearing date:

6 February 2019

Date of Last Submission:

6 February 2019

Delivered at:

Dandenong

Delivered on:

8 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Southey

Solicitors for the Applicant:

Robindale legal

The Respondent:

In person

ORDERS

The Court being satisfied beyond reasonable doubt that the mother has committed contraventions of orders under the Family Law Act 1975 (Cth) affecting the child X born in 2010 (“the child”) – being contraventions of [5] of the orders made in this Court on 16 January 2017 (“the Primary Order”);
The mother not having proved that she had a reasonable excuse for the said contraventions;
No Court having jurisdiction under the Family Law Act 1975 (Cth) having previously made an order in respect of the contravention of the Primary Order; and
The Court being satisfied that Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) applies to the contraventions referred to in Order 1 above.

THE COURT ORDERS THAT:

Pursuant to s.70NEB(1)(a) of the Family Law Act 1975 (Cth), the mother must:
(a)attend, participate in and complete, as soon as practicable, an appropriate parenting orders program at Region B Medical Centre (“the Program”) and, further, the mother must:
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in and undertake the Program, and provide proof of evidence of enrolment and the Program details to the Applicant and the Court within 7 days of the date of these orders;
(c)pay and otherwise be responsible for her share of all costs associated with the Program;
(d)abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program; and
(e)provide an appropriate certificate of completion of the Program to the father and to the Court.
The father may provide the child with a pre-paid mobile phone for his use in order for the telephone calls referred to in paragraph 5 of the orders of 16 January 2017 to take place.
The father’s contravention application filed 28 November 2018 otherwise be dismissed.

AND THE COURT NOTES THAT:

The orders of 16 January 2017 remain in full force and effect and in the event that the father does not purchase a…

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 BELKO & RUSHWORTH

Details

AGLC: BELKO & RUSHWORTH [2019] FCCA 685
Case: [2019] FCCA 685
Decision Date: 8 February 2019

CaseChat Overview and Summary

In BELKO & RUSHWORTH, McNab J considered an application by the father alleging contraventions by the mother of parenting orders made on 16 January 2017 concerning their child, X, born in 2010. The mother had not established a reasonable excuse for these contraventions.

The court was required to determine whether the mother had contravened the parenting orders, whether she had a reasonable excuse for such contraventions, and if the provisions of Subdivision E of Division 13A of Part VII of the *Family Law Act 1975* (Cth) applied. The court also considered the father's application for orders in relation to these contraventions.

McNab J found that the mother had committed contraventions of the parenting orders beyond reasonable doubt and that she had not proven a reasonable excuse. Applying Subdivision E of Division 13A of Part VII of the *Family Law Act 1975* (Cth), the court ordered the mother to attend, participate in, and complete an appropriate parenting orders program, and to take all necessary steps to enrol and provide proof of enrolment within seven days. The mother was also ordered to pay her share of the program costs and abide by its requirements, providing a certificate of completion to the father and the court. The father was permitted to provide the child with a pre-paid mobile phone for telephone calls as previously ordered, and his contravention application was otherwise dismissed. The original parenting orders remained in full force.

Orders

Orders of the court

The Court being satisfied beyond reasonable doubt that the mother has committed contraventions of orders under the Family Law Act 1975 (Cth) affecting the child X born in 2010 (“the child”) – being contraventions of [5] of the orders made in this Court on 16 January 2017 (“the Primary Order”);

The mother not having proved that she had a reasonable excuse for the said contraventions;

No Court having jurisdiction under the Family Law Act 1975 (Cth) having previously made an order in respect of the contravention of the Primary Order; and

The Court being satisfied that Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) applies to the contraventions referred to in Order 1 above.

THE COURT ORDERS THAT:

Pursuant to s.70NEB(1)(a) of the Family Law Act 1975 (Cth), the mother must:

(a) attend, participate in and complete, as soon as practicable, an appropriate parenting orders program at Region B Medical Centre (“the Program”) and, further, the mother must:

(b) sign all such documents and do all such acts and things as shall be necessary to enrol in and undertake the Program, and provide proof of evidence of enrolment and the Program details to the Applicant and the Court within 7 days of the date of these orders;

(d) abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program; and

(e) provide an appropriate certificate of completion of the Program to the father and to the Court.

The father may provide the child with a pre-paid mobile phone for his use in order for the telephone calls referred to in paragraph 5 of the orders of 16 January 2017 to take place.

The father’s contravention application filed 28 November 2018 otherwise be dismissed.

AND THE COURT NOTES THAT:

The orders of 16 January 2017 remain in full force and effect and in the event that the father does not purchase a mobile phone, contact be effected by the father telephoning the mother’s mobile number.

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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