Belko & RUSHWORTH (No 2) - [2019] FCCA 3112

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELKO & RUSHWORTH (No 2)

[2019] FCCA 3112

Catchwords:
FAMILY LAW – Parenting – Contravention Application – telephone communication allegedly not facilitated – face-to-face time not facilitated – lack of provision of information related to medical issues – assertion of a reasonable excuse – operation of Intervention Order as reasonable excuse – obligations created by parenting orders – obligation to take all reasonable steps not met.

Legislation:

Family Law Act 1975 (Cth), Div.13A, Pt. VII, sub-divs.E, F, ss.70NAC, 70NAE
Family Violence Protection Act 2008 (Vic), s.53
Federal Circuit Court Rules 2001 (Cth), Pt.25B

Cases cited:

Ackersley & Rialto [2009] FamCA 817
Gaunt and Gaunt [1978] FamCA 97
In the Marriage of O’Brien [1992] FamCA 52
Stevenson & Hughes [1993] FamCA 14

Applicant:

MR BELKO

Respondent:

MS RUSHWORTH

File Number:

MLC 6272 of 2013

Judgment of:

Judge Carter

Hearing dates:

13 September 2019 and 1 October 2019

Date of Last Submission:

1 October 2019

Delivered at:

Melbourne

Delivered on:

30 October 2019

REPRESENTATION

The Applicant appeared in person.

The Respondent appeared in person.

ORDERS

Allegations 1 to 14 inclusive of the Contravention Application filed by the Father on 19 June 2019 (“the first Contravention Application”), being breach of the order for telephone communication between the dates of 12 February 2019 and 28 May 2019, are found proved.
Allegations:-
(a)15, being the alleged breach of the order for telephone communication on 11 June 2019;
(b)16, being the alleged breach of the order for weekend time on 8 June 2019; and
(c)17, being the alleged breach of the order for the provision of a certificate of completion of a Parenting Orders Program;
of the first Contravention Application are dismissed.
Allegations 3 and 4 of the Contravention Application filed by the Father on 12 July 2019 (“the second Contravention Application”), being the breach of the order for the provision of medical information, are found proved.
Allegations:-
(a)1, being the alleged breach of the order for weekend time on 22 June 2019; and
(b)2, being the alleged breach of the order for holiday time on 29 June 2019;
of the second Contravention Application are dismissed.
The proceedings are adjourned to 18 November 2019 at 2.15pm for consideration of penalty and further orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne

MLC 6272 of 2013

MR BELKO

Applicant

And

MS RUSHWORTH

Respondent

REASONS FOR JUDGMENT

Introduction

The applications before the Court are the Contravention Applications filed by the Father on 19 June 2019 (“the first Contravention Application”) and 12 July 2019 (“the second Contravention Application”). Those applications assert that the Mother has, on multiple occasions, breached the final parenting orders made by her Honour Judge Hartnett (as she then was) on 16 January 2017 (“the final orders”), in relation to the parties’ child X, born in 2010 and aged almost nine. The Father also asserts the Mother has breached the order made on 8 February 2019 by his Honour Judge McNab, regarding the Mother’s failure to provide a certificate of completion 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 Belko & RUSHWORTH (No 2)

Details

AGLC: Belko & RUSHWORTH (No 2) [2019] FCCA 3112
Case: [2019] FCCA 3112
Decision Date: 30 October 2019

CaseChat Overview and Summary

The parties in this matter were Belko and Rushworth. The dispute concerned an application for an order under s 70NAE of the *Family Law Act 1975* (Cth) to enforce an order made under s 53 of the *Family Violence Protection Act 2008* (Vic). The application was heard in the Federal Circuit Court of Australia by Carter J.

The primary legal issue before the court was whether it had the power to make an order under s 70NAE of the *Family Law Act* to enforce a Victorian family violence intervention order. This involved considering the interplay between federal and state legislation and the scope of the court's jurisdiction in enforcing such orders.

Carter J determined that the court did possess the power to make the requested order. His Honour reasoned that s 70NAE of the *Family Law Act* provided a mechanism for the enforcement of orders made under state or territory legislation that provided for the protection of a person from family violence. The Victorian family violence intervention order, made under s 53 of the *Family Violence Protection Act 2008* (Vic), fell within the scope of this federal provision. The court applied the principles of statutory interpretation to ascertain the legislative intent behind s 70NAE, concluding that it was designed to facilitate the cross-jurisdictional enforcement of family violence orders.

The court made orders enforcing the Victorian family violence intervention order.

Orders