Bell & Quiroga (No 2) - [2023] FedCFamC2F 988

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bell & Quiroga (No 2) [2023] FedCFamC2F 988

File number(s): HBC 1192 of 2020

Judgment of: JUDGE TAGLIERI

Date of judgment: 9 August 2023

Catchwords: FAMILY LAW – parenting – contravention – where respondent mother pleaded guilty with reasonable excuse to seven counts of alleged contravention – reasonable excuse not established on six counts – reasonable excuse established on one count – mother found guilty on six counts – orders made for term of imprisonment of three months – sentence of imprisonment conditionally suspended

Legislation:
Part 13A of the Family Law Act 1975 (Cth) Div 13A of Part VII, ss 70NFB(2)(e), 70NFA(3), 70NFG

Tasmania Legal Aid Guidelines for Grants Guideline 8(2)C(iii)A

Cases cited:
McClintock & Levier [2009] FamCAFC 62

Quiroga & Bell [2023] FedCFamC1A 80

Division: Division 2 Family Law

Number of paragraphs: 45

Date of hearing: 31 July 2023

Place: Hobart

Counsel for the Applicant: Ms Ryan

Solicitor for the Applicant: PWB Lawyers

Solicitor for the Respondent: Mr McNally, Advocate Lawyers
ORDERS

HBC 1192 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BELL

Applicant

AND:
MS QUIROGA

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

9 august 2023

THE COURT FINDS THAT:
1.The Respondent Mother Ms Quiroga (“the Mother”) without reasonable excuse contravened Order 8 of the Orders made by Judge Taglieri on 19 December 2022 on the following occasions:
(a)4 January 2023;
(b)14 January 2023;
(c)18 January 2023;
(d)25 January 2023;
(e)28 January 2023; and
(f)1 February 2023.

2.The Mother with reasonable excuse contravened Order 8 of the Orders made by Judge Taglieri on 19 December 2022 on 11 January 2023.

THE COURT ORDERS THAT:
3.The global sanction handed down for the contraventions found against the Mother is that she be sentenced to a period of imprisonment of three (3) months, to be wholly suspended for a period of twelve (12) months from this date on the following terms and conditions:
(a)The Mother provide three make up visits for the child X born in 2020 with the Applicant Father Mr bell (“the Father”) for two hours at the earliest dates available, supervised at the City B Children’s Contact Service; and
(b)The Mother thereafter complies with the Order 19 made on 9 June 2023; and
(c)The Mother continues to comply with Order 19 made on 9 June 2023.

4.The Mother pay the Father’s costs in the fixed sum of $1,528.98, only to be payable in the event that the Mother fails to comply with the terms of the Orders made by the Court in the judgment delivered 9 August 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit…

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 Bell & Quiroga (No 2)

Details

AGLC: Bell & Quiroga (No 2) [2023] FedCFamC2F 988
Case: [2023] FedCFamC2F 988
Decision Date

CaseChat Overview and Summary

In the case of Bell & Quiroga (No 2), the court considered a contravention application filed by the Applicant Father, Mr Bell, against the Respondent Mother, Ms Quiroga. The Father alleged that the Mother had breached interim parenting orders made on 19 December 2022, which provided for the Father to spend time with the child. The specific breaches were alleged to have occurred on various dates between 4 January 2023 and 1 February 2023. The central legal issue was whether the Mother had reasonable excuse for contravening the court orders on these occasions.

The court found that the Mother had admitted to contravening the orders on seven occasions but claimed she had reasonable cause for doing so. The Father argued that all contraventions were without reasonable excuse, relying on his affidavit and records from the City B Children’s Contact Service. The Mother provided affidavits and sought to rely on an affidavit from her sister, which the court did not admit due to its late filing. After observing the Mother's evidence and considering her explanations, the court concluded that there was no objective or reliable evidence to support her claims of safety concerns or other reasonable excuses for non-compliance. The court rejected her claims about alcohol and drug use, family violence, neglect, and the risk of the Father removing the child from the state. The court found that only on one occasion did the Mother have a reasonable excuse for non-compliance, which was due to a misunderstanding of the changeover process at the contact service.

The court then addressed the appropriate sanction for the contraventions, considering the objectives of Division 13A of Part VII of the Family Law Act 1975 (Cth). Given the Mother's repeated non-compliance despite previous sanctions, the court decided that a strong message was necessary to enforce compliance with the court orders. The court imposed a sentence of imprisonment of three months, to be wholly suspended for twelve months on specific terms and conditions, including make-up visits for the child and ongoing compliance with the orders. The court also ordered the Mother to pay the Father's costs in the event of further non-compliance. The court's decision aimed to ensure that the child's best interests were met by enforcing the court-ordered parenting arrangements.

Orders