Berney and Berney

In the Family Court of Australia, Ms Berney (the mother) applied to deal with Mr Berney (the father) for alleged contraventions of orders made on 13 July 2012. The dispute concerned the father's compliance with orders relating to the child's time with him, which were conditional upon the father's engagement in counselling and medical appointments, and the provision of information to the mother. The mother also sought to vary the existing parenting orders.

The court was required to determine whether the father had contravened the orders as alleged by the mother, specifically concerning payment of money, attendance at child changeovers, and providing evidence of ongoing counselling and medical treatment. Additionally, the court had to consider its power to vary the existing orders in circumstances where a contravention application is dismissed, and whether such variations were appropriate in this case.

Justice Rees found that the mother had not established a prima facie case for the alleged contraventions. Regarding the changeover contraventions, the court noted that the father's absence was explained by illness and covered by a notation in the original orders, and that the mother had not been adequately informed of this. For the contraventions relating to counselling and medical appointments, the court found that the strict terms of the existing orders did not compel the father to provide the requested evidence, and the consequence of non-compliance was the mother's right to withhold overnight time. Despite dismissing the contravention application, the court exercised its power under s 70NBA(b)(i) of the Family Law Act 1975 (Cth) to amend certain aspects of the existing orders by consent, specifically those concerning the provision of information about the father's medical condition and treatment.

The court ordered that the contravention application be dismissed. By consent, specific paragraphs of the 13 July 2012 orders were deleted and replaced with new provisions requiring the father or paternal grandparents to advise the mother of changes to the father's treating medical practitioners, any hospital admissions, and to provide regular reports from the father's general practitioner and liver specialist. These amended orders aim to provide the mother with necessary information regarding the father's health and treatment, thereby establishing a framework for the child's future time with the father.