BILLINGS & SIMPKIN - [2015] FCCA 1401

FEDERAL CIRCUIT COURT OF AUSTRALIA

BILLINGS & SIMPKIN

[2015] FCCA 1401

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – reasonable excuse – whether reasonable excuse established – purpose of applying sanctions for contravention of parenting orders – two-fold purpose – education of parties about the necessity of complying with parenting orders – indication of disapproval of contravention of orders – imposition of a bond.

Legislation:
Family Law Act 1975 (Cth), ss.11C, 11F, 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC
Federal Circuit Court Rules 2001, r.25B.04

Cases cited:
Matthews v Millar (1988) 12 Fam LR 205
McClintock & Levier [2009] FamCAFC 62; (2009) 41 Fam LR 245; FLC 93-401; 233 FLR 179
In the Marriage of O’Brien [1992] FamCA 52; (1992) 16 Fam LR23; FLC 92-396
Stevenson v Hughes (1993) FLC 92-363
Stubbs & Stubbs [2013] FamCA 427

Applicant:

MR BILLINGS

Respondent:

MS SIMPKIN

File Number:

MLC 3920 of 2009

Judgment of:

Judge Scarlett

Hearing date:

20 May 2015

Date of Last Submission:

20 May 2015

Delivered at:

Melbourne

Delivered on:

20 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Lethlean

Solicitors for the Applicant:

Perisic Lawyers

Respondent:

In person

ORDERS

The Respondent did on 15 August 2014 without reasonable excuse contravene Order 3(a) made on 26 February 2013 by refusing to allow the Applicant to spend time with the child [X] born [in] 2003.
The Respondent did on 5 September 2014 without reasonable excuse contravene Order 3(a) made on 26 February 2013 by refusing to allow the Applicant to spend time with the child said child [X].
The Respondent did on 25 December 2014 without reasonable excuse contravene Order 3(d)(ii) made on 26 February 2013 by refusing to allow the Applicant to spend time with the said child [X].
The Respondent did on an unspecified date in February 2015 contravene Order 17 made on 7 December 2009 by failing to notify the Applicant that the said child [X] had become seriously ill and required surgery to remove his appendix.
The Respondent is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975, without surety or security, for a period of 12 months from today on the following conditions:
(a)That she be of good behaviour during the term of the bond; and
(b)That she comply with Orders of this Court.
The parties are to pay their own costs.
In respect of the Application for Parenting Orders filed by the father on 19 May 2015 and returnable on 14 September 2015:
(a)the Respondent is to file and serve a Response and an affidavit stating the facts upon which she seeks to rely within one month from the date of this Order: and
(b)the Applicant and the Respondent are to attend a Child Dispute Conference under the provisions of section 11F of the Family Law Act and in accordance with section 11C of the said Act the Conference is to be reportable.
IT IS NOTED that publication 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 BILLINGS & SIMPKIN

Details

AGLC: Billings and Simpkin [2015] FCCA 1401
Case: [2015] FCCA 1401
Decision Date: 20 May 2015

CaseChat Overview and Summary

This matter concerned an application by a father seeking to have the child's mother dealt with for contravention of court orders. The court was asked to determine whether the mother had, without reasonable excuse, contravened specific orders relating to the child's time with the father and a failure to notify the father of the child's serious illness and subsequent surgery. The father had initially alleged 72 counts of contravention, but elected to proceed on four representative counts.

The legal issues before the court were whether the mother had contravened the orders as alleged and, if so, whether she had a reasonable excuse for these contraventions. The specific contraventions related to refusing the father time with the child on 15 August 2014, 5 September 2014, and 25 December 2014, and failing to notify the father in February 2015 that the child had become seriously ill and required surgery.

The mother admitted to the contraventions but asserted she had a reasonable excuse. Her stated excuses were that the child, aged 11 and a half, expressed fear of going to his father's and had threatened suicide if required to do so. Regarding the failure to notify the father of the child's illness and surgery, the mother stated it had slipped her mind, and after the child recovered, he did not wish for his father to be informed. The court allowed the mother to give oral evidence to expand on her excuses, despite her being unrepresented, and permitted cross-examination by the father's counsel.

The court found that the Respondent had contravened the specified orders on multiple occasions without reasonable excuse. Consequently, the Respondent was ordered to enter into a bond for 12 months, requiring her to be of good behaviour and comply with court orders. The parties were to bear their own costs. The court also made orders regarding the father's application for parenting orders, requiring the Respondent to file a response and affidavit within one month and for both parties to attend a reportable Child Dispute Conference.

Orders

Orders of the court

The Respondent did on 15 August 2014 without reasonable excuse contravene Order 3(a) made on 26 February 2013 by refusing to allow the Applicant to spend time with the child [X] born [in] 2003.

The Respondent did on 5 September 2014 without reasonable excuse contravene Order 3(a) made on 26 February 2013 by refusing to allow the Applicant to spend time with the child said child [X].

The Respondent did on 25 December 2014 without reasonable excuse contravene Order 3(d)(ii) made on 26 February 2013 by refusing to allow the Applicant to spend time with the said child [X].

The Respondent did on an unspecified date in February 2015 contravene Order 17 made on 7 December 2009 by failing to notify the Applicant that the said child [X] had become seriously ill and required surgery to remove his appendix.

The Respondent is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975, without surety or security, for a period of 12 months from today on the following conditions:

(a) That she be of good behaviour during the term of the bond; and

(b) That she comply with Orders of this Court.

The parties are to pay their own costs.

In respect of the Application for Parenting Orders filed by the father on 19 May 2015 and returnable on 14 September 2015:

(a) the Respondent is to file and serve a Response and an affidavit stating the facts upon which she seeks to rely within one month from the date of this Order: and

(b) the Applicant and the Respondent are to attend a Child Dispute Conference under the provisions of section 11F of the Family Law Act and in accordance with section 11C of the said Act the Conference is to be reportable.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In respect of the Application for Parenting Orders filed by the father on 19 May 2015 and returnable on 14 September 2015:(a)the Respondent is to file and serve a Response and an affidavit stating the facts upon which she seeks to rely within one month from the date of this Order: and(b)the Applicant and the Respondent are to attend a Child Dispute Conference under the provisions of section 11F of the Family Law Act and in accordance with section 11C of the said Act the Conference is to be reportable. IT IS NOTED that publication of this judgment under the pseudonym Billings & Simpkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). The Application before the Court is an application by the father of a boy called [X] to have the child’s mother dealt with for contravention of a number of orders made on 7 December 2009 and other orders made by consent on 26 February 2013. There were originally the somewhat astonishing number of 72 counts alleging contraventions, although Counsel for the Applicant father very wisely elected to proceed on four counts, which in his view represented the totality of the concerns about the failure by the mother, in the father’s eyes, to comply with the Court orders. There is no issue as to the fact that this boy has not spent time with his father since the earlier contravention alleged on 5 August 2014 until today. There were four allegations relating to spend time orders made on 26 February, two of which referred to weekends on 15 August and 5 September, one referred to Christmas Day 2014 and one referred to a failure to comply with the order made on 17 December 2009 in which it was alleged that the mother had failed to inform the father that the child had become seriously ill and required surgery to remove his appendix. Once those four counts had been decided upon, each one was put to the mother in accordance with the procedure laid down by rule 25B.04 and in each case she was asked to indicate whether she admitted or denied the allegation. The mother indicated that she admitted each allegation, but informed the Court that she believed that she had a reasonable excuse. The mother gave a brief summary of the reasonable excuse or excuses prior to the luncheon adjournment which were that the child, now aged 11 and a half, had said that he was scared of going to his father’s place and had been saying that for quite a while. On one occasion indeed he threatened to commit suicide if he was required to go. As far as the mother’s failure to notify the father of the child that he had undergone surgery, or he had in fact taken ill requiring surgery, the mother said that when it first happened the necessity of informing the father had passed from her mind. After the child had recovered from surgery she asked him if he wanted her to let his father know and the child said that he did not. I informed the mother that over the luncheon adjournment I would give her the opportunity to prepare to give oral evidence expanding upon the reasonable excuse or excuses that she had informed the Court and that Mr Lethlean of Counsel who appeared for the applicant would be given the opportunity to cross-examine her. As the mother was unrepresented it is unsurprising that she had not prepared an affidavit setting out a reasonable excuse, but I took the view that in the circumstances, with the relatively simple facts of the situation, that I would permit her to give oral evidence and Counsel for the applicant and his instructor should be in a position to prepare for cross-examination, noting that they had been given a reasonable idea by the mother in open Court prior to the lunch adjournment as to what the reasonable excuse would be.

Ratio Decidendi

Legal Principle Established

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