Bodilson & Bodilson - [2022] FedCFamC2F 1511

Federal Circuit and Family Court of Australia
(DIVISION 2)
Bodilson & Bodilson [2022] FedCFamC2F 1511

File number(s): PAC 1787 of 2015

Judgment of: JUDGE GLASS

Date of judgment: 25 August 2022

Catchwords: FAMILY LAW – CONTRAVENTION – where contraventions of final orders are established

Legislation: Family Law Act 1975 (Cth) Division 13A of Pt VII, Part XIIIA ss 70NAC, 70NAE, 70NBA, 70NEB, 112AB, 112AC, 112AD

Cases cited:
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655

Stavros & Stavros (1984) FLC 91-562

Stevenson & Hughes (1993) FLC 92-363

Division: Division 2 Family Law

Number of paragraphs: 25

Date of last submission/s: 25 August 2022

Date of hearing: 25 August 2022

Place: Melbourne

The Applicant: Self Represented Litigant

The Respondent: Self Represented Litigant
ORDERS

PAC 1787 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BODILSON

Applicant

AND:
MS GILBERT

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

25 AUGUST 2022

THE COURT FINDS THAT:
1.The Respondent Mother has without reasonable excuse, contravened the Orders made 9 February 2021 on four occasions.

THE COURT ORDERS THAT:
2.The Respondent Mother forthwith attend upon and complete a Post Separation Parenting Program.
3.The Contravention Application filed on 14 June 2022, is otherwise dismissed.

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 and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Bodilson & Bodilson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:

This is a contravention application filed by Mr Bodilson principally relating to parenting Orders made by the Court on 9 February 2021 relating to the children X, born in 2008; Y, born in 2009; and Z, born in 2012. Mr Bodilson alleges six contraventions of those Orders. A further count relates to an Order made on 21 July 2021 for the respondent, Ms Gilbert, to pay his costs.
Parenting contraventions arise for determination pursuant to Division 13A of Part VII of the 1975 (Cth) (“the Act”). Pursuant to section 70NAC of the Act, Ms Gilbert is taken to have contravened an Order affecting children if she has intentionally failed to comply with the Order or made no reasonable attempts to comply with the Order. Pursuant to section 70NAE of the Act, she is taken to have a reasonable excuse for contravening an Order affecting children for reasons that include…

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 Bodilson & Bodilson

Details

AGLC: Bodilson & Bodilson [2022] FedCFamC2F 1511
Case: [2022] FedCFamC2F 1511
Decision Date

CaseChat Overview and Summary

The matter before the Court was a contravention application filed by Mr Bodilson, principally relating to parenting Orders made by the Court on 9 February 2021 concerning the children, X, Y, and Z. Mr Bodilson alleged six contraventions of those Orders, and a further count related to an Order made on 21 July 2021 for the respondent, Ms Gilbert, to pay his costs. The legal issues that the Court was required to decide included whether Ms Gilbert had contravened specific Orders without reasonable excuse, and if so, what consequences should flow from those findings.

The Court found that the Respondent Mother had contravened the Orders made on 9 February 2021 on four occasions. Firstly, she had failed to return the children to Mr Bodilson at the scheduled time on 23 April 2022, which she did not have a reasonable excuse for. Secondly, she had denigrated Mr Bodilson in the presence of the children on 20 April 2022, which was also without reasonable excuse. Thirdly, she had failed to provide her residential address at least 48 hours prior to spending time with the children on 12 March 2021. Fourthly, she had failed to undertake drug and alcohol counselling as required by Order 24. However, the Court found that Ms Gilbert had a reasonable excuse for not providing her residential address and not enrolling in the Domestic and Family Violence Prevention Course. Additionally, the Court found that Ms Gilbert's bankruptcy constituted a reasonable excuse for her contravention of the Costs Order.

In light of the findings, the Court exercised its discretion to order Ms Gilbert to attend a Post Separation Parenting Program. The Court did not consider it appropriate to make any other orders at that time, as the evidence did not support the necessity for more significant changes to the existing parenting Orders.

The final orders made by the Court were as follows: The Respondent Mother was required to attend and complete a Post Separation Parenting Program. The contravention application filed on 14 June 2022 was otherwise dismissed.

Orders