BOTSMAN & AMUNDSON - [2009] FamCA 978

FAMILY COURT OF AUSTRALIA

BOTSMAN & AMUNDSON

[2009] FamCA 978

FAMILY LAW – CHILDREN – ORDERS – CONTRAVENTION – whether the father contravened an order by refusing to return the child to the mother – whether the father had a reasonable excuse for failing to return the child – Court satisfied that the father intentionally failed to comply with the order without reasonable excuse

FAMILY LAW – CHILDREN – ORDERS – CONTRAVENTION – whether the father contravened an order by failing to comply with the reasonable direction of a Children’s Contact Service on two occasions – whether the father had a reasonable excuse – whether the father understood the obligations imposed by the order – Court satisfied that the father contravened the order without reasonable excuse – Court satisfied that the father’s behaviour showed a serious disregard for his obligations under the order

Family Law Act 1975 (Cth) ss 64B, 65M, 70NAC, 70NAE & 70NAF

Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
Dobbs & Brayson (2007) FLC 93-346

APPLICANT:

Ms Botsman

RESPONDENT:

Mr Amundson

FILE NUMBER:

ADC

2007

DATE DELIVERED:

16 October 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

28 July 2009 and 28 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tinning

SOLICITOR FOR THE APPLICANT:

Adey Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

I adjourn the matter to allow the parties to consider my reasons and return to the Court to make submissions as to the further orders to be made.

IT IS NOTED that publication of this judgment under the pseudonym Botsman & Amundson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 75 of 2007

MS BOTSMAN

Applicant

And

MR AMUNDSON

Respondent

REASONS FOR JUDGMENT

Introduction

On the 27 February 2009 the mother, Ms Botsman, filed a contravention application alleging that the father, Mr Amundson, had contravened the orders the Court made on the 26 August 2008.
The proceedings between the parties relate to their son X who was born in December 2001.
In the application for contravention the mother asserted that the father had contravened paragraph 3 of the order of the 26 August 2008 on the 25 January 2009 when he “without reasonable excuse refused to return the child to his mother”. (See paragraph 7 of the contravention application).
Paragraph 3 of the order of 26 August 2008 provides:
“3. That in addition to the time provided for [X] born […] December 2001 to spend with his father in the consent order made herein on 10 July 2008, [X] also spend time with his father during the Christmas school holiday period in each year in each alternate week commencing at the conclusion of school or 2pm on the Friday usually falling in the cycle of the father’s weekend time and concluding on the following Friday at 2pm SAVE AND EXCEPT…

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 BOTSMAN & AMUNDSON

Details

AGLC: BOTSMAN & AMUNDSON [2009] FamCA 978
Case: [2009] FamCA 978
Decision Date: 16 October 2009

CaseChat Overview and Summary

The parties in this matter were the father and the mother, with the dispute concerning allegations of contravention of parenting orders. The proceedings were before Dawe J in the Family Court of Australia. The mother alleged that the father had contravened orders by refusing to return the child to her and by failing to comply with directions from a Children’s Contact Service.

The court was required to determine whether the father had contravened the parenting orders by failing to return the child to the mother and whether he had a reasonable excuse for this failure. Additionally, the court had to consider whether the father had contravened the orders by failing to comply with reasonable directions of a Children’s Contact Service on two separate occasions, and again, whether he possessed a reasonable excuse for such non-compliance. The court also needed to assess whether the father understood the obligations imposed upon him by the existing orders.

Dawe J found that the father had intentionally failed to comply with the order to return the child without reasonable excuse. Furthermore, the court was satisfied that the father had contravened the orders by failing to comply with the reasonable directions of the Children’s Contact Service on two occasions, also without reasonable excuse. The court concluded that the father's conduct demonstrated a serious disregard for his obligations under the parenting orders.

The court adjourned the matter to enable the parties to consider the reasons provided and to make submissions regarding further orders.

Orders

Orders of the court

I adjourn the matter to allow the parties to consider my reasons and return to the Court to make submissions as to the further orders to be made.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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