BOWEN & SAWER - [2018] FamCA 367

FAMILY COURT OF AUSTRALIA

BOWEN & SAWER

[2018] FamCA 367

FAMILY LAW – ORDERS – Contravention – Where the Court found the father contravened orders without reasonable excuse on three occasions – Where the father has previously contravened orders – Where the court found the contraventions should be dealt with under Sub-division F of Division 13A of Part VII of the Family Law Act – Ordered that the father enter into concurrent good behaviour bonds with an overall duration of six months – Ordered the father’s time with the child be suspended until the latter of the father’s entry into the good behaviour bonds or a set time the following day – Ordered the father shall pay the mother’s costs assessed in the sum of $1,500.

FAMILY LAW – ORDERS – Variation – Where the parties sought variations to the July 2017 final orders – Concluded the mother’s proposal to suspend the child’s visit with the father under the orders for the coming weekend was thwarted by the lack of any change in circumstances – Concluded the father failed to make out his case for the proposed changes to the July 2017 final orders, which included reversal of the child’s residence, provision for the child to spend time with the mother, and for restraint of the mother from allowing the child any personal contact with her partner.

Family Law Act 1975 (Cth) ss 60CC, 70NBA, 70NFB, Sub-div F, Div 13A, Part VII
Family Law Rules 2004 (Cth) r 21.08

Banks & Banks [2015] FamCAFC 36
Langmeil & Grange [2013] FamCAFC 41
Marsden & Winch (2009) 42 Fam LR 1
Poisat & Poisat [2014] FamCAFC 128
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363

APPLICANT:

Ms Bowen

RESPONDENT:

Mr Sawer

FILE NUMBER:

LNC

198

2016

DATE DELIVERED:

27 April 2018

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Austin J

HEARING DATE:

26 & 27 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Mooney

SOLICITOR FOR THE APPLICANT:

Legal Solutions Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

Orders

For the contravention of orders made on 31 July 2017 without reasonable excuse by the father on 12 January 2018, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into a Good Behaviour Bond upon the following conditions:
a.The bond shall be without surety and without security;
b.The father must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and
c.The bond shall be for a period of two months commencing on the date the father enters into the bond.
For the contravention of orders made on 31 July 2017 without reasonable excuse by the father on 22 January 2018, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into a Good Behaviour Bond upon the…

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 BOWEN & SAWER

Details

AGLC: BOWEN & SAWER [2018] FamCA 367
Case: [2018] FamCA 367
Decision Date: 27 April 2018

CaseChat Overview and Summary

In the matter of *Bowen & Sawyer*, Austin J of the Family Court of Australia considered applications concerning contraventions of existing parenting orders and proposed variations to those orders. The father was found to have contravened the court's orders on three separate occasions without reasonable excuse. The mother sought variations to the final orders made in July 2017, including a proposal to suspend the child's visit with the father for a specific weekend, which was ultimately not granted due to a lack of changed circumstances. The father also sought variations, including a reversal of the child's residence and restrictions on the mother's contact with her partner, but these were also dismissed.

The central legal issues before the court were whether the father had contravened the parenting orders, and if so, how those contraventions should be dealt with under the Family Law Act 1975 (Cth). The court was also required to determine the merits of the parties' respective applications for variation of the existing final orders.

Austin J reasoned that the father's contraventions were established and should be addressed under Subdivision F of Division 13A of Part VII of the Family Law Act. The court determined that the father's applications for variation of the final orders lacked sufficient grounds, particularly the proposed reversal of residence and the requested restraint orders against the mother. Consequently, the court ordered the father to enter into concurrent good behaviour bonds for a total duration of six months, commencing from the date of entry. Furthermore, the father's time with the child was suspended until the latter of his entry into the good behaviour bonds or a specified time on a subsequent day. The father was also ordered to pay the mother's costs for the enforcement hearing in the sum of $1,500.

Orders

Orders of the court

For the contravention of orders made on 31 July 2017 without reasonable excuse by the father on 12 January 2018, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into a Good Behaviour Bond upon the following conditions:

a. The bond shall be without surety and without security;

b. The father must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

c. The bond shall be for a period of two months commencing on the date the father enters into the bond.

For the contravention of orders made on 31 July 2017 without reasonable excuse by the father on 22 January 2018, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into a Good Behaviour Bond upon the following conditions:

a. The bond shall be without surety and without security;

b. The father must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

c. The bond shall be for a period of six months commencing on the date the father enters into the bond.

For the contravention of orders made on 31 July 2017 without reasonable excuse by the father on 21 March 2018, pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into a Good Behaviour Bond upon the following conditions:

a. The bond shall be without surety and without security;

b. The father must be of good behaviour for the duration of the bond, which shall include compliance with all existing parenting orders; and

c. The bond shall be for a period of six months commencing on the date the father enters into the bond.

By consent, Order 1.8 made on 31 July 2017 is discharged.

Orders 1.6, 1.7(a) and 1.7(d) made on 31 July 2017 are suspended until the latter occurrence of:

a. The father’s entry into the good behaviour bonds pursuant to Orders 1 to 3 inclusive hereof; or

b. 9.00am on Saturday 28 April 2018.

Otherwise, save as to costs:

a. The Initiating Application filed on 24 January 2018 is dismissed;

b. The Initiating Application filed on 23 March 2018 is dismissed;

c. The Further Amended Application in a Case filed on 24 April 2018 is dismissed;

d. The Application-Contravention filed on 24 January 2018 is dismissed;

e. The Application-Contravention filed on 29 March 2018 is dismissed; and

f. Any and all other outstanding applications are dismissed.

The father shall pay the mother’s costs of and incidental to the enforcement hearing on 26 April 2018, such costs assessed in the sum of $1,500.00, within six months of the date of these orders.

The parties shall otherwise bear his and her own costs of these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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