BRADBURY & LANDER - [2019] FamCA 22

FAMILY COURT OF AUSTRALIA

BRADBURY & LANDER

[2019] FamCA 22

FAMILY LAW – ORDERS – Alleged Contravention of Parenting Orders – Where contravention application made under Division 13A – meaning of “intentionally” in relation to a contravention – sufficient that conduct contravening the Order is engaged in intentionally – not necessary that a person knows that the conduct constitutes a contravention – distinction between finding a contravention and finding a reasonable excuse for a contravention – reasonable excuse for a contravention – failure to understand obligations – whether the Respondent should be excused for the contravention.

FAMILY LAW – CHILDREN – Non-Denigration Orders – Where orders made restraining a party from “insulting or denigrating the other parent” – meaning of “denigrate” considered by the Court.

Family Law Act 1975 (Cth) - ss 70NAC, 70NAE

Metcash Trading Ltd v Bunn (No. 5) [2009] FCA 16
Ongal v Materns (2015) 54 Fam LR 86
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Bradbury

RESPONDENT:

Ms Lander

INDEPENDENT CHILDREN’S LAWYER:

Yeend & Associates

FILE NUMBER:

CAC

239

2017

DATE DELIVERED:

24 January 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

22 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J Haddock

SOLICITOR FOR THE APPLICANT:

Infinity Legal

SOLICITOR FOR THE RESPONDENT:

Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Burgess

Orders

The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 25 April 2017.
The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 27 April 2017.
The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 25 November 2017.
The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 10 January 2018
The proceedings are adjourned to 14 March 2019 at 10am for the determination of the consequences of the contraventions and any costs application.
The Applicant is directed to file any further material he intends to rely upon for the purpose of that determination by no later than 21 February 2019.
The Respondent is directed to file any further material she intends to rely upon for the purpose of that determination by no later than 7 March 2019.
The material referred to in the immediately preceding orders is directed to be limited to matters relevant to determining the consequences of the contraventions and any costs application.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradbury & Lander has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy…

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.

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Details

AGLC: BRADBURY & LANDER [2019] FamCA 22
Case: [2019] FamCA 22
Decision Date: 24 January 2019

CaseChat Overview and Summary

In the matter of *Bradbury & Lander*, Gill J of the Family Court of Australia considered an application alleging contravention of parenting orders. The dispute centred on whether the respondent had intentionally contravened an order restraining a party from "insulting or denigrating the other parent".

The court was required to determine the meaning of "intentionally" in the context of a contravention application under Division 13A of the relevant legislation. Specifically, the court had to consider whether it was sufficient that the conduct contravening the order was engaged in intentionally, or if it was necessary for the respondent to know that their conduct constituted a contravention. The court also had to distinguish between finding a contravention and finding a reasonable excuse for a contravention, including whether a failure to understand obligations could constitute a reasonable excuse.

Gill J reasoned that for a contravention to be intentional, it is sufficient that the party intentionally engaged in the conduct that contravened the order, without necessarily knowing that the conduct constituted a contravention. The court found that the respondent had contravened Order 6 of the parenting orders on multiple occasions. The court adjourned the proceedings to determine the consequences of these contraventions and any costs application, directing both parties to file further material relevant to these matters.

Orders

Orders of the court

The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 25 April 2017.

The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 27 April 2017.

The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 25 November 2017.

The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 10 January 2018

The proceedings are adjourned to 14 March 2019 at 10am for the determination of the consequences of the contraventions and any costs application.

The Applicant is directed to file any further material he intends to rely upon for the purpose of that determination by no later than 21 February 2019.

The Respondent is directed to file any further material she intends to rely upon for the purpose of that determination by no later than 7 March 2019.

The material referred to in the immediately preceding orders is directed to be limited to matters relevant to determining the consequences of the contraventions and any costs application.

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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