Carrington and Gunby (No. 2) - [2013] FamCA 433

FAMILY COURT OF AUSTRALIA

CARRINGTON & GUNBY (NO. 2)

[2013] FamCA 433

FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of three counts – where one of these three counts was dismissed at an earlier hearing – where the mother admitted the other two counts of contravention – where the mother was found not to have a reasonable excuse for the two admitted counts of contravention – consideration of what orders to make arising out of these findings – consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – consideration of whether to order compensatory time pursuant to s 70NEB(1)(b) of the Family Law Act 1975 (Cth) – consideration of best interests – orders for the child to spend compensatory time with the father totalling two weekends – consideration of whether to vary the existing parenting orders pursuant to s 70NBA of the Family Law Act 1975 (Cth) – consideration of best interests – no orders made varying the existing parenting orders – consideration of s 70NEB(1)(d) of the Act – orders made requiring the mother to enter into a bond in accordance with s 70NEC of the Family Law Act 1975 (Cth) for a period of two years on condition that she is to be of good behaviour during the period of the bond and comply with all current and future parenting orders.

Family Law Act 1975 (Cth) s 70NAA, 70NBA, 70NCB, 70NEA, 70NEB, 70NFA, 70NFB

Rice & Asplund (1979) FLC 90-275
Sandler & Kerrington [2007] FamCA 479 (24 May 2007)
Irvin & Carr [2007] FamCA 492 (29 May 2007)
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007)
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072 (13 September 2007)
Dobbs & Brayson [2007] FamCA 1261 (25 October 2007)
McClintock & Levier (2009) 41 Fam LR 245
McLory & McLory [2010] FamCA 305 (23 March 2010)
Gravis & Major [2010] FamCAFC 239 (1 December 2010)

APPLICANT:

Mr Carrington

RESPONDENT:

Ms Gunby

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission

FILE NUMBER:

ADC

4119

2008

DATE DELIVERED:

13 June 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

22 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

n/a

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Swan

SOLICITOR FOR THE RESPONDENT:

Swan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

The child B born on … June 2008 is to spend compensatory time with the father before the end of August 2013 being two extra weekends from Friday 6.00 pm to Sunday 6.00 pm on dates to be agreed by parties and if not agreed as nominated by the Independent Children’s Lawyer.
Within seven [7] days from today the mother Ms Gunby enter into…

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

Case: [2013] FamCA 433
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered two applications for contravention orders filed by Mr Carrington (the father) against Ms Gunby (the mother) concerning their child, B. One of the three alleged contraventions was dismissed at an earlier hearing. The mother admitted the remaining two contraventions and was found not to have a reasonable excuse for them. The court was required to determine what orders should be made consequent to these findings, specifically considering the application of Subdivision E or Subdivision F of Division 13A of Part VII of the *Family Law Act 1975* (Cth), and whether to order compensatory time or vary existing parenting orders.

The court's reasoning focused on the appropriate response to the admitted contraventions, applying the provisions of the *Family Law Act 1975* (Cth) concerning contravention orders. Having found that the mother had contravened the orders without reasonable excuse, the court considered the available sanctions under Subdivisions E and F of Division 13A. The court determined that the contraventions were less serious, thus falling under Subdivision E. In considering the best interests of the child, the court ordered that the child spend compensatory time with the father, totalling two weekends, to be completed by the end of August 2013.

Furthermore, the court considered whether to vary the existing parenting orders under s 70NBA of the Act, but ultimately decided against it, again in consideration of the child's best interests. Instead, pursuant to s 70NEB(1)(d) of the Act, the mother was ordered to enter into a bond for a period of two years. This bond was conditional upon her being of good behaviour and complying with all current and future parenting orders made by the court. The question of costs was adjourned to a later date.

Orders