FAMILY COURT OF AUSTRALIA
| CHILDERS & LESLIE | [2008] FamCAFC 5 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Orders – Child to spend time with father – Contravention – Whether the mother had a reasonable excuse – The mother argued that she had a reasonable excuse because the child was ill and that it was the wish of the child to be cared for at home by the mother – On appeal, contended that the Federal Magistrate should not have found the mother’s excuse made out because the mother’s evidence did not meet the terms of s 70NAE(5) – Onus of proving reasonable excuse lay upon the mother – Evidence about the child’s health was not expressly addressed in terms of whether it constituted “reasonable grounds” for a belief that contravention was necessary to protect the child’s health – Discussion about the application of s 70NAE(5) – Failure of the Federal Magistrate to apply s 70NAE(5) – Test of “reasonableness” in relation to “reasonable excuse” under s 70NAE – Whether an inference can be drawn from events ex post facto to the contravention, if those events are relevant |
| Family Law Act 1975 (Cth); Part VII; ss 60B; 60B(2); 65N(2); 70NAE; 70NAE(1); 70NAE(2)(b); 70NAE(4); 70NAE(5); 70NAE(6); 70NAE(7); 70NDA(c) |
| Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 In the Marriage of Gaunt (1978) FLC 90-468 In the Marriage of Lutze (1979) 5 FamLR 553 In the Marriage of Stevenson and Hughes (1993) FLC 92-363 Oxley and Inglis [2007] FamCA 1606 |
| APPELLANT: | MR CHILDERS |
| RESPONDENT: | MS LESLIE |
| FILE NUMBER: | NA | 64 | of | 2007 |
| APPEAL NUMBER: | BRM | 10381 | of | 2004 |
| DATE DELIVERED: | 18 January 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 8 January 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 24 August 2007 |
| LOWER COURT MNC: | [2007] FMCAfam1041 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr P Baston |
| SOLICITOR FOR THE APPELLANT: | Nita Stratton-Funk & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr S Fisher |
| SOLICITOR FOR THE RESPONDENT: | Neumann Turnour Lawyers |
Orders
That the appeal against order 1 of the orders of Spelleken FM made 24 August 2007 be allowed.
That a finding be recorded that the mother, without reasonable excuse, contravened the orders of the Federal Magistrates Court made on 26 August 2005, by refusing to allow the father to spend time with the child [X] at 2.00pm on 10 March 2007.
That there be no further order pursuant to s 70NEB of the Family Law Act 1975 (Cth).
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Warnick delivered this day will for all publication and reporting purposes be referred to as Childers and Leslie.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA64 of 2007
File Number: BRM 10381 of 2004
| MR CHILDERS |
Appellant
And
| MS LESLIE |
Respondent
REASONS FOR JUDGMENT
This appeal involves features typical of a great many applications that…
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- AGLC
- Childers & Leslie [2008] FamCAFC 5
- Case
- [2008] FamCAFC 5
- Decision Date
CaseChat Overview and Summary
The case of Childers & Leslie involved an appeal from a decision of a Federal Magistrate concerning child custody arrangements. The mother had been found to have contravened court orders by preventing the child from spending time with the father. The mother claimed a reasonable excuse for this contravention, citing the child's illness and the child's preference to stay home with her. The appeal focused on whether the Federal Magistrate erred in finding the mother's excuse reasonable under the relevant section of the Family Law Act.
The central legal issue was whether the Federal Magistrate correctly applied the legal standard for determining if the mother had a reasonable excuse for the contravention. Specifically, it was questioned whether the evidence presented met the criteria for a "reasonable excuse" under section 70NAE(5) of the Family Law Act. The mother argued that the Federal Magistrate should not have accepted her excuse as reasonable, claiming that the evidence regarding the child's health did not explicitly support the necessity of the contravention for the child's health. The appeal also questioned whether the Magistrate erred in not considering inferences drawn from events that occurred after the contravention.
The court found that the Federal Magistrate did not adequately address the relevant legal criteria in determining if the mother's excuse was reasonable. The Magistrate did not make findings on whether the child's health constituted "reasonable grounds" for the contravention, nor did the Magistrate assess the mother's beliefs on the matter. The court emphasised the importance of applying section 70NAE(5) correctly and noted that the mother's evidence did not expressly address the necessity of the contravention for the child's health. The court concluded that the Magistrate's failure to apply the correct legal test constituted an error.
In light of these findings, the appeal was allowed, and the court recorded a finding that the mother, without reasonable excuse, contravened the Federal Magistrates Court orders. No further order was made under section 70NEB of the Family Law Act.
The central legal issue was whether the Federal Magistrate correctly applied the legal standard for determining if the mother had a reasonable excuse for the contravention. Specifically, it was questioned whether the evidence presented met the criteria for a "reasonable excuse" under section 70NAE(5) of the Family Law Act. The mother argued that the Federal Magistrate should not have accepted her excuse as reasonable, claiming that the evidence regarding the child's health did not explicitly support the necessity of the contravention for the child's health. The appeal also questioned whether the Magistrate erred in not considering inferences drawn from events that occurred after the contravention.
The court found that the Federal Magistrate did not adequately address the relevant legal criteria in determining if the mother's excuse was reasonable. The Magistrate did not make findings on whether the child's health constituted "reasonable grounds" for the contravention, nor did the Magistrate assess the mother's beliefs on the matter. The court emphasised the importance of applying section 70NAE(5) correctly and noted that the mother's evidence did not expressly address the necessity of the contravention for the child's health. The court concluded that the Magistrate's failure to apply the correct legal test constituted an error.
In light of these findings, the appeal was allowed, and the court recorded a finding that the mother, without reasonable excuse, contravened the Federal Magistrates Court orders. No further order was made under section 70NEB of the Family Law Act.
Orders
Orders of the court
1.
That the appeal against order 1 of the orders of Spelleken FM made 24 August 2007 be allowed.
2.
That a finding be recorded that the mother, without reasonable excuse, contravened the orders of the Federal Magistrates Court made on 26 August 2005, by refusing to allow the father to spend time with the child [X] at 2.00pm on 10 March 2007.
3.
That there be no further order pursuant to s 70NEB of the Family Law Act 1975 (Cth).
Background
Background to the litigation
In G v H (1994) 124 ALR 353 at 355, Brennan and McHugh JJ said:An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. … But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle. (emphasis added) There is no fundamental reason why the proof of facts relevant to a contravention on a particular occasion may not in part depend on inferences about those facts drawn from findings about ex post facto events. While in the paragraphs quoted the learned Magistrate indicated an awareness of the father’s contentions of the relevance of ex post facto events, as seen, in paragraph 16, she did not deal with the question of the significance of those events to acts directly bearing upon the question of “reasonable excuse” on 10 March, but rather, merely expressed satisfaction that the mother had made appropriate arrangements for the child’s care in the following week. In my view, the failure to address the father’s arguments constitutes appealable error. While the lack of fact-finding directed to the application of section 70NAE(5) constitutes some impetus for a remission, Mr Baston urges that I reconsider the matter. Mr Fisher does not urge otherwise. In view of all the circumstances of the matter, though not without some reservation, I think I should consider the application for myself. I have had regard to the terms of s 70NAE(5). There was no finding, and I was not taken to evidence which might support a finding, that to take the child to the father’s home would have in any way adversely affected the child’s health. There was no finding as to what the mother believed as to that matter. It follows that there was no finding as to “reasonable grounds”, although there were references to the medical evidence, the wishes of the child and a finding overall that the mother had a reasonable excuse. My own perusal of the transcript reveals what I regard as the “high point” of the mother’s excuse, when in response to a suggestion by the father that it would have been reasonable for the child to be brought to stay with him on the Saturday and the Sunday, the mother responded:…Well, that Friday night she had a fever and she was up till – I – she kept me up till 3 in the morning. Every four hours I had to give her Panadol. She had a fever. And then in the morning she started vomiting and all day I had to try and contain the temperature because of the high fever that she was having. So it wasn’t reasonable for me to actually physically take her and take her anywhere and which I didn’t. Her fever continued - - - However, this answer does not expressly address the issue of the “necessity” of retention of the child for her health. In so far as it might impliedly do so, in my view the inference is rebutted by the circumstances later referred to.
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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