Collins and Ricardo - [2014] FamCA 1155

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO

[2014] FamCA 1155

FAMILY LAW – CHILDREN – CONTRAVENTION – Where the father’s application alleges 19 counts of contravention – Where various allegations did not support a competent allegation and were dismissed – Where 12 allegations were put to the mother – Where the Court found that the mother contravened the orders without reasonable excuse on three occasions – Where the proceedings will be restored to the list to consider any consequential orders and the application is otherwise dismissed.

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

APPLICANT:

Mr Collins

RESPONDENT:

Ms Ricardo

FILE NUMBER:

SYC

4959

2009

DATE DELIVERED:

19 December 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

26 and 27 August 2013; 18, 19 and 20 February 2014;17 – 19 November 2014

REPRESENTATION

APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Autore and Associates Solicitors and Barristers

Orders

The Court found that the mother contravened without reasonable excuse:
a)order 3.5 made on 12 January 2012 in that she failed to advise the father of her address;
b)order 6.1.4 made on 12 January 2012 in that she failed to present the child S to the City 1 Contact Centre at 10.00 am on 6 October 2012; and
c)order 6.1.4 made on 12 January 2012 in that she failed to present the child S to the City 1 Contact Centre at 2.00 pm on 7 October 2012.
The proceedings are to be listed on a date convenient to the parties and the Court in relation to any consequential orders arising under Division 13A of Part VII of the Family Law Act1975 (Cth).
Otherwise the father’s Contravention Application filed 20 March 2013 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4959 of 2009

Mr Collins

Applicant

And

Ms Ricardo

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Collins (“the father”), seeks that Ms Ricardo (“the mother”) be dealt with for contravening parenting orders made by this Court on 12 January 2012. The orders relate to their daughter S (“the child”), who is now six years of age.
The father’s Application was filed 20 March 2013 and was the first of a number of similar applications filed by the father. The father subsequently also filed contempt applications. The mother subsequently also filed contravention proceedings.

HEARING

The hearing of the father’s Application was first fixed for 26 and 27 August 2013. At the end of 27 August 2013, the father’s case had closed. The Application was dismissed in respect of allegations 2, 3, 4, 7, 13, 14 and15. The mother was called on to present her evidence in respect of allegations 1, 5, 6, 8, 9, 10, 11, 12, 16, 17, 18 and 19. The proceedings were adjourned to 18…

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 Collins and Ricardo

Details

AGLC: Collins and Ricardo [2014] FamCA 1155
Case: [2014] FamCA 1155
Decision Date: 19 December 2014

CaseChat Overview and Summary

In *Collins and Ricardo*, heard by Loughnan J, the father sought orders against the mother alleging contravention of parenting orders. The dispute concerned the mother's alleged failure to comply with orders requiring her to advise the father of her address and to present the child, S, for contact at a specified centre on two occasions in October 2012.

The primary legal issue before the Court was whether the mother had contravened the parenting orders without reasonable excuse. This required the Court to determine if the mother's actions or omissions constituted a breach of the specific terms of the orders and, if so, whether any justification existed for such non-compliance.

Loughnan J found that the mother had indeed contravened the parenting orders without reasonable excuse in relation to her failure to advise the father of her address and her failure to present the child S for contact on the two specified dates. However, the Court dismissed the father's broader Contravention Application filed on 20 March 2013. The proceedings were adjourned to a date convenient to the parties and the Court to consider any consequential orders that might arise under Division 13A of Part VII of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

The Court found that the mother contravened without reasonable excuse:

a) order 3.5 made on 12 January 2012 in that she failed to advise the father of her address;

b) order 6.1.4 made on 12 January 2012 in that she failed to present the child S to the City 1 Contact Centre at 10.00 am on 6 October 2012; and

c) order 6.1.4 made on 12 January 2012 in that she failed to present the child S to the City 1 Contact Centre at 2.00 pm on 7 October 2012.

The proceedings are to be listed on a date convenient to the parties and the Court in relation to any consequential orders arising under Division 13A of Part VII of the Family Law Act 1975 (Cth).

Otherwise the father’s Contravention Application filed 20 March 2013 is dismissed.

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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