CROWE & HOWELL - [2015] FCCA 283

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROWE & HOWELL

[2015] FCCA 283

Catchwords:
FAMILY LAW – Sentencing following admission of breaches of orders – considerations of volume, nature and period of time over which admitted breaches occurred.

Legislation:

Family Law Act 1975, s.70NEA(1) – (4), NFA(1) – (4)

Cummings & Cummings (1976) FLC ¶90-100
Elspeth & Peter [2007] FamCA 655
Elspeth, Mark & John v Peter (Penalty & Costs) (2007) 214 FLR 116; 37 Fam LR 696; FLC ¶93-341
McClintock v Levier (2009) 41 Fam LR 245; (2009) FLC ¶93-401
Markarian v The Queen (2005) 228 CLR 357
NP & AP (No.2) [2006] FamCA 869
Pearce v The Queen (1998) 194 CLR 610
R v Geddes (1936) 36 SR (NSW) 554

Applicant:

MR CROWE

Respondent:

MS HOWELL

File Number:

PAC 427 of 2013

Judgment of:

Judge Neville

Hearing date:

27 November 2014

Date of Last Submission:

On the papers

Delivered at:

Canberra

Delivered on:

13 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr G Howard

Solicitors for the Applicant:

Farrell Lusher, Wagga Wagga

Solicitors for the Respondent:

Maggie Orman Pty Ltd, Wagga Wagga

ORDERS

The Mother is to undertake a post-separation parenting course if she has not already done so and is to provide evidence of that course to the Independent Children’s Lawyer.
In accordance with s 68B of the Family Law Act 1975 an injunction is ordered, restraining the Mother from assaulting, molesting, harassing, threatening or otherwise interfering with the Father and/or the Father’s Wife.
The Mother is to pay the sum of $1,400.00 by way of fine pursuant to s 70NFB(2)(b) of the Family Law Act 1975.
The Mother pay the Father’s costs in the sum of $5,000.00.

IT IS NOTED that publication of this judgment under the pseudonym Crowe & Howell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

PAC 427 of 2013

MR CROWE

Applicant

And

MS HOWELL

Respondent

REASONS FOR JUDGMENT

Introduction

Parenting orders were made by consent, initially on an interim basis in May 2013 and on a final basis on 27^th November 2014.
Order 28 of the May 2013 orders was in the following terms:
That the parties limit their communications with each other to matters regarding the arrangements, health or well-being of the children.
On 18^th November 2013, the Father filed a contravention application which asserted that the Mother had contravened Order 28 on 92 occasions. The Mother has since admitted to each and every one of the contraventions. Accordingly, with the final parenting orders now having been agreed and made, the remaining issue to be determined is the penalty to be imposed in relation to the admitted breaches.
Both parties filed written submissions in relation to penalty.
These reasons proceed as follows: (a) summary of relevant facts; (b) outline of submissions; (c) consideration and disposition.

Summary of Relevant Facts

Notwithstanding that the Mother has candidly admitted the breaches of order 28, the frequency and nature of…

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 CROWE & HOWELL

Details

AGLC: Crowe and Howell [2015] FCCA 283
Case: [2015] FCCA 283
Decision Date: 13 February 2015

CaseChat Overview and Summary

In the matter of *Crowe & Howell*, heard before Judge Neville, the dispute concerned parenting arrangements and contravention of court orders. The proceedings involved allegations of the Mother contravening previous parenting orders and applications for injunctive relief and penalties.

The court was required to determine whether the Mother had contravened specific orders made under the *Family Law Act 1975* (Cth). Additionally, the court considered the appropriate response to such contraventions, including the imposition of penalties and the necessity of injunctive orders to protect the Father and his current wife from the Mother's conduct. The court also had to assess the need for the Mother to undertake a post-separation parenting course.

Judge Neville found that the Mother had contravened the parenting orders and, in exercising the court's broad powers under the *Family Law Act 1975*, ordered the Mother to undertake a post-separation parenting course and provide proof of completion to the Independent Children’s Lawyer. Furthermore, an injunction was granted under s 68B of the Act, prohibiting the Mother from assaulting, molesting, harassing, threatening, or otherwise interfering with the Father and his wife. The Mother was also fined $1,400.00 pursuant to s 70NFB(2)(b) of the Act for her contraventions. Finally, the Mother was ordered to pay the Father's costs in the amount of $5,000.00.

Orders

Orders of the court

The Mother is to undertake a post-separation parenting course if she has not already done so and is to provide evidence of that course to the Independent Children’s Lawyer.

In accordance with s 68B of the Family Law Act 1975 an injunction is ordered, restraining the Mother from assaulting, molesting, harassing, threatening or otherwise interfering with the Father and/or the Father’s Wife.

The Mother is to pay the sum of $1,400.00 by way of fine pursuant to s 70NFB(2)(b) of the Family Law Act 1975.

The Mother pay the Father’s costs in the sum of $5,000.00.

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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