Davis and Hadlow (No 3)

[2019] FamCA 316

FAMILY COURT OF AUSTRALIA

DAVIS & HADLOW (NO. 3) [2019] FamCA 316

FAMILY LAW – ORDERS – Contravention – Where contravention proven – Consideration as to penalty – Whether to impose penalty for a less serious contravention – Where the mother does not seek a penalty – No orders as to penalty or costs.

APPLICANT: Ms Davis

RESPONDENT: Mr Hadlow

INDEPENDENT CHILDREN’S LAWYER: Denise M Rieniets & Associates Pty Ltd

FILE NUMBER: ADC 3076 of 2017

DATE DELIVERED: 21 May 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 7 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Andersons Solicitors

COUNSEL FOR THE RESPONDENT: Mr McQuade

SOLICITOR FOR THE RESPONDENT: Janson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rieniets

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise M Rieniets & Associates

Orders

1. There be no order as to penalty and no orders as to costs.

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 Davis & Hadlow 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 minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3076 of 2017

Ms Davis

Applicant

And

Mr Hadlow

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Davis (“the mother”) and Mr Hadlow (“the father”) are the parents of Z born in 2016 (“the child”).

2. The mother alleged that the father was in breach of a parenting order pertaining to the child.

3. On 2 May 2019 I found that Count 1 of the Application for Contravention filed 12 February 2019 was proven and that the father was in breach of the order of 6 March 2018 in that he failed to complete his enrolment at a children’s contact service for the purpose of handover.

4. I determined that the breach of the order was at the very low end of the scale and should be regarded as a sub-division E breach namely, a less serious contravention.

5. Section 70NEB of the Family Law Act 1975 (Cth) (“the Act”) sets out the powers of the Court when dealing with penalty for a less serious contravention.

6. The mother does not seek that a penalty be imposed over and above a finding that the father has breached an order thereby reinforcing to him the need for compliance with Court orders or be at risk of any penalty for future breach being dealt with as a more serious contravention.

7. The father does not speak against the mother’s position.

8. Following the contravention hearing, the Court dealt with the future arrangements for handover.

9. The parties were unable to agree whether future handovers should occur at a restaurant or at a children’s contact service.

10. Based upon my finding that the mother’s preference that handover taking place at a children’s contact service was a matter of convenience rather than a pathway to the easy transition of the child between the parties, I determined that there should be a consistency of handover venue. I considered that in the absence of the parties being able to agree a handover venue, then the restaurant as nominated by the parties should be the default position.

11. Whilst it could not be said that the father’s breach is trivial, it is certainly at the lower end of the scale, although the husband’s breach was deliberate and it is only that events have overtaken the parties that a handover at the children’s contact service is no longer necessary.

12. Whilst s 70NEB of the Act provides for the exercise of the Court’s power in circumstances where there is a less serious breach, it is permissive but not mandatory that a penalty be imposed.

Conclusion

1. In all the circumstances and in the absence of any strong submission on behalf of the mother I consider that no penalty should be imposed and I make no orders as to costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 May 2019.

Date: 21 May 2019