Deakin & Howe

Case [2016] FCCA 2605

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEAKIN & HOWE [2016] FCCA 2605
Catchwords:
FAMILY LAW – Contravention – where father alleged 5 counts but only pressed 4 – where mother admitted the 4 counts – where mother claimed reasonable excuse pursuant to s.70NAE(5) Family Law Act1975 (Cth) – consideration of whether the mother had a reasonable excuse – where mother sought findings of family violence in relation to incidents pre-dating consent orders subject of contravention – where no family violence established – no reasonable excuse for contravention established.

Legislation:

Family Law Act 1975, ss.4AB, 69ZT, 70NAC, 70NAE, 70NDA, 70NEA, 70NFA

Cases cited:

Childers & Leslie (2008) FLC 93-356
Fooks & Clark [2004] FamCA 212
In the Marriage of Gaunt (1978) FLC 90-468
In the Marriage of O’Brien (1993) FLC 92-396
Raider & Raider [2011] FamCA 488
Stamp & Stamp [2014] FCCA 1269
Stevenson & Hughes (1993) FLC 92-363
Taikato v R (1996) 186 CLR 454
Vaughton & Randle (No 2) [2013] FamCA 286
Webber & Budd (No 2) [2011] FamCA 539
Applicant: MR DEAKIN
Respondent: MS HOWE
File Number: SYC 5023 of 2014
Judgment of: Judge Obradovic
Hearing date: 23 September 2016
Date of Last Submission: 23 September 2016
Delivered at: Parramatta
Delivered on: 17 October 2016

REPRESENTATION

Appearing for the Applicant: Mr Bainbridge
Solicitors for the Applicant: Bainbridge Legal
Counsel for the Respondent: Ms Reynolds
Solicitors for the Respondent: Macarthur Law Firm

ORDERS

  1. That a finding be recorded that the mother, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 16 December 2014 in that:

    (a)The mother refused to allow the father to spend time with the children X born on (omitted) 2005, Y born on (omitted) 2007 and Z born on (omitted) 2009 (“the children”) from the conclusion of school on 1 April 2016;

    (b)The mother refused to allow the father to spend time with the children from the conclusion of school on 13 May 2016;

    (c)The mother refused to allow the father to spend time with the children from the conclusion of school on 20 May 2016; and

    (d)The mother refused to allow the father to spend time with the children from the conclusion of school on 27 May 2016.

  2. The matter is listed for directions on 17 October 2016 at 9.30am for the purposes of being allocated a hearing date for sentence in respect of the contraventions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 5023 of 2014

MR DEAKIN

Applicant

And

MS HOWE

Respondent

REASONS FOR JUDGMENT

Introduction

  1. In December 2014 the father and mother reached agreement in respect of parenting arrangements for their three children:

    a)X born (omitted) 2005;

    b)Y born (omitted) 2007; and

    c)Z born (omitted) 2009.

  2. As a result of that agreement and upon application made to the Federal Circuit Court of Australia, the Court made final parenting orders by consent…

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Details
AGLC
Deakin and Howe [2016] FCCA 2605
Case
[2016] FCCA 2605
Decision Date

CaseChat Overview and Summary

In the matter of *Deakin & Howe*, heard by Judge Obradovic, the dispute concerned allegations by the father that the mother had contravened parenting orders made by the Federal Circuit Court on 16 December 2014. Specifically, the father alleged that the mother had, without reasonable excuse, refused to allow him to spend time with the parties' three children on multiple occasions in April and May 2016.

The central legal issue before the court was whether the mother had, in fact, contravened the existing parenting orders by refusing the father contact with the children on the specified dates. The court was required to determine if these refusals constituted a contravention and, if so, whether the mother had a reasonable excuse for her actions.

Judge Obradovic found that the mother had indeed contravened the orders of the Federal Circuit Court on four separate occasions in April and May 2016, by refusing to allow the father to spend time with the children. The court recorded this finding, indicating that no reasonable excuse was accepted for these contraventions. The matter was then adjourned for further directions to schedule a hearing for sentencing in relation to these contraventions.

Orders

Orders of the court

1.

That a finding be recorded that the mother, without reasonable excuse, contravened the orders of the Federal Circuit Court made on 16 December 2014 in that:

(a) The mother refused to allow the father to spend time with the children X born on (omitted) 2005, Y born on (omitted) 2007 and Z born on (omitted) 2009 (“the children”) from the conclusion of school on 1 April 2016;

(b) The mother refused to allow the father to spend time with the children from the conclusion of school on 13 May 2016;

(c) The mother refused to allow the father to spend time with the children from the conclusion of school on 20 May 2016; and

(d) The mother refused to allow the father to spend time with the children from the conclusion of school on 27 May 2016.

2.

The matter is listed for directions on 17 October 2016 at 9.30am for the purposes of being allocated a hearing date for sentence in respect of the contraventions.

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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