Denny and Denny - [2006] FMCAfam 49

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENNY & DENNY

[2006] FMCAfam 49

FAMILY LAW – Contravention – breach of orders made by Brown J on
10 March 2005 – 7 separate allegations proved – penalty to be imposed – serious disregard of orders contravened – respondent released on bond subject to conditions.

FAMILY LAW – Judgments and orders – meaning of alternative weekend contact – alternative weekend means second weekend after holiday period.

Family Law Act1975, Div.13A, s.70NJ

Denny & Denny [2005] FamCA 141
Lamont & Bright (unreported, Family Court of Australia, 6 April 2000)

Applicant:

MR DENNY

Respondent:

MS DENNY

File Number:

DGM 3905 of 2005

Judgment of:

Riethmuller FM

Hearing dates:

17 & 19 January 2006

Date of Last Submission:

19 January 2006

Delivered at:

Dandenong

Delivered on:

19 January 2006

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

In person

ORDERS

THE COURT FINDS THAT:

On the contravention application of the father filed on 15 December 2005 and upon hearing the applicant father and respondent mother in person, the Court being satisfied that the wife has without reasonable excuse committed contraventions of an Order under the Family Law Act affecting children, being contraventions of paragraph 3(a) of the Orders made in the Family Court of Australia on 10 March 2005 on :
(a)18 March 2005;
(b)15 April 2005;
(c)27 May 2005;
(d)24 June 2005;
(e)22 July 2005;
(f)5 August 2005;
(g)19 August 2005;
(h)14 October 2005.

THE COURT ORDERS THAT:

The court being satisfied that the mother behaved in a way that shows serious disregard of her obligations within the meaning of s.70NJ of the Family Law Act1975, it is ordered that the wife enter into a bond for 12 months requiring her to:
(a)be of good behaviour;
(b)attend upon a counsellor as decided by the counsellor but no less than once a month - such counselling to occur at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
(c)attend a post separation parenting program - such counselling to occur at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
The Orders of Brown J of 10 March 2005 be varied such that :
(a)Order (3)(a) reads:
“until such time as [L] commences school, on each alternate weekend from 6:00p.m Friday until 4:45p.m Sunday;”
(b)Adding (iii) to Order (3)(b) which reads:
“that in 2006 the father have contact from 4:00pm on 21 May 2006 to 4:00p.m. on 28 May 2006 and order 3(b)(ii) be suspended in 2006;”
(c)Order (10) be amended to read:
“(a)at the Child Care Centre on [address omitted] in [N] at the commencement of contact; and
(b)at [N] Contact Centre at the conclusion of contact;
(c)if the child is not in attendance at the Child Care Centre or [N] Contact Centre is not available, contact change over will take place in the reception area of [N] Police Station;
(d)the father meet the fees imposed…

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 Denny and Denny

Details

AGLC: Denny and Denny [2006] FMCAfam 49
Case: [2006] FMCAfam 49
Decision Date: 19 January 2006

CaseChat Overview and Summary

In the case of Denny and Denny, the father filed an application for contravention against the mother, alleging that she had repeatedly failed to comply with various court orders concerning their child, [L], born in 2002. The Family Court of Australia was tasked with determining whether the mother had contravened the specific orders and what consequences should follow from her actions. The legal issues before the court were whether the mother had breached the court orders and, if so, what sanctions were appropriate under the Family Law Act 1975.

The court found that the mother had indeed contravened several court orders on multiple occasions, including specific instances from March to October 2005. The court was satisfied that the mother's actions demonstrated a serious disregard for her obligations, warranting the imposition of a bond under section 70NJ of the Family Law Act. The court ordered the mother to enter into a bond requiring her to attend monthly counselling and a post-separation parenting program. Additionally, the court varied existing contact orders to adjust the schedule and location of contact between the father and the child, and mandated the use of a communication book to ensure effective information exchange between the parties. The court also imposed restrictions on the removal of the child from Australia and required the child's name to be placed on the Airport Watch list. Furthermore, the court dismissed the mother's application, finding no grounds for the relief she sought.

These orders reflect the court's determination to enforce compliance with its previous directions and to safeguard the welfare of the child by imposing structured obligations on the mother. The court's decision underscores the seriousness of non-compliance with court orders in family law matters and the potential consequences for those who fail to adhere to them.

Orders

Orders of the court

THE COURT FINDS THAT:

On the contravention application of the father filed on 15 December 2005 and upon hearing the applicant father and respondent mother in person, the Court being satisfied that the wife has without reasonable excuse committed contraventions of an Order under the Family Law Act affecting children, being contraventions of paragraph 3(a) of the Orders made in the Family Court of Australia on 10 March 2005 on :

(a) 18 March 2005;

(b) 15 April 2005;

(d) 24 June 2005;

(e) 22 July 2005;

(f) 5 August 2005;

(g) 19 August 2005;

(h) 14 October 2005.

THE COURT ORDERS THAT:

The court being satisfied that the mother behaved in a way that shows serious disregard of her obligations within the meaning of s.70NJ of the Family Law Act 1975, it is ordered that the wife enter into a bond for 12 months requiring her to:

(a) be of good behaviour;

(b) attend upon a counsellor as decided by the counsellor but no less than once a month - such counselling to occur at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.

(c) attend a post separation parenting program - such counselling to occur at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.

The Orders of Brown J of 10 March 2005 be varied such that :

(a) Order (3)(a) reads:

“until such time as [L] commences school, on each alternate weekend from 6:00p.m Friday until 4:45p.m Sunday;”

(b) Adding (iii) to Order (3)(b) which reads:

“that in 2006 the father have contact from 4:00pm on 21 May 2006 to 4:00p.m. on 28 May 2006 and order 3(b)(ii) be suspended in 2006;”

“(a) at the Child Care Centre on [address omitted] in [N] at the commencement of contact; and

(b) at [N] Contact Centre at the conclusion of contact;

(c) if the child is not in attendance at the Child Care Centre or [N] Contact Centre is not available, contact change over will take place in the reception area of [N] Police Station;

(d) the father meet the fees imposed by [N] Contact Centre.”

In addition to the contact ordered by Brown J:

(a) The father have contact from 6:00p.m. on 3 February 2006 to 6:45p.m. on 11 February 2006;

(b) Following the contact in (a), the father’s weekend contact resume on 17 February 2006.

The parties forthwith commence and maintain a communication book with respect to the child [L] born [in] 2002, which book shall travel with the said child between the parties’ respective places of residence.

Pursuant to s.65L (a) of the Family Law Act 1975, the Director of Court Counselling in the Dandenong Registry of the Family Court of Australia do appoint a counsellor for a period of 12 months to:

(a) supervise compliance with these orders; and

(b) assist the parties (in particular the mother) in relation to compliance and the carrying out of these orders.

Each parent notify the other of their address and mobile telephone phone number within 48 hours of any change thereof.

The mother provide the father with the name, address and telephone number of the Child Care Centre by 12:00p.m. on 20 January 2006 and that she notify the child care centre of these orders and the father’s name and telephone number.

Each party be and hereby are restrained from removing and/or causing or allowing the child [L] born [in] 2002 to be removed from the Commonwealth of Australia.

IT IS FURTHER ORDERED THAT:

10.

The Australian Federal Police place the name of the said child [L] on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.

11.

The mother’s application filed by leave on 19 January 2006 be dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B. A copy of the orders of Brown J referred to herein are annexed hereto.

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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