Diani and Diani (No.2) - [2019] FCCA 568

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIANI & DIANI (No.2)

[2019] FCCA 568

Catchwords:
FAMILY LAW – Contravention – whether the father has contravened orders made on 18 March 2015 – if contraventions proven, what the penalty should be.

Legislation:

Family Law Act 1975, ss.65N, 70NAC, 70NAD, 70NAE, 70NEB, 70NECA,

70NFA, 70NFB

Federal Circuit Court Rules2001, r.25B.02(2)(a)

Cases cited:

Stamp & Stamp [2014] FCCA 1269
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313
McClintock & Levier [2009] FamCAFC 62

Applicant:

MS DIANI

Respondent:

MR DIANI

File Number:

MLC 5627 of 2007

Judgment of:

Judge Small

Hearing date:

16 March 2018

Date of Last Submission:

16 March 2018

Delivered at:

Melbourne

Delivered on:

8 March 2019

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

None

Counsel for the Respondent:

Self-represented

Solicitors for the Respondent:

None

ORDERS

UPON THE COURT FINDING THAT:

On 20 June 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.
On 1 July 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.
On 19 August 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.
On 26 June 2015, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
On 18 September 2015, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
On 24 June 2016, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
On 16 September 2016, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
On 23 June 2017, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.
It has not been proven that on 17 November 2017, the father contravened paragraph 5(d) of the Final Orders made 18 March 2015.

THE COURT ORDERS THAT:

Within 14 days of the date of these Orders, the father shall enrol in and attend an approved Post-Separation Parenting Course and shall provide to the mother a certificate of completion at the end of that course.
Paragraph 5(e)(ii) of the Orders of 18 March 2015 shall be varied to read:
(ii) the second half of the school term holidays in the 2016 school year and each alternate year thereafter and for the first half of the long summer 2016/2017 holidays until 5pm on 23 December and then from 1pm on 25 December 2016 until the halfway point of the holidays and each alternate year thereafter provided that time in the long school holidays be calculated so that the children return to the Husband not later than 3 calendar days prior to the commencement of the school term, and that the school term holidays be deemed to commence at…

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 Diani and Diani (No.2)

Details

AGLC: Diani and Diani (No.2) [2019] FCCA 568
Case: [2019] FCCA 568
Decision Date: 8 March 2019

CaseChat Overview and Summary

This case involved contravention proceedings initiated by the mother against the father concerning parenting orders made by consent on 18 March 2015. The proceedings concerned allegations that the father had contravened specific paragraphs of these orders relating to the children's time with each parent and communication between the parents. The parties, who had a history of extensive litigation regarding their children, were self-represented.

The court was required to determine whether the father had contravened paragraphs 20 and 5(c) of the Final Orders on various dates, and if so, whether he had a reasonable excuse for these contraventions. Additionally, the court needed to consider whether it had been proven that the father contravened paragraph 5(d) of the Final Orders on a specific date. The legal framework for these determinations was Division 13A of Part VII of the *Family Law Act 1975* (Cth), particularly sections 70NAC and 70NAD, which define what constitutes a contravention of an order and outline requirements implicitly included in parenting orders.

The court found that the father had contravened paragraph 20 of the Final Orders on three separate occasions without reasonable excuse. It also found that the father had contravened paragraph 5(c) of the Final Orders on five occasions, but on each of these instances, he had a reasonable excuse. The court further found that it had not been proven that the father contravened paragraph 5(d) of the Final Orders on the date alleged. Consequently, the court ordered the father to attend an approved Post-Separation Parenting Course and varied paragraphs 5(e)(ii) and 20 of the Final Orders to clarify the arrangements for school holidays and the use of a communications book, respectively.

Orders

Orders of the court

UPON THE COURT FINDING THAT:

On 20 June 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.

On 1 July 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.

On 19 August 2016, the father contravened paragraph 20 of the Final Orders made 18 March 2015 without reasonable excuse.

On 26 June 2015, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.

On 18 September 2015, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.

On 24 June 2016, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.

On 16 September 2016, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.

On 23 June 2017, the father contravened paragraph 5(c) of the Final Orders made 18 March 2015, but he had a reasonable excuse.

It has not been proven that on 17 November 2017, the father contravened paragraph 5(d) of the Final Orders made 18 March 2015.

THE COURT ORDERS THAT:

10.

Within 14 days of the date of these Orders, the father shall enrol in and attend an approved Post-Separation Parenting Course and shall provide to the mother a certificate of completion at the end of that course.

11.

Paragraph 5(e)(ii) of the Orders of 18 March 2015 shall be varied to read:

(ii) the second half of the school term holidays in the 2016 school year and each alternate year thereafter and for the first half of the long summer 2016/2017 holidays until 5pm on 23 December and then from 1pm on 25 December 2016 until the halfway point of the holidays and each alternate year thereafter provided that time in the long school holidays be calculated so that the children return to the Husband not later than 3 calendar days prior to the commencement of the school term, and that the school term holidays be deemed to commence at the conclusion of school on the last day of the school term.

12.

Paragraph 20 of the Orders of 18 March shall be varied to read:

That the parties maintain a communications book for the sole purpose of providing to one another any appropriate information as to the children’s welfare, health or progress, and each party shall enter such messages in the said book, sign it, and return it to the other party at the conclusion of any time during which the children are in their care.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Paragraph 5(e)(ii) of the Orders of 18 March 2015 shall be varied to read:(ii) the second half of the school term holidays in the 2016 school year and each alternate year thereafter and for the first half of the long summer 2016/2017 holidays until 5pm on 23 December and then from 1pm on 25 December 2016 until the halfway point of the holidays and each alternate year thereafter provided that time in the long school holidays be calculated so that the children return to the Husband not later than 3 calendar days prior to the commencement of the school term, and that the school term holidays be deemed to commence at the conclusion of school on the last day of the school term. Paragraph 20 of the Orders of 18 March shall be varied to read:That the parties maintain a communications book for the sole purpose of providing to one another any appropriate information as to the children’s welfare, health or progress, and each party shall enter such messages in the said book, sign it, and return it to the other party at the conclusion of any time during which the children are in their care. These are contravention proceedings issued by the mother, Ms Diani or “the mother”), against the father, Mr Diani or “the father”) in Applications Contravention filed on 24 July 2017 and on 16 November 2017. The orders alleged to have been contravened are parenting orders in relation to the parties’ children [X] born … 2001 (“[X]”) and [Y] born … 2004 (“[Y]”). Those orders were made by consent before Judge Baker on 18 March 2015 (“the Final Orders”). The mother was born on … 1967 and is 51 years old. The father was born on … 1972 and is 46 years old. The parties commenced cohabitation in … 1996, were married in … 1998, separated in November 2005 and divorced in August 2007. [X] and [Y] are the only children of the marriage. [X] has not spent regular time with his mother pursuant to the Final Orders since late 2015, while [Y] does spend that time with Ms Diani. The parties, both of whom have repartnered, have been engaged in almost continuous litigation about the children’s care since 2006. The mother filed a Contravention Application on 24 July 2017 alleging multiple contraventions by the father of the Final Orders made by consent before Judge Baker on 18 March 2015 (“the Final Orders”). On 16 November 2017 the mother filed a second Contravention Application which alleged the father had further contravened the Final Orders. The Final Hearing of those two Applications commenced on 16 March 2018. Both the Mother and Father were self-represented. They were the only witnesses. Following the conclusion of evidence and submissions on 16 March 2018, I reserved my decision. The law in relation to contraventions is found in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Sections 70NAC and 70NAD of the Act set out the meaning of what it is to contravene an order as follows:70NAC Meaning of contravened an order A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:(a) where the person is bound by the order – he or she has:(i) intentionally failed to comply with the order; or(ii) made no reasonable attempt to comply with the order; or(b) otherwise – he or she has:(i) intentionally prevented compliance with the order by a person who is bound by it; or(ii) aided or abetted a contravention of the order by a person who is bound by it.(Note omitted)70NAD Requirements taken to be included in certain ordersFor the purposes of this Division:(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and(b) a parenting order that deals with whom the child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and(d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.

Ratio Decidendi

Legal Principle Established

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