FAMILY LAW - APPEAL – ENFORCEMENT – PARENTING ORDER – Contravention of orders that children spend time with their father – Children aged 12 and 8 refused to go with their father when he came to collect them for one week of the school holidays some three weeks after a contested hearing at which the mother opposed any contact regime being established – The trial judge considered the mother’s failure to ensure the children went with their father was a serious breach and sentenced her to 4 months imprisonment suspended upon condition that she complied with future orders – The mother’s 22 year old son and her son-in-law who were present at the attempted handover were each found to have aided or abetted the contravention and similar sentences were imposed
Held that whilst the trial judge took into account a number of irrelevant considerations, the mother’s contravention was clearly proved and no reasonable excuse was proffered – Mother did not seek to rely on any defence concerning a potential misunderstanding of her positive obligations under the orders to encourage the children to go and spend time with their father (see Stevenson and Hughes (1993) FLC 92-363) – In relation to penalty, the mother’s contravention as constituted by a lack of encouragement, ought not have been seen as showing a serious disregard for her obligations under the orders and being a first contravention, should have attracted only the penalties prescribed by subdivision E (s 70NEA - s 70NEG) of Division 13A of Part VII of the Family Law Act 1975 (Cth)) – Appeal allowed in relation to penalty – Further submissions as to penalty sought
There were no findings by the trial judge of conduct on behalf of the adult son that would support a finding that he aided or abetted the mother’s contravention. Further, there is no evidence that either the adult son or the son-in-law aided or abetted, by intentionally assisting or encouraging, the contravention – Appeal allowed and orders in relation to the adult son and the son-in-law set aside
COSTS – Mother was ordered to pay all costs of the Independent Children’s Lawyer (‘ICL’) in relation to the contravention proceedings on an indemnity basis – As the ICL was not a party to those proceedings a costs order had to be made under s 117 – The ICL accepted that an appropriate order in the circumstances was that the mother pay the ICL’s costs as agreed or in default as assessed – Appeal allowed
[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.
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Details
AGLC
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Case
[2007] FamCA 655
Decision Date
CaseChat Overview and Summary
This matter concerned appeals by Elspeth (the mother), her adult son Mark, and her son-in-law John, against findings of contravention of parenting orders and subsequent penalties imposed by Benjamin J. The dispute arose from the children, aged 12 and 8, refusing to spend time with their father during school holidays, following a contested hearing where the mother had opposed contact. The trial judge found the mother had seriously breached the orders by failing to ensure the children went with their father and sentenced her to a suspended prison term. The mother's son and son-in-law, present at the attempted handover, were also found to have aided and abetted the contravention and received similar sentences.
The court was required to determine whether the trial judge erred in finding that the mother, her son, and her son-in-law had contravened the parenting orders. Specifically, it needed to assess whether the mother's actions constituted a serious contravention and if the penalties imposed were appropriate, considering the statutory framework for contraventions. Furthermore, the court had to consider whether there was sufficient evidence to support findings that Mark and John had aided or abetted the mother's contravention. The appropriateness of the costs order made against the mother in favour of the Independent Children's Lawyer was also a point of appeal.
The Full Court allowed the mother's appeal in relation to penalty. While acknowledging her contravention was proven and no reasonable excuse was offered, the court held that her failure to encourage the children to spend time with their father, as a first contravention, should not have been viewed as a serious disregard for her obligations. Consequently, it should have attracted penalties prescribed by subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth), rather than the more severe sentence imposed. The court also allowed the appeals of Mark and John, finding no evidence that they intentionally assisted or encouraged the contravention, and set aside the orders made against them. The costs order in favour of the Independent Children's Lawyer was varied to reflect that the mother pay the ICL's costs as agreed or assessed.
The court ordered that the original orders against the mother, Mark, and John be set aside, with a determination that Elspeth had contravened the parenting order regarding the children spending time with their father. The mother was ordered to pay the Independent Children's Lawyer's costs. Further written submissions were to be filed by the mother, Mark, and John regarding penalty and costs of the contravention proceedings and the appeal, with the father to file submissions in response, followed by further reply submissions.
Orders
Orders of the court
1. That orders 1, 5, 6,7, 8 and 9 made by Benjamin J on 20 February 2007 be set aside.
2. That there is a determination that Elspeth has contravened an order of the Court made 21 December 2006 in that the children did not spend time with their father on and after 14 January 2007 in accordance with the Order 4(c) made that day.
3. That the mother pay the costs of the Independent Children’s Lawyer in respect of the contravention proceedings as agreed or as assessed under the Family Law Rules 2004.
4. That within 14 days the mother file and serve any written submissions in relation to penalty and in relation to the costs of:
(a) the contravention proceedings; and
(b) the appeal.
5. That within 14 days the second and third appellants Mark and John each file and serve any written submissions relating to the costs of:
(a) the contravention proceedings; and
(b) the appeal.
6. That within 14 days of the receipt by him of any submissions referred to above the respondent father file and serve any submissions in response thereto.
7. That within 7 days of receipt of any submissions in response the mother and the second and third appellants Mark and John each file and serve any further submissions in reply.