Esser & Windmarsh - [2023] FedCFamC2F 629

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Esser & Windmarsh [2023] FedCFamC2F 629

File number(s): CAC 495 of 2018

Judgment of: JUDGE DICKSON

Date of judgment: 26 May 2023

Catchwords: FAMILY LAW – CONTRAVENTION – PARENTING – contraventions of final parenting orders conceded by the mother – reasonable excuse established – contravention applications dismissed

Legislation: Family Law Act 1975 (Cth) ss 70NAE, 70NAF.

Cases cited:
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1958) 118 CLR 618

Childers & Leslie [2008] FamCAFC 5

Perkins & Perkins (1979) FLC 90-600

Keehan & Keehan [2019] FamCAFC 250

Mitty & Mitty [2012] FamCA 329

Seaward & MacDuff [2011] FamCA 1041

Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454,

Vaughton & Randle (No 2) [2013] FamCA 286

Division: Division 2 Family Law

Number of paragraphs: 116

Date of last submission/s: 24 April 2023

Date of hearing: 21 April 2023 & 24 April 2023

Place: Adelaide

Counsel for the Applicant: Mr Finch

Counsel for the Respondent: Ms Behrens

Solicitor for the Respondent: Foster Johnson Lawyers

ORDERS

CAC 495 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ESSER

Applicant

AND:
MS WINDMARSH

Respondent

order made by:

JUDGE DICKSON

DATE OF ORDER:

26 MAY 2023

THE COURT FINDS THAT:
A.The mother contravened Order 6.c.iii.2. of the final orders made by consent on 24 August 2020 ( the said final orders ) by not ensuring that the child X born 2015 (‘the child’) spent time with the father on 17 December 2022;
B.The mother contravened Order 6.c.iv.2. of the said final orders by not ensuring that the child spent time with the father on 23 December 2022;
C.The mother contravened Order 6.c.iii.2.A. of the said final orders by not ensuring that the child spent time with the father on 14 January 2023;
D.The mother contravened Order 6.c.i. of the said final orders by not ensuring that the child spent time with the father on 24 February 2023;
E.The mother contravened Order 6.c.ii. of the said final orders by not ensuring that the child spent time with the father on 1 April 2023;

AND THE COURT FINDS THAT THE MOTHER HAD A REASONABLE EXCUSE WITHIN THE MEANING OF SECTION 70 NAE(5) OF THE FAMILY LAW ACT1975 (CTH) FOR THE SAID CONTRAVENTIONS.
THE COURT ORDERS THAT:
1.The Applications for Contravention filed on 20 January 2023 and 13 April 2023 are hereby dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings…

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 Esser & Windmarsh

Details

AGLC: Esser & Windmarsh [2023] FedCFamC2F 629
Case: [2023] FedCFamC2F 629
Decision Date

CaseChat Overview and Summary

The case of Esser & Windmarsh [2023] FedCFamC2F 629 was heard in the Federal Circuit and Family Court of Australia, Division 2. The applicant, Mr. Esser, filed two applications for contravention against the respondent, Ms. Windmarsh, alleging that she failed to comply with final parenting orders made by consent on 24 August 2020. The mother conceded most of the contraventions but argued she had a reasonable excuse for her non-compliance. The court was required to determine whether Ms. Windmarsh had a reasonable excuse for contravening the final parenting orders under section 70NAE(5) of the Family Law Act 1975 (Cth).

The court found that Ms. Windmarsh had a reasonable excuse for contravening the final orders. The mother had experienced family violence at the hands of the father and had received serious allegations from Ms. C, the father's former partner, about the father's drug and alcohol use, neglect, and family violence. Photographs and documents provided by Ms. C supported her allegations. The court held that it was unreasonable to expect Ms. Windmarsh to "unsee" the evidence provided by Ms. C. The mother's concerns for the child's safety were genuine and based on reasonable grounds. The court further found that the periods of contravention were not longer than necessary to protect the safety of the child. Consequently, the court dismissed both applications for contravention.

In summary, the Federal Circuit and Family Court of Australia, Division 2, found that Ms. Windmarsh had a reasonable excuse for contravening the final parenting orders based on the evidence of family violence, drug and alcohol use, and neglect provided by Ms. C. The court dismissed the applications for contravention filed by Mr. Esser against Ms. Windmarsh.

Orders