Farrow and Byrnes - [2013] FCCA 2245

FEDERAL CIRCUIT COURT OF AUSTRALIA

FARROW & BYRNES

[2013] FCCA 2245

Catchwords:
FAMILY LAW – Parenting – child’s best interests the paramount consideration – contravention of parenting orders – dispute over time the child is to be collected.

Legislation:

Family Law Act 1975 (Cth), pt.VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 69ZT, 69ZW, 69ZX, 70NAE
Police and Criminal Evidence Act 1984 (UK)
Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth), ss.135, 136, 140
Solicitors Advocacy Rules (NSW)
NSW Barristers Rules, rr.56, 60

Jones & Dunkel (1959) 101 CLR 29
Browne & Dunn (1893) 6 R 67 (HL)
Rice & Asplund (1979) FLC 90 – 725
Johnson & Page [2007] FamCA 1235
M & M [1988] HCA 68
Deacon & Castle [2013] FCCA 691
Re F Litigants in Person Guidelines [2001] FamCA 348
Stevenson & Hughes (1993) FLC 92 – 363
Napier & Hepburn (2006) FLC 93 – 303
Potter v Potter (2007) FamCA 350
Briginshaw v Briginshaw (1938) 60 CLR 336
W & W (abuse allegations unacceptable risk) (2005) FLC 93 – 235
S & S [1993] NZFLR 657
M v Y [1994] NZFLR 1
Geremia v Harb (2008) 90 O.R (3d) 185 Sup. Ct. J (Gen. Div Fam.Ct)
Westpac Banking Corporation & Cutajar [2011] FamCAFC 157

Applicant:

MR FARROW

Respondent:

MS BYRNES

File Number:

CAC 869 of 2011

Judgment of:

Judge Harman

Hearing date:

7 November 2013

Date of Last Submission:

7 November 2013

Delivered at:

Canberra

Delivered on:

7 November 2013

REPRESENTATION

Solicitors for the Applicant:

Barker & Barker

Solicitors for the Respondent:

Self-represented

ORDERS

The application in a case filed by the mother on 7 November 2014 is dismissed and removed from the list of cases awaiting hearing.
It is declared that the orders presently operating with respect to the child X born (omitted) 2011 and more particularly the child’s time with the father are orders 4(c) onwards of the orders made on 12 September 2012 and as varied hereby.
Order 4(c) of the orders made on 12 September 2012 is varied so as to provide that X shall spend time with his father from now and until his third birthday each Monday and Tuesday from 8.30am until 3.30pm.
Order 4(d) of the orders made on 12 September 2012 is varied to provide that from the child attaining the age of 3 years, the child shall spend time with the father from 10.00am on Saturday until 10.00am on Sunday each alternate weekend commencing Saturday 22 February 2014 and in addition each Tuesday from 4.00pm until 6.00pm the first period to commence 25 February 2014.
Order 11 of the orders made on 12 September 2012 is varied to provide as follows:
“That changeovers that do not occur at X’s school are to occur in the Food Court (omitted) Mall.”
I find that MS BYRNES has failed without reasonable excuse to have complied with orders made by this Court 12 September 2012 on each of:
(a)8 January 2013;
(b)14 January 2013;
(c)21 January 2013;
(d)22 January…

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 Farrow and Byrnes

Details

AGLC: Farrow and Byrnes [2013] FCCA 2245
Case: [2013] FCCA 2245
Decision Date: 7 November 2013

CaseChat Overview and Summary

In the Family Court of Australia, Judge Harman considered an application filed by the mother on 7 November 2014. The dispute concerned parenting orders for a child, X, born in 2011, and specifically the child's time with the father. The court was required to determine whether the mother had failed to comply with existing court orders and, if so, to consider appropriate sanctions and variations to the parenting arrangements.

The court was tasked with determining the specific orders that should govern the child's time with the father, considering the mother's alleged non-compliance with previous orders made on 12 September 2012. The court also had to assess whether the mother had a reasonable excuse for any failures to comply with these orders and, if a contravention was found, to impose appropriate consequences under section 70NEC of the *Family Law Act 1975*.

Judge Harman found that the mother, Ms Byrnes, had failed without reasonable excuse to comply with the court orders on 31 separate occasions between January and May 2013. Consequently, the court dismissed the mother's application and removed it from the list of cases awaiting hearing. The existing orders regarding the child's time with the father were varied to specify new arrangements for the child's time with the father both before and after the child's third birthday, and to designate a specific location for changeovers not occurring at the child's school. By consent, and given the findings of contravention, Ms Byrnes was required to enter into a two-year bond with self-surety of $3,000, be of good behaviour, comply with all existing orders, and attend a post-separation parenting program.

Orders

Orders of the court

The application in a case filed by the mother on 7 November 2014 is dismissed and removed from the list of cases awaiting hearing.

It is declared that the orders presently operating with respect to the child X born (omitted) 2011 and more particularly the child’s time with the father are orders 4(c) onwards of the orders made on 12 September 2012 and as varied hereby.

Order 4(c) of the orders made on 12 September 2012 is varied so as to provide that X shall spend time with his father from now and until his third birthday each Monday and Tuesday from 8.30am until 3.30pm.

Order 4(d) of the orders made on 12 September 2012 is varied to provide that from the child attaining the age of 3 years, the child shall spend time with the father from 10.00am on Saturday until 10.00am on Sunday each alternate weekend commencing Saturday 22 February 2014 and in addition each Tuesday from 4.00pm until 6.00pm the first period to commence 25 February 2014.

Order 11 of the orders made on 12 September 2012 is varied to provide as follows:

“That changeovers that do not occur at X’s school are to occur in the Food Court (omitted) Mall.”

I find that MS BYRNES has failed without reasonable excuse to have complied with orders made by this Court 12 September 2012 on each of:

(a) 8 January 2013;

(b) 14 January 2013;

(d) 22 January 2013;

(e) 28 January 2013;

(f) 29 January 2013;

(g) 4 February 2013;

(h) 5 February 2013;

(i) 11 February 2013;

(j) 18 February 2013;

(k) 19 February 2013;

(l) 25 February 2013;

(m) 4 March 2013;

(n) 5 March 2013;

(o) 11 March 2013;

(p) 18 March 2013;

(q) 19 March 2013;

(r) 25 March 2013;

(s) 26 March 2013;

(t) 1 April 2013;

(u) 2 April 2013;

(v) 8 April 2013;

(w) 9 April 2013;

(x) 15 April 2013;

(y) 22 April 2013;

(z) 23 April 2013

(aa) 29 April 2013;

(bb) 30 April 2013;

(cc) 6 May 2013;

(dd) 7 May 2013;

(ee) 13 May 2013.

I find and record a contravention of the order on those dates same having occurred without reasonable excuse.

By consent and pursuant to section 70NEC of the Family Law Act 1975 MS BYRNES having been found to have contravened orders of this Court on 31 occasions shall be required to enter a bond for a period of two (2) years from today’s date without security but with self surety of $3,000 and thus that upon any finding within the period of two (2) years from today’s date that a breach of the bond has occurred that a sum of $3,000 shall be forfeited to and the bond shall, in addition, require Ms Byrnes to:

(a) Be of good behaviour;

(b) Comply with such orders as are in force with respect to the child X born (omitted) 2011 including but not limited to orders with respect to that child’s time with the father; and

(c) To forthwith and within seven (7) days contact the appropriate intake officer of the Marymead Centre for the purpose of arranging and attending the first available and offered intake appointment to assess Ms Byrnes’ suitability to enrol in, attend upon and complete a post separation parenting orders program designed to assist her in understanding the importance of compliance with orders of the Court and to act in accordance with the child’s best interests and subject to assessment of suitability to participate in such program, Ms Byrnes shall then attend at such times, dates and places and pay such fees as may be levied to enable completion of that course. The bond is to be entered with the Court no later than 4.00pm on 8 November 2013.

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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