Finch and Harris (No.2) - [2016] FCCA 1839

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINCH & HARRIS (No.2)

[2016] FCCA 1839

Catchwords:
FAMILY LAW – Children – Contravention – Contravention of Parenting Orders – reasonable excuse – whether reasonable excuse for contravention – order compensating father for lost time.

Legislation:

Family Law Act 1975, ss.70NAC,70NAE, 70NAF, 70NDA, 70NDB, 70NEA, 70NEB, 70NEC

Federal Circuit Court Rules 2001 r. 25B.04

Cases cited:

Caballes & Tallant (2014) FLC 93-596; [2014] FamCAFC 112
Finch & Harris [2016] FCCA 1485
Ramsay & Wade [2014] FCCA 1431
Ramsay & Wade (No.2) [2014] FCCA 1989
Ramsay & Wade (No.4) [2014] FCCA 2333

Applicant:

MR FINCH

Respondent:

MS HARRIS

File Number:

SYC 7893 of 2011

Judgment of:

Judge Scarlett

Hearing dates:

11 & 15 July 2016

Date of Last Submission:

15 July 2016

Delivered at:

Sydney

Delivered on:

20 July 2016

REPRESENTATION

Applicant:

In person (by telephone)

Respondent:

In person

ORDERS

Count Number 1 of the Application – Contravention filed on 6 July 2016 is dismissed.
The Respondent Mother did on 1 July 2016 contravene Order (6)(c) made on 14 June 2016 in that she failed to make the child X born (omitted) 2003 available to travel from Sydney to Adelaide to spend time with the Applicant Father for the purpose of the mid-year school holidays.
The Respondent Mother has established a reasonable excuse for the above contravention.
By way of compensating the Applicant Father for the time lost in respect of the above contravention in accordance with section 70NDB of the Family Law Act 1975 the child X born (omitted) 2003 is to spend time with the Father for the entire school holiday period at the end of the third school term in 2016 from Saturday 24 September 2016 to Sunday 9 October 2016.
For the purposes of the immediately preceding Order:
(a)The child is to travel between Sydney and Adelaide by regular scheduled airline service as an unaccompanied minor;
(b)The parties are to pay the child’s return airfares in equal shares;
(c)The Mother will be responsible for transporting the child to and from Sydney Airport and the Father will be responsible for transporting the child to and from Adelaide Airport;
(d)The child is to be booked to travel from Sydney to Adelaide on the first available flight scheduled to leave Sydney on Saturday 24 September 2016;
(e)The child is to be booked to travel from Adelaide to Sydney on a flight leaving Adelaide and scheduled to arrive in Sydney no later than 6:00 pm on Sunday 9 October 2016;
(f)The Father is to make the child’s flight bookings at least fourteen (14) days prior to Saturday 24 September 2016.
(g)In the event that the child misses his flight or the flight is cancelled or the departure time of the flight is delayed by twenty (20) minutes or more then the parent responsible for arranging for the child to board the flight must inform the other parent by text message of the changes to the child’s flight details.
To avoid confusion Order (6)(d) made on…

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 Finch and Harris (No.2)

Details

AGLC: Finch and Harris (No.2) [2016] FCCA 1839
Case: [2016] FCCA 1839
Decision Date: 20 July 2016

CaseChat Overview and Summary

In *Finch and Harris (No.2)*, the Federal Circuit Court considered an application by the Applicant Father alleging contravention of a parenting order by the Respondent Mother. The dispute centred on the Respondent Mother's failure to make the child, X, available to travel from Sydney to Adelaide to spend time with the Applicant Father during the mid-year school holidays.

The court was required to determine whether the Respondent Mother had contravened the parenting order by failing to facilitate the child's travel, and if so, whether she had established a reasonable excuse for the contravention. The court also had to consider what orders, if any, should be made to compensate the Applicant Father for the lost time.

Judge Scarlett found that the Respondent Mother had indeed contravened the order by failing to make the child available for travel. However, the court also found that the Respondent Mother had established a reasonable excuse for this contravention. In accordance with section 70NDB of the *Family Law Act 1975*, the court ordered that the child X spend the entire school holiday period at the end of the third school term in 2016 with the Applicant Father as compensation for the lost time. Specific arrangements for the child's travel between Sydney and Adelaide, including flight details and parental responsibilities, were also detailed in the orders. Order (6)(d) of the original parenting order was suspended for the relevant period to avoid confusion. No order for costs was made.

Orders

Orders of the court

Count Number 1 of the Application – Contravention filed on 6 July 2016 is dismissed.

The Respondent Mother did on 1 July 2016 contravene Order (6)(c) made on 14 June 2016 in that she failed to make the child X born (omitted) 2003 available to travel from Sydney to Adelaide to spend time with the Applicant Father for the purpose of the mid-year school holidays.

The Respondent Mother has established a reasonable excuse for the above contravention.

By way of compensating the Applicant Father for the time lost in respect of the above contravention in accordance with section 70NDB of the Family Law Act 1975 the child X born (omitted) 2003 is to spend time with the Father for the entire school holiday period at the end of the third school term in 2016 from Saturday 24 September 2016 to Sunday 9 October 2016.

For the purposes of the immediately preceding Order:

(a) The child is to travel between Sydney and Adelaide by regular scheduled airline service as an unaccompanied minor;

(b) The parties are to pay the child’s return airfares in equal shares;

(c) The Mother will be responsible for transporting the child to and from Sydney Airport and the Father will be responsible for transporting the child to and from Adelaide Airport;

(d) The child is to be booked to travel from Sydney to Adelaide on the first available flight scheduled to leave Sydney on Saturday 24 September 2016;

(e) The child is to be booked to travel from Adelaide to Sydney on a flight leaving Adelaide and scheduled to arrive in Sydney no later than 6:00 pm on Sunday 9 October 2016;

(f) The Father is to make the child’s flight bookings at least fourteen (14) days prior to Saturday 24 September 2016.

(g) In the event that the child misses his flight or the flight is cancelled or the departure time of the flight is delayed by twenty (20) minutes or more then the parent responsible for arranging for the child to board the flight must inform the other parent by text message of the changes to the child’s flight details.

To avoid confusion Order (6)(d) made on 14 June 2016 is suspended between 23 September 2016 and 10 October 2016.

No order for costs.

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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