Finch and Harris (No.3) - [2014] FCCA 2527

FEDERAL CIRCUIT COURT OF AUSTRALIA

FINCH & HARRIS (No.3)

[2014] FCCA 2527

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – reasonable excuse – where respondent found to have contravened parenting orders on five occasions – where respondent claims to have a reasonable excuse for each of the contraventions – whether reasonable excuse established – reasonable excuse established in respect of one contravention – where respondent did not prove that she had a reasonable excuse for four other contraventions – less serious contraventions – consequential orders.

Legislation:

Family Law Act 1975 (Cth), ss.70NAE, 70NAF, 70NEA, 70NEB, 70NEC

Cases cited:
Finch & Harris [2014] FCCA 2152
Finch & Harris (No.2) [2014] FCCA 2507

Applicant:

MR FINCH

Respondent:

MS HARRIS

File Number:

SYC 7893 of 2011

Judgment of:

Judge Scarlett

Hearing dates:

26 May, 28 October 2014

Date of Last Submission:

28 October 2014

Delivered at:

Sydney

Delivered on:

5 November 2014

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

The Respondent Mother has established a reasonable excuse for contravening on a date in February 2014 Order 19 made on 8 May 2013.
The Respondent Mother did on 5 June 2013 without reasonable excuse contravene Order 26 made on 8 May 2013 in that she failed to make an appointment and consult with Dr G or another paediatric surgeon in respect of the medical condition of the child X born (omitted) 2013.
The Respondent Mother did on a date in June 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
The Respondent Mother did on a date in July 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
The Respondent Mother did on a date in August 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.
Order 26 made by consent on 8 May 2013 is discharged and in substitution therefor the following Order is made:
With twenty eight (28) days of the date of this Order the Respondent Mother is to do all acts and things necessary to make an appointment in order to consult with Dr G or such other paediatric surgeon as the Respondent shall choose for the purpose of making such arrangements as may be necessary for the repair of the child X’s umbilical hernia and circumcision of the child’s penis.
The Court makes no other Orders as a consequence of the above contraventions.
All other Applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Finch & Harris (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

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.3)

Details

AGLC: Finch and Harris (No.3) [2014] FCCA 2527
Case: [2014] FCCA 2527
Decision Date: 5 November 2014

CaseChat Overview and Summary

In *Finch and Harris (No.3)*, the Federal Circuit Court of Australia considered applications by the Applicant Father concerning alleged contraventions of court orders by the Respondent Mother. The dispute centred on the Respondent Mother's compliance with orders relating to the medical and psychological care of the child, X.

The court was required to determine whether the Respondent Mother had contravened specific orders made on 8 May 2013, and if so, whether she had a reasonable excuse for any such contraventions. The orders in question concerned the scheduling of medical consultations with a paediatric surgeon and psychological counselling sessions for the child.

Judge Scarlett found that the Respondent Mother had a reasonable excuse for contravening one order in February 2014. However, the court determined that she had contravened other orders on multiple occasions in June, July, and August 2013 without reasonable excuse, specifically failing to make appointments for medical consultations and psychological support for the child. Consequently, the court discharged one of the original orders and substituted it with a new order requiring the Respondent Mother to arrange a consultation with a paediatric surgeon within 28 days for the purpose of addressing the child's umbilical hernia and circumcision. No other orders were made as a result of the contraventions, and all other applications were dismissed.

Orders

Orders of the court

The Respondent Mother has established a reasonable excuse for contravening on a date in February 2014 Order 19 made on 8 May 2013.

The Respondent Mother did on 5 June 2013 without reasonable excuse contravene Order 26 made on 8 May 2013 in that she failed to make an appointment and consult with Dr G or another paediatric surgeon in respect of the medical condition of the child X born (omitted) 2013.

The Respondent Mother did on a date in June 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.

The Respondent Mother did on a date in July 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.

The Respondent Mother did on a date in August 2013 without reasonable excuse contravene Order 36 made on 8 May 2013 in that she failed to contact Ms B, psychologist, for the purpose of the said child X receiving a counselling support session.

Order 26 made by consent on 8 May 2013 is discharged and in substitution therefor the following Order is made:

With twenty eight (28) days of the date of this Order the Respondent Mother is to do all acts and things necessary to make an appointment in order to consult with Dr G or such other paediatric surgeon as the Respondent shall choose for the purpose of making such arrangements as may be necessary for the repair of the child X’s umbilical hernia and circumcision of the child’s penis.

The Court makes no other Orders as a consequence of the above contraventions.

All other Applications are dismissed.

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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