Garrety & Steyn

Case [2021] FamCA 67

FAMILY COURT OF AUSTRALIA

Garrety & Steyn [2021] FamCA 67

File number(s): NCC 802 of 2013
Judgment of: AUSTIN J
Date of judgment: 23 February 2021
Catchwords: FAMILY LAW – CHILDREN – CONTRAVENTION – SANCTIONS – Application by the father alleging four contraventions of final parenting orders – Where there are two children aged 11 and 9 – Where the Court is satisfied on the balance of probabilities that three of the contraventions are established – Where the mother failed to establish reasonable excuse – Where the mother is sanctioned under Subdivision E of Division 13A Part VII of the Family Law Act 1975 (Cth) for one count – Where the two remaining contraventions are sanctioned under Subdivision F of Division 13A Part VII of the Family Law Act 1975 (Cth) because they occurred while the mother was already serving good behaviour bonds in relation to proven contraventions in earlier proceedings – Where three good behaviour bonds are imposed upon the mother and the bonds are served cumulatively – Where no orders as to costs.
Legislation:

Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 65NA, 70NAE, 70NEA, 70NEB, 70NEC, 70NECA, 70NFA, 70NFB, 70NFE, 117

Family Law Rules 2004 (Cth) r 21.08

Number of paragraphs: 67
Date of hearing: 12 February 2021
Place: Newcastle
Counsel for the Applicant: Mr Rugendyke
Solicitor for the Applicant: Gillard Family Lawyers
Counsel for the Respondent: Mr Mathews
Solicitor for the Respondent: Pagin & Mak Lawyers

ORDERS

NCC 802 of 2013
BETWEEN:

MR GARRETY

Applicant
AND:

MS STEYN

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

23 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Upon finding that the respondent contravened Order 16 made on 27 March 2019 on 23 March 2020 (Count 1), pursuant to Sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth), she shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a)The bond shall be without surety or security;

(b)To be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and

(c)The bond shall be for a period of one month, commencing on the date she enters into the bond.

2.Upon finding that the respondent contravened Order 13(b) made on 27 March 2019 on 21 June 2020 (Count 2), pursuant to Sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth), she shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a)The bond shall be without surety or security;

(b)To be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and

(c)The bond shall be for a period of six months, served cumulatively upon the bond entered pursuant to Order 1 hereof.

3.Upon finding that the respondent contravened Order 10…

Details
AGLC
Garrety & Steyn [2021] FamCA 67
Case
[2021] FamCA 67
Decision Date

CaseChat Overview and Summary

In *Garrety & Steyn*, heard by Austin J, the father alleged that the mother had contravened final parenting orders on four occasions concerning their two children, aged 11 and 9. The court was required to determine whether these contraventions were established on the balance of probabilities and, if so, whether the mother had a reasonable excuse for her conduct. The court also had to consider the appropriate sanctions under Part VII, Division 13A of the *Family Law Act 1975* (Cth) for any proven contraventions.

The court found that three of the four alleged contraventions were established. The mother failed to establish a reasonable excuse for her actions. For one contravention, the mother was sanctioned under Subdivision E of Division 13A. For the two remaining contraventions, which occurred while the mother was already serving good behaviour bonds from previous proceedings, sanctions were imposed under Subdivision F of Division 13A.

The court reasoned that the mother's complicity in an emergency 000 call concerning one of the children, where police and an ambulance were required due to the child's behaviour, constituted a failure to inform the father as required by the parenting orders. This contravention was sanctioned under Subdivision E. The other two contraventions, occurring during existing good behaviour bonds, were treated more seriously and sanctioned cumulatively under Subdivision F.

Consequently, the mother was ordered to enter into three good behaviour bonds, served cumulatively. The first bond was for one month for the first contravention. The second bond was for six months for the second contravention, served consecutively to the first. The third bond was for three months for the third contravention, served consecutively to the second. The application was otherwise dismissed, and no order was made as to costs.

Orders

Orders of the court

NCC 802 of 2013

BETWEEN:

MR GARRETY

Applicant

AND:

MS STEYN

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

23 FEBRUARY 2021

THE COURT ORDERS THAT:

1. Upon finding that the respondent contravened Order 16 made on 27 March 2019 on 23 March 2020 (Count 1), pursuant to Sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth), she shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a) The bond shall be without surety or security;

(b) To be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and

(c) The bond shall be for a period of one month, commencing on the date she enters into the bond.

2. Upon finding that the respondent contravened Order 13(b) made on 27 March 2019 on 21 June 2020 (Count 2), pursuant to Sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth), she shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a) The bond shall be without surety or security;

(b) To be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and

(c) The bond shall be for a period of six months, served cumulatively upon the bond entered pursuant to Order 1 hereof.

3. Upon finding that the respondent contravened Order 10 made on 27 March 2019 on 13 September 2020 (Count 4), pursuant to Sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth), she shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:

(a) The bond shall be without surety or security;

(b) To be of good behavior for the duration of the bond, which shall include compliance with all orders made between the parties under the Family Law Act 1975 (Cth); and

(c) The bond shall be for a period of three months, served cumulatively upon the bond entered pursuant to Order 2 hereof.

4. Otherwise, the Application-Contravention filed on 24 November 2020 is dismissed.

5. No order as to costs.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The procedure for the conduct of the hearing is prescribed by the Family Law Rules 2004 (Cth) (r 21.08), which was followed.Evidence The father relied upon:(a)his affidavit filed on 24 November 2020; (b)tendered documents (Exhibit F1); and(c)an audio file of an emergency 000 telephone call made on 23 March 2020 (Exhibit F2). Once the father’s case closed, the mother’s counsel submitted that counts 1 and 4 should be dismissed because no prima facie case in respect of each was established. The submission in each instance was rejected, because the counts could be sustained taking the father’s evidence at its highest, and so the mother then elected to adduce the following evidence in her defence:(a)her affidavit filed on 16 December 2020;(b)the affidavit of Mr AC filed on 16 December 2020;(c)the affidavit of Ms AB filed on 16 December 2020; and(d)tendered documents (Exhibit B1). Each party successfully took objections to the affidavit of the other.Count 1 This count concerns Order 16, which provides:(16)That each party shall advise the other forthwith upon the children, or either of them, suffering from any serious illness or medical emergency and make arrangements for the other to have contact with the child or children in a manner consistent with their condition and the advice of the children’s treating medical practitioner. The allegation, which relates to the mother’s conduct on and following 23 March 2020, was particularised as follows:The mother failed to keep the father informed…of a medical emergency concerning [the youngest child] where police and an ambulance was called…[the father abandoned the remainder of the particulars during the hearing] It proved uncontroversial that, on 23 March 2020, the mother’s friend (“Mr AD”) made an emergency 000 telephone call to summon help to the mother’s home to deal with the youngest child’s uncontrollable rage. The mother was present when Mr AD made the call and she relayed information to Mr AD about her home address and telephone number for provision to the emergency operator. The only rational inference to draw is that the mother was complicit in making the emergency call and Mr AD acted as her agent. Exhibit F2, played in open Court, revealed statements to this effect made by Mr AD to the emergency operator during several minutes of conversation:There were “severe issues”The youngest child was “smashing things up”The youngest child had been violent towards the mother and other childrenThe youngest child was “ripping the house apart”The youngest child was inside the house (from where she could be heard screaming in the background), but Mr AD, the mother and the other children were out on the driveway, from where the emergency call was being madeThe youngest child was considered a danger to the other children and the mother and it was not safe to be near herMr AD was “really scared about the safety of the mother and the other kids”The youngest child was “absolutely out of control”The mother could not cope with the youngest childSomeone needed to get there “ASAP” because “this is going really badly”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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