GEIGER & GEIGER - [2013] FamCA 149

FAMILY COURT OF AUSTRALIA

GEIGER & GEIGER

[2013] FamCA 149

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – Where there was equal shared parental responsibility – Where the mother unilaterally made a decision regarding the child’s education – Where the mother refused time to be spent with the father without reasonable excuse – Onus of proof – Standard of proof

FAMILY LAW – SANCTIONS – Where this is the second occasion the mother has been found to have contravened without reasonable excuse – Where the contraventions are to be dealt with as more serious under subdivision F of Division 13A of Part VII of the Family Law Act 1975 – Order under s 65L that the mother be supervised, counselled and assisted by a family consultant in her compliance with orders – Order that the mother enter into a bond to be of good behaviour for a period of two years – Order that the father have compensatory time with the child

Family Law Act 1975 (Cth) ss 11E, 70NAC, 70NAE, 70NAF, 70NFA, 70NFB, 70NFE

Jets & Maker [2010] Fam CAFC 55
Jones v Dunkel (1959) 101 CLR 298

APPLICANT:

Mr Geiger

RESPONDENT:

Ms Geiger

FILE NUMBER:

BRC

14238

2007

DATE DELIVERED:

8 March 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

9 October 2012
and 8 March 2013

REPRESENTATION

FOR THE APPLICANT:

Mr Geiger in Person

FOR THE RESPONDENT:

Ms Geiger in Person

Orders

Pursuant to s 65L of the Family Law Act 1975 a family consultant appointed by Mr HH, Regional Coordinator, Child Dispute Services, Brisbane Registry, Family Court of Australia, shall, as far as practicable, supervise the mother Ms Geiger’s compliance with orders of this Court requiring the children to spend time and communicate with the father, and to give the mother such assistance as is reasonably requested by her in relation to compliance with and the carrying out of those orders.
The respondent mother Ms Geiger enter into a bond to be of good behaviour for two years from today’s date subject to these further conditions:
(a)to comply fully with all orders made for the children J born … December 2001 and A born … March 2004 to spend time with and communicate with the father, save as otherwise agreed with the father, and
(b)to attend appointments with a family consultant as and when directed by Mr HH, Regional Coordinator, Child Dispute Services, Brisbane Registry, Family Court of Australia, for counselling, supervision and assistance in compliance with the Court’s orders.
The Order made by Justice Forrest on 9 October 2012 suspending all existing parenting orders is discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT

The children shall also spend time with the father, as may be agreed between the mother and the father, but in default of agreement, every alternate weekend during school term, commencing 16 March 2013 from 9.00 am on the Saturday until 5.00 pm on the Sunday.
All transitions…

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.

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Details

AGLC: GEIGER & GEIGER [2013] FamCA 149
Case: [2013] FamCA 149
Decision Date

CaseChat Overview and Summary

In *Geiger & Geiger* [2013] FamCA 149, the Family Court of Australia considered a contravention application brought by the father, Mr Geiger, against the mother, Ms Geiger. The dispute concerned allegations that the mother had contravened existing parenting orders regarding the children's time with the father, the children's education, and the mother's compliance with previous court orders. This was the second occasion the mother had been found to have contravened orders without reasonable excuse.

The court was required to determine whether the mother had contravened the parenting orders as alleged by the father, and if so, whether she had a reasonable excuse for such contraventions. Specifically, the court had to consider the mother's unilateral decision regarding the son's schooling, her refusal of time for the father, and her failure to complete a parenting orders program. The court also had to assess the appropriate sanctions and orders to be made, given that this was a second finding of contravention without reasonable excuse.

Justice Forrest applied the principles of the *Family Law Act 1975* (Cth) concerning contravention of orders, including the onus and standard of proof. The court found that the mother had contravened the orders in relation to the son's schooling and the failure to complete the parenting program. While the mother asserted reasonable excuse, the court found that these excuses were not established on the balance of probabilities. The court noted that the mother's contraventions were to be dealt with as more serious under subdivision F of Division 13A of Part VII of the Act.

Consequently, the court made orders for the mother to be supervised and counselled by a family consultant in her compliance with parenting orders. The mother was also ordered to enter into a bond to be of good behaviour for two years, subject to conditions including full compliance with parenting orders and attendance at appointments with a family consultant. The father was granted compensatory time with the children. The court also ordered that any future contravention applications in these proceedings be listed before Justice Forrest.

Orders