GEIGER & GEIGER - [2011] FamCA 941

FAMILY COURT OF AUSTRALIA

GEIGER & GEIGER

[2011] FamCA 941

FAMILY LAW – CONTEMPT – Contravention of Court order – Whether the mother contravened five Court orders which the father alleges – Court satisfied that the mother contravened three Court orders without reasonable excuse, and two with reasonable excuse

FAMILY LAW – SANCTIONS – Whether the contraventions are to be dealt with pursuant to sub-division E or sub-division F of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Whether the contraventions demonstrate a serious disregard by the mother of her obligations under the primary order – Where this is the first occasion that the mother has been found to have contravened the final orders – Court satisfied that the mother’s conduct does not demonstrate a persistent disregard of her obligations – Finding that the contraventions are of the less serious type – Order that the mother complete a post separation parenting orders program – Order that the father have compensatory time with the child

Family Law Act 1975 (Cth) s 70NEB(1)(A)ii), s 65LB, s 70NEB(1)(b), s 70NAC, s 70NAD, s 70NAF, s 70NAE, s 61B, s 65DAC, s 65DAE, s 4, s 70NBA

Elspeth & Peter; Mark and Peter and John and Peter [2007] FamCA 655
Jets & Maker [2010] FamCAFC 55

APPLICANT:

Mr Geiger

RESPONDENT:

Ms Geiger

FILE NUMBER:

BRC

14238

2007

DATE DELIVERED:

1 November 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

12 and 13 September 2011

and 1 November 2011

REPRESENTATION

THE APPLICANT:

Mr Geiger in Person

THE RESPONDENT:

Ms Geiger in Person

Orders

Pursuant to the provisions of s 70NEB(1)(a)(ii) the mother shall attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.
The mother shall be personally responsible to access details of such programs through a Family Relationship Centre in her residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program.
The mother shall complete such a post-separation parenting orders program within six (6) months of the date of these orders and provide evidence in writing of the completion of such a program to the father.
Pursuant to the provisions of s 70NEB(1)(b), the child A born … March 2004 (“the child A”) shall spend time with the father commencing this weekend, Friday 4 November 2011, from 6.00 pm Friday night until 6.00 pm Sunday night each second weekend until she goes to spend holiday time with the father in the 2011-2012 Christmas school holidays.
Paragraphs 13, 18, 19 and 20 of the Order of her Honour Justice O’Reilly of 10 September 2010 are discharged.
The mother must not take the children to any therapy or counselling other than, in respect of the child J born … December 2001 (“the child J”), at the EE Mental Health Service run through the FF Health District situated at Suburb GG, without the prior written approval of the father.

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 [2011] FamCA 941
Case: [2011] FamCA 941
Decision Date

CaseChat Overview and Summary

In *Geiger & Geiger* [2011] FamCA 941, the Family Court of Australia considered a contravention application brought by Mr Geiger (the father) against Ms Geiger (the mother) concerning alleged breaches of final parenting orders made in September 2010. The dispute centred on five alleged contraventions by the mother relating to schooling, counselling, and child exchange arrangements for the parties' two children.

The court was required to determine whether the mother had contravened specific provisions of the final parenting orders, and if so, whether she had a reasonable excuse for any such contraventions. Furthermore, the court had to consider the appropriate sanctions or orders to be made pursuant to Division 13A of Part VII of the *Family Law Act 1975* (Cth), assessing whether the contraventions demonstrated a serious disregard of her obligations.

Forrest J found that the mother had contravened three of the five alleged orders without reasonable excuse, specifically concerning schooling decisions and the provision of child A for the March/April holidays. However, the court was satisfied that the mother had a reasonable excuse for contravening orders relating to child J’s counselling at EE Mental Health Service and for arranging for child J to speak to a Lifeline Counsellor, noting the context of the children's well-being. Applying the principles of contravention and reasonable excuse under the Act, and considering that this was the first occasion the mother had been found to contravene the final orders, the court determined that her conduct did not demonstrate a persistent disregard of her obligations and that the contraventions were of a less serious type.

Consequently, the court ordered that the mother attend and complete a post-separation parenting orders program within six months and provide evidence of completion to the father. Additionally, the father was granted compensatory time with child A, to commence on 4 November 2011, and to occur on alternate weekends until the 2011-2012 Christmas school holidays. Certain paragraphs of the original final orders were discharged, and specific orders were made regarding the children's therapy and communication with health services.

Orders