GRANT & RUSSELL - [2014] FamCA 589

FAMILY COURT OF AUSTRALIA

GRANT & RUSSELL

[2014] FamCA 589

FAMILY LAW – CHILDREN – Contravention of Order – Alleged contravention by father – Father found guilty on four counts of contravention – Two counts dismissed – Penalty for Contravention – Order for costs

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 21.07

APPLICANT:

Ms Grant

RESPONDENT:

Mr Russell

FILE NUMBER:

HBC

2010

DATE DELIVERED:

1 July 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

1 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Eddington

SOLICITOR FOR THE APPLICANT:

PWB Lawyers

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

On 3 September 2013 the respondent father denigrated the mother in contravention of orders made by this court on 22 May 2013.
On 21 November 2013 the father failed to faciliate a telephone call in contravention of the orders made by this court on 22 May 2013
In December 2013 the father denigrated the mother in contravention of the orders made by this court on 22 May 2013; and
The father contravened the orders made by this court on 22 May 2013 in that he held the children over beyond one week and did not bring them back within three (3) days of the commencement of school term and that each of the contraventions outlined above where without reasonable excuse.

BY WAY OF PENALTY

The parenting order made on 22 May 2013 be varied to provide, notwithstanding any other provision of those orders:-
(a)that the children are to be returned by the mother to the father on
24 December 2014 (instead of 22 December 2014); and
(b)the father return the children to the mother at 4.00pm on 25 December 2014 and that the children remain with the mother until 4.00pm on 29 December 2014.
The father is required to register and complete the Parents Orders Program conducted by Relationships Australia within ten (10) months from the date of this order.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

The children will be with the father from 4.00pm 24 December 2014 and that the children are to be returned to the mother at 4.00pm on 25 December 2014.

IT IS FURTHER ORDERED

The father is ordered to pay the mother’s costs of the contravention application, calculated on a party/party basis.
Leave be given to the father to apply to the court in respect of these orders within twenty one (21) days from the date of this order.

IT IS DIRECTED

A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

Pursuant to Rule 19.50…

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 GRANT & RUSSELL

Details

AGLC: GRANT & RUSSELL [2014] FamCA 589
Case: [2014] FamCA 589
Decision Date: 1 July 2014

CaseChat Overview and Summary

In the matter of *Grant & Russell*, Benjamin J of the Family Court of Australia considered alleged contraventions of parenting orders made on 22 May 2013 by the respondent father. The mother alleged that the father had denigrated her on two occasions in 2013, failed to facilitate a telephone call in November 2013, and held the children beyond the permitted period after the commencement of a school term, all without reasonable excuse.

The court was required to determine whether the father had contravened the existing parenting orders as alleged and, if so, to consider appropriate penalties and further orders. The central legal issue revolved around the father's conduct in relation to the court-ordered arrangements for the children and the consequences of such contraventions.

Benjamin J found that the father had indeed contravened the parenting orders on multiple occasions, including denigrating the mother and failing to return the children within the stipulated timeframe, and that these contraventions were without reasonable excuse. In imposing penalties, the court varied the existing parenting orders to adjust the handover dates for the children over the Christmas period in 2014. Furthermore, the father was ordered to register for and complete the Parents Orders Program within ten months. The court also directed that a Fact Sheet, detailing the obligations, potential consequences of contravention, and available assistance, be incorporated into the orders pursuant to sections 65DA(2) and 62B of the relevant legislation.

Orders

Orders of the court

On 3 September 2013 the respondent father denigrated the mother in contravention of orders made by this court on 22 May 2013.

On 21 November 2013 the father failed to faciliate a telephone call in contravention of the orders made by this court on 22 May 2013

In December 2013 the father denigrated the mother in contravention of the orders made by this court on 22 May 2013; and

The father contravened the orders made by this court on 22 May 2013 in that he held the children over beyond one week and did not bring them back within three (3) days of the commencement of school term and that each of the contraventions outlined above where without reasonable excuse.

BY WAY OF PENALTY

The parenting order made on 22 May 2013 be varied to provide, notwithstanding any other provision of those orders:-

(a) that the children are to be returned by the mother to the father on

24 December 2014 (instead of 22 December 2014); and

(b) the father return the children to the mother at 4.00pm on 25 December 2014 and that the children remain with the mother until 4.00pm on 29 December 2014.

The father is required to register and complete the Parents Orders Program conducted by Relationships Australia within ten (10) months from the date of this order.

Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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