H and K - [2004] FMCAfam 140

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & K

[2004] FMCAfam 140

FAMILY LAW – Contravention of specific issues orders – where the mother moved the children to a new school without the father’s knowledge or consent – whether an order for joint responsibility for the long term care, welfare and development of a child could be breached – consideration of the principles espoused in Vlug & Poulos (1997) FLC 92-778.

Family Law Act 1975 (Cth), Division 13A, ss.64B(6)65P, 70NG(1)(a), 70NG(1)(b)(a), 112AB, 112AB(1), 112AB(2), 112AD
Family Law Reform Act 1995 (Cth)

Vlug & Poulos (1997) FLC 92-778
B v B; Family Law (Reform) Act (1977) FLC 92-755

Applicant:

P F H

Respondent:

J R J K

File No:

MLM 5055 of 2001

Delivered on:

25 March 2004

Delivered at:

Melbourne

Hearing Date:

23 March 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms D Wiener

Solicitors for the Respondent:

Nil

ORDERS

This application coming on before the Court AND UPON HEARING the father in person and Ms Weiner for the Respondent Mother AND UPON THE COURT HAVING FOUND that the mother has not breached orders as alleged in the Contravention Application filed 1 March 2004:

The said Application be and is hereby dismissed AND THE COURT HAVING FOUND there is no Contravention in relation to counts 2, 3 and 4 of the Application for Contravention filed 6 February 2004.
The said counts are dismissed AND THE COURT HAVING FOUND that the mother has breached the order made on 18 May 2000 providing for joint responsibility for the long term care, welcome and development of the of the children without reasonable excuse as alleged in count 1 of the Contravention filed 6 February 2004 IT IS ORDERED:
Pursuant to s.70NG(1)(a) the parties attend before a provider of a post‑separation parenting course so that the provider can make an initial assessment as to the suitability of the parties to attend a program and if assessed by the provider to be suitable to attend a program or part of a program and the provider nominates a particular program to attend, the parties are to attend that program or part of that program.

AND UPON THE ORAL APPLICATION OF THE PARTIES:

Pursuant to s.70NG(1)(b)(a) Order 2(h) of the orders made in the Family Court of Australia on 24 February 2003 be varied by discharging paragraph 2(h) and inserting in lieu the following:
That the wife do all that can reasonably be required of her to make the children available for telephone contact from the husband on a landline at the home of the children each Monday, Wednesday and Friday between 6 pm and 7 pm. In the event that the wife is not able to make the children available for telephone contact as provided herein:
(a)she telephone the husband on a landline or, if a landline is not provided, on his mobile number the same evening or as soon as practicable…

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 H and K

Details

AGLC: H and K [2004] FMCAfam 140
Case: [2004] FMCAfam 140
Decision Date: 25 March 2004

CaseChat Overview and Summary

The case involved a father who brought a contravention application against the mother, seeking a declaration that she had breached certain orders regarding the care and contact of their children. The matter was heard in the Family Court. The father alleged that the mother had failed to comply with various aspects of the court's orders concerning the children's care and contact arrangements, including allegations of obstructing the father's contact with the children and failing to facilitate appropriate telephone contact.

The central legal issues the court had to address were whether the mother had indeed breached the orders as alleged in the contravention application and, if so, what appropriate remedies or orders should be made. Specifically, the court needed to determine if there were grounds to find the mother in breach of the orders regarding joint responsibility for the children's long-term care and the specific contact arrangements.

The court found that the mother had not breached the orders as alleged in some counts of the contravention application. However, it did find that she had breached an order concerning joint responsibility for the children's care and development without reasonable excuse. As a result, the court ordered the parents to attend a post-separation parenting course and modified the telephone contact arrangement to ensure the children were available for calls on specified days and times. Additionally, the court dismissed the remaining counts of the contravention application. The final orders included specific directions for the parents to attend the parenting course and variations to the contact arrangements, ensuring the children's availability for phone contact with the father.

Orders

Orders of the court

This application coming on before the Court AND UPON HEARING the father in person and Ms Weiner for the Respondent Mother AND UPON THE COURT HAVING FOUND that the mother has not breached orders as alleged in the Contravention Application filed 1 March 2004:

The said Application be and is hereby dismissed AND THE COURT HAVING FOUND there is no Contravention in relation to counts 2, 3 and 4 of the Application for Contravention filed 6 February 2004.

The said counts are dismissed AND THE COURT HAVING FOUND that the mother has breached the order made on 18 May 2000 providing for joint responsibility for the long term care, welcome and development of the of the children without reasonable excuse as alleged in count 1 of the Contravention filed 6 February 2004 IT IS ORDERED:

Pursuant to s.70NG(1)(a) the parties attend before a provider of a post‑separation parenting course so that the provider can make an initial assessment as to the suitability of the parties to attend a program and if assessed by the provider to be suitable to attend a program or part of a program and the provider nominates a particular program to attend, the parties are to attend that program or part of that program.

AND UPON THE ORAL APPLICATION OF THE PARTIES:

Pursuant to s.70NG(1)(b)(a) Order 2(h) of the orders made in the Family Court of Australia on 24 February 2003 be varied by discharging paragraph 2(h) and inserting in lieu the following:

That the wife do all that can reasonably be required of her to make the children available for telephone contact from the husband on a landline at the home of the children each Monday, Wednesday and Friday between 6 pm and 7 pm. In the event that the wife is not able to make the children available for telephone contact as provided herein:

(a) she telephone the husband on a landline or, if a landline is not provided, on his mobile number the same evening or as soon as practicable thereafter and advise him of a number at which he can then telephone the children; and

(b) if the number given to him is a mobile number, the mother ensure that the mobile phone is kept on during the period nominated by her for a phone call.

That the applications be otherwise dismissed.

That there be liberty to apply in relation to the attendance at the post-separation parenting course if necessary.

I direct that a copy of the Reasons for Judgment be transcribed and made available to the parties and the provider of the post-separation parenting course.

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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