H & V - [2005] FMCAfam 519

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & V

[2005] FMCAfam 519

FAMILY LAW – Contravention of Child Order – children aged seven and five removed by father from mother for 47 days in contravention of residence and contact orders made by the Family Court and taken interstate – children returned after execution of recovery order – father acknowledges breach and has no previous findings of contravention against him – whether stage two or three of Parenting Compliance Scheme applies – does father’s conduct amount to a serious disregard of parenting order – whether sentence of imprisonment should be imposed – issues of general and personal deterrence – whether sentence should be suspended in whole or part – father sentenced to four months imprisonment to be released on a bond following one month of sentence being served.

Family Law Act 1975, ss.70NF, 70NO, 70NJ

The Queen v De Simoni (1981) 174 CLR 383

Cummings and Cummings (1976) FLC 90-100
U and U (1979) FLC 90-648
G and G (1981) FLC 91-042
Tate & Tate (2003) Fam CA 112 (unreported)
Ibbotsen v Wincen (1994) FLC 92-469
K & J (2004) FLC 93-177
H & B (2002) FMCA fam 326
W & B (2003) EA 23 of 2003 (unreported)

Applicant:

J S H

Respondent:

S D V

File Number:

ADM4007 of 2001

Judgment of:

Brown FM

Hearing date:

28 September 2005

Delivered at:

Darwin

Delivered on:

3 October 2005

REPRESENTATION

Counsel for the Applicant:

Ms H

Solicitors for the Applicant:

N T L A C

Counsel for the Respondent:

Ms T

Solicitors for the Respondent:

J T B & S

ORDERS

The court finds that, on his own acknowledgement, the respondent

S D V has contravened orders of the Family Court of Australia made at Adelaide on 24 September 2003, without reasonable excuse, in that he failed to return the children of the relationship T N H-V born on

20 August 1996 and A A V born on 26 August 1998 to the applicant J H at the W S Police Station at 5.00 pm on 18 October 2003 as required by the aforesaid order and thereafter he unlawfully withheld the said children from the applicant until 5 December 2003.
The court further finds that the respondent has behaved in a way that showed a serious disregard for his obligations under the orders made on 24 September 2003 and is satisfied that it is appropriate for the respondent to be sentenced under the provisions of section 70 NJ of the Family Law Act 1975.
The court further finds that it is not appropriate for the respondent to be sentenced other than in accordance with the provisions of section

70 NO(1) of the Family Law Act 1975 that is by way of a term of imprisonment and no other of the sanctions as set out in section

70 NJ(3) are appropriate to the circumstances herein.
Pursuant to the provisions of section 70 NJ(3)(e) of the Family Law Act 1975 the respondent is…

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 & V

Details

AGLC: H & V [2005] FMCAfam 519
Case: [2005] FMCAfam 519
Decision Date: 3 October 2005

CaseChat Overview and Summary

In the Family Court of Australia, the case of H & V involved a dispute between the parties, J H and S D V, over the non-compliance with court orders concerning the custody and return of their children. The respondent, S D V, failed to return the children to the applicant as required by a prior Family Court order. Instead, he withheld the children from the applicant until 5 December 2003. The court was tasked with determining whether the respondent had contravened the court orders without reasonable excuse and whether he had behaved in a manner that showed a serious disregard for his obligations under the orders. Additionally, the court had to decide on an appropriate sentence under the Family Law Act 1975 if it found the respondent's actions to be in breach of the court's orders.

The court found that the respondent had indeed contravened the Family Court orders by not returning the children at the specified time and place, and by subsequently withholding them from the applicant. The court concluded that the respondent's actions showed a serious disregard for his obligations under the orders. The court determined that it was appropriate to sentence the respondent under section 70 NJ of the Family Law Act 1975. The court found that imprisonment was the most suitable sanction, as none of the other sanctions provided in section 70 NJ(3) were appropriate in the circumstances. The court sentenced the respondent to a term of imprisonment of four months, to commence from 28 September 2005, and directed that the respondent be released on a bond in his own recognisance, subject to conditions including good behaviour and compliance with all relevant court orders.

Orders

Orders of the court

The court finds that, on his own acknowledgement, the respondent

S D V has contravened orders of the Family Court of Australia made at Adelaide on 24 September 2003, without reasonable excuse, in that he failed to return the children of the relationship T N H-V born on

20 August 1996 and A A V born on 26 August 1998 to the applicant J H at the W S Police Station at 5.00 pm on 18 October 2003 as required by the aforesaid order and thereafter he unlawfully withheld the said children from the applicant until 5 December 2003.

The court further finds that the respondent has behaved in a way that showed a serious disregard for his obligations under the orders made on 24 September 2003 and is satisfied that it is appropriate for the respondent to be sentenced under the provisions of section 70 NJ of the Family Law Act 1975.

The court further finds that it is not appropriate for the respondent to be sentenced other than in accordance with the provisions of section

70 NO(1) of the Family Law Act 1975 that is by way of a term of imprisonment and no other of the sanctions as set out in section

70 NJ(3) are appropriate to the circumstances herein.

Pursuant to the provisions of section 70 NJ(3)(e) of the Family Law Act 1975 the respondent is sentenced to a term of imprisonment of four months to be calculated to commence from 28 September 2005 in respect of the contravention of child order as set out in order one hereof.

Pursuant to the provisions of section 70 NO(5) of the Family Law Act 1975 it is directed that the respondent be released from imprisonment on 26 October 2005 on a bond in his own recognisance in the sum of $500.00 on condition that he be of good behaviour for a period of two years and obey all orders of the Family Court of Australia and the Federal Magistrates Court of Australia to which he is a party in respect to the children of himself and the applicant herein J H and any other orders of these Courts to which he is a party.

In the event of the respondent breaching the terms of the recognisance ordered this day the respondent be imprisoned and serve the balance of the sentence imposed herein namely the period of three months imprisonment.

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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