Hayes & Stapleton - [2015] FCCA 1948

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYES & STAPLETON

[2015] FCCA 1948

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – reasonable excuse – whether respondent has established a reasonable excuse.

FAMILY LAW – Children – contravention of parenting orders – consequential orders – less serious contravention – whether any previous contravention of primary order – whether respondent behaved in a way that showed a serious disregard for her obligations under the primary order – where Subdivision E of Division 13A of Family Law Act 1975 (Cth) applied – imposition of bond.

PRACTICE AND PROCEDURE – Delay – discretion to refuse relief – unwarrantable and poorly explained delay – where subject matter of contravention trivial – discretionary refusal to impose a sanction.

COSTS – Whether an order for costs should be made against either party – where applicant unrepresented – where respondent represented for part of the proceedings – where neither party in receipt of legal aid – conduct of the proceedings by the parties considered – where proceedings necessitated by the failure of a party to comply with previous orders – where neither party wholly unsuccessful.

PRACTICE AND PROCEDURE – Multiple contraventions alleged – duplicity – abuse of court process – where application brought in respect of contraventions alleged to have taken place more than 12 months prior to the institution of proceedings – amendment to the Family Law Act 1975 recommended providing for a limitation period.

Legislation:

Family Law Act 1975 (Cth), ss.44, 64B, 70NAA, 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC, 70NFB, 70NFG, 117

Cases cited:
Hayes & Stapleton [2014] FCCA 1692
R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
S58 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

Applicant:

MR HAYES

Respondent:

MS STAPLETON

File Number:

SYC 2750 of 2007

Judgment of:

Judge Scarlett

Hearing dates:

2-3 December 2014

Date of Last Submission:

3 December 2014

Delivered at:

Sydney

Delivered on:

17 August 2015

REPRESENTATION

Applicant:

In person

Respondent:

In person (formerly Ms Swan)

Solicitors for the Respondent:

(formerly KWS Legal)

ORDERS

The Respondent mother did on 24 November 2012 without reasonable excuse contravene Order 5 made on 25 May 2009 by calling the children X born (omitted) 2000 and Y born (omitted) 2001 away from the Applicant and spending time with the children at a time that was not provided by the said Order as a time when the said children were to spend time with the Respondent.
The Respondent mother did on 26 November 2012 without reasonable excuse contravene Order 5 made on 25 May 2009 by calling the said children X and Y away from the Applicant and spending time with the children at a time that was not provided by the said Order…

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 Hayes & Stapleton

Details

AGLC: Hayes & Stapleton [2015] FCCA 1948
Case: [2015] FCCA 1948
Decision Date: 17 August 2015

CaseChat Overview and Summary

This case concerned allegations by the applicant father that the respondent mother had contravened parenting orders made on 25 May 2009. The dispute involved multiple alleged contraventions of Order 5, which stipulated when the parties' children, X and Y, were to spend time with each parent. The proceedings were brought before Judge Scarlett.

The court was required to determine whether the respondent mother had contravened specific provisions of the parenting orders, and if so, whether she had established a reasonable excuse for such contraventions. Additionally, the court had to consider the appropriate consequential orders, including whether any contraventions were of a less serious nature or demonstrated a serious disregard for her obligations. The court also considered issues of delay in bringing proceedings, the potential for duplicity in allegations, and whether to make any order for costs.

The court found that the respondent mother had contravened Order 5 on several occasions, including on 24 and 26 November 2012, 31 August 2013, 23 January 2014, and 2 March 2014, without establishing a reasonable excuse for these specific instances. However, the court dismissed several other alleged contraventions, finding that the respondent had established a reasonable excuse for a contravention on 1 August 2013. In relation to the contraventions found, the court noted that the proceedings were necessitated by the failure to comply with previous orders and that neither party was wholly unsuccessful.

Ultimately, the court made no order in respect of the contraventions found on 24 and 26 November 2012. For the contraventions found on 31 August 2013, 23 January 2014, and 2 March 2014, the respondent was required to enter into a bond for 18 months, conditional upon being of good behaviour and complying with the original parenting orders. No order for costs was made.

Orders

Orders of the court

The Respondent mother did on 24 November 2012 without reasonable excuse contravene Order 5 made on 25 May 2009 by calling the children X born (omitted) 2000 and Y born (omitted) 2001 away from the Applicant and spending time with the children at a time that was not provided by the said Order as a time when the said children were to spend time with the Respondent.

The Respondent mother did on 26 November 2012 without reasonable excuse contravene Order 5 made on 25 May 2009 by calling the said children X and Y away from the Applicant and spending time with the children at a time that was not provided by the said Order as a time when the said children were to spend time with the Respondent.

Count 9 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 2 April 2013 of Order 5 made on 25 May 2009 is dismissed.

Count 10 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 7 June 2013 of Order 5 made on 25 May 2009 is dismissed.

Count 12 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 1 August 2013 of Order 5 made on 25 May 2009 is dismissed.

Count 15 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 9 August 2013 of Order 5 made on 25 May 2009 is dismissed.

Count 17 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 19 August 2013 of Order 5 made on 25 May 2009 is dismissed.

Count 18 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 21 August 2013 of Order 5 made on 25 May 2009 is dismissed.

The Respondent mother did on 31 August 2013 without reasonable excuse contravene Order 5 made on 25 May 2009 by coaxing the child Y to sit with her instead of the Applicant and thereby spending time with the child at a time that was not provided by the said Order.

10.

Count 22 of the first Application – Contravention filed on 13 February 2013 alleging a contravention by the Respondent on 2 September 2013 of Order 5 made on 25 May 2009 is dismissed.

11.

The Respondent did on 23 January 2014 without reasonable excuse contravene Order 5 made on 25 May 2009 by failing to return the said children X and Y to the care of the father and thereby spending time with the children for more than half of the Christmas School holidays 2013-2014.

12.

Count 1 of the third Application - Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 1 August 2013 of Order 2 made on 25 May 2009 is dismissed.

13.

The Respondent has established a reasonable excuse for contravening on 1 August 2013 Order 5 made on 25 May 2009.

14.

The Respondent did on 2 March 2014 without reasonable excuse contravene Order 5 made on 25 May 2009 in that she failed to return the children X and Y to the care of the father or his nominee by 5:00pm on that day.

15.

The Court makes no order in respect of the contraventions found in Orders (1) and (2) above.

16.

In respect of the contraventions found in Orders (9), (11) and (14) above, the Respondent is required to enter into a bond in accordance with section 70NEC of the Family Law Act 1975 for a period of eighteen (18) months, upon the following conditions:

(a) to be of good behaviour; and

(b) to comply with the requirements of the Orders made on 25 May 2009.

17.

The Court makes no order for costs.

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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