HOCKING and BROMLEY-NIVEN - [2015] FCWA 87

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: HOCKING and BROMLEY-NIVEN [2015] FCWA 87

CORAM: WALTERS J

HEARD: 25 - 27 AUGUST 2015

DELIVERED : 9 OCTOBER 2015

FILE NO/S: PTW 5938 of 2000

BETWEEN: MR HOCKING
Applicant
AND
MS BROMLEY-NIVEN
Respondent

Catchwords:

FAMILY LAW – Contravention – mother fails to make child available for contact – breach of orders admitted, but reasonable excuse alleged – findings of no reasonable excuse – case turns on its own facts – long history of litigation – current orders not in best interests of the child – orders varied

Legislation:

Family Court Act 1997 (WA)
Sentencing Act 1995 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Self Represented Litigant

Solicitors:

Applicant: Self Represented Litigant
Respondent: Self Represented Litigant

Case(s) referred to in judgment(s):

Dobbs & Brayson (2007) FLC 93-346
Gravis & Major [2010] FamCAFC 239
In the Marriage of Rossi (1980) 6 Fam LR 148
Langer & Griffin [2013] FamCAFC 170
McClintock v Levier (2009) 41 Fam LR 245
Ongal & Materns (2015) FLC 93-645
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Saxena & Saxena (2006) FLC 93-268

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

Introduction

1 [Child A] was born on [in] 2000 and is now 15 years of age. Her parents have been involved in litigation regarding parenting arrangements for her for almost the whole of the time since she was born. Indeed, the parties have filed some 47 applications of one sort or another (including initiating applications and responses, applications in a case and responses, contravention applications and Child Support applications or appeals). The first was filed on 27 September 2000; the most recent was filed on 24 June 2015.
2In those 15 years, the Court has made dozens of orders, and both the parties have repartnered – but their feud continued unabated. Each party thinks that he or she is reasonable and the other party is not.
3More than 20 years before Child A was born, Fogarty J spoke of long-term family law litigation such as this in In the Marriage of Rossi (1980) 6 Fam LR 148 (Rossi). Although the relevant passage is comparatively long, it bears repeating. His Honour said at pp 151-2:
This is the sort of case which is not untypical in this court (the Family Court of Australia) and which imposes enormous and in my view unacceptable pressures upon the system being both court time, cost to the community (as both parties are on and always have been on Legal Aid) and which ensure that other cases which are at least capable of some resolution do not get on for hearing. Since this court commenced four years ago we have collected in this Registry, and I am sure that other Registries have an equal experience, a number of cases whose names are all too well known…

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 HOCKING and BROMLEY-NIVEN

Details

AGLC: HOCKING and BROMLEY-NIVEN [2015] FCWA 87
Case: [2015] FCWA 87
Decision Date: 9 OCTOBER 2015

CaseChat Overview and Summary

The proceedings involved a mother, who failed to make her child available for contact with the father, despite court orders. The father sought a declaration that the mother had contravened the orders, and that she had no reasonable excuse for her actions. The matter was heard in the Family Court of Australia. The father argued that the mother had breached the orders, which required her to make the child available for contact with the father. The mother admitted to the contravention but claimed she had a reasonable excuse for her actions. The court was required to determine whether the mother's actions constituted a reasonable excuse, and if not, whether the current orders were in the best interests of the child.

The court found that the mother's actions did not constitute a reasonable excuse, and that the current orders were not in the best interests of the child. The court noted that the mother had a history of litigation and had previously been found to have breached court orders. The court considered the welfare and best interests of the child to be paramount and found that the current orders were not serving that interest. The court varied the orders to provide for more contact between the father and the child, taking into account the child's age and the need for stability and consistency in their life. The court emphasised that each case turns on its own facts and that the orders made were specific to the circumstances of this case.

Orders