HUNTER & MORRISON (CONTRAVENTION) - [2014] FamCA 198

FAMILY COURT OF AUSTRALIA

HUNTER & MORRISON (CONTRAVENTION)

[2014] FamCA 198

FAMILY LAW – CONTRAVENTION – Different standard of proof to be satisfied depending on the type of breach – Where standard of proof for less serious contraventions is on the balance of probabilities – Where standard of proof for more serious contraventions is beyond reasonable doubt – Where penalties available for contravention – Where imposing a sanction of bond requires relevant matters be satisfied on the balance of probabilities – Where imposing community service only available in the event of more serious contravention and requires relevant matters be satisfied beyond reasonable doubt.

FAMILY LAW – CONTRAVENTION – Contravention application made by the mother against the father alleging 4 counts of contravention with respect to consent parenting orders – Where orders require father to achieve delivery and collection of children without imposing an obligation for him to be physically present – Where father withheld children from contact with the mother on 3 occasions – Where father admits contraventions of the Orders – Where father argued reasonable excuse on the basis of necessity to protect the children’s safety – Where question is whether reasonable grounds for that belief – Where mother allegedly a physical and emotional risk to the children by virtue of her alleged suicidal ideation – Where found reasonable foundation for beliefs – Where no contraventions made out – Where contravention application dismissed.

Family Law Act 1975 (Cth) ss 70NAE, 70 NAC, 70NFA, 70NAF, 70NEB, 70NFB, 70NFF, 70NECA

Dobbs v Brayson [2007] FamCA 1261
Gaunt & Gaunt (1978) FLC 90-468

APPLICANT:

Ms Morrison

RESPONDENT:

Mr Hunter

INDEPENDENT CHILDREN’S LAWYER:

Ms Berck

FILE NUMBER:

TVC

2010

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

18 March 2013

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr McGregor

SOLICITORS FOR THE RESPONDENT:

McAlisters Cartmill

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER

Berck Solicitors

Orders

The Mother’s Application – Contravention filed 31 March 2011 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Morrison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: TVC13/2010

Ms Morrison

Applicant

And

Mr Hunter

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 12 August 2009, Magistrate J Hodgins made final orders with the consent of the parties in relation to both children’s and property matters. By her Contravention Application filed 31 March 2011, the mother asserts that the father has committed four contraventions of the parenting orders. In her submissions before me, she identified that the penalty which she seeks to have imposed for those contraventions was “at least” a bond or Community Service Orders. That has implications as I will discuss later in these reasons. The father either denies the contraventions, or alternatively asserts that he had a reasonable excuse for contravening the orders.

THE LAW

The bulk of legislative…

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 HUNTER & MORRISON (CONTRAVENTION)

Details

AGLC: HUNTER & MORRISON (CONTRAVENTION) [2014] FamCA 198
Case: [2014] FamCA 198
Decision Date

CaseChat Overview and Summary

The applicant, Ms Morrison, sought orders against the respondent, Mr Hunter, alleging four contraventions of consent parenting orders concerning the children. The mother sought penalties including a bond or community service orders. The father denied the contraventions or alternatively asserted a reasonable excuse for any contravention, based on the necessity to protect the children from alleged physical and emotional risk posed by the mother, including suicidal ideation. The proceedings were heard in the Family Court of Australia by Tree J.

The court was required to determine whether the father had contravened the parenting orders, and if so, whether he had a reasonable excuse for such contraventions. A key issue was the application of the different standards of proof prescribed by the *Family Law Act 1975* (Cth) for less serious and more serious contraventions, and for the imposition of specific sanctions such as bonds and community service orders. The court also had to consider the specific legislative provisions defining contravention and reasonable excuse, particularly in the context of protecting a child's health or safety.

The court analysed the relevant sections of the *Family Law Act 1975* (Cth), including ss 70NAE, 70NAC, 70NE, and 70NFA, which distinguish between less serious and more serious contraventions and outline the available penalties and their associated standards of proof. The court noted that while a bond could be imposed upon proof on the balance of probabilities, a community service order, available only for more serious contraventions, required proof beyond reasonable doubt. The father argued reasonable excuse under s 70NE(5), asserting a belief on reasonable grounds that withholding the children was necessary to protect their health or safety due to the mother's alleged suicidal ideation. The court found that there was a reasonable foundation for the father's beliefs regarding the risk to the children.

Ultimately, the court found that the father had not contravened the parenting orders, as his actions were justified by a reasonable excuse based on his belief, held on reasonable grounds, that it was necessary to protect the children's health and safety. Consequently, the mother's contravention application was dismissed.

Orders