Isaacks and Baliston

[2018] FCCA 3845

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISAACKS & BALISTON [2018] FCCA 3845

Catchwords:
FAMILY LAW – Contravention application – contravention application dismissed – section 70NBA of the Family Law Act 1975 – previous interim orders reinstated.

Legislation:

Family Law Act 1975, s.70NBA

Applicant: MR ISAACKS

Respondent: MS BALISTON

File Number: PAC 188 of 2017

Judgment of: Judge Newbrun

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Parramatta

Delivered on: 28 November 2018

REPRESENTATION

Solicitors for the Applicant: Ms Diliberto of Bell Lawyers

Solicitors for the Respondent: Ms Reid of Reid Legal Pty Ltd

There was no appearance by the Independent Children’s Lawyer

ORDERS

1. The mother’s Contravention Application filed 7 August 2018 is dismissed.

2. Order 1 of the Court’s Orders of 5 September 2018 is discharged.

3. The Court reinstates the Court’s interim parenting Orders of 28 February 2018 such that, inter alia, the children shall spend time with the mother each alternate weekend from 5:00 pm Friday to 5:30 pm Sunday.

4. The children’s time with the mother, pursuant to the above reinstated Orders of 28 February 2018, shall commence this Friday 30 November 2018 at 5:00 pm.

IT IS NOTED that publication of this judgment under the pseudonym Isaacks & Baliston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 188 of 2017

MR ISAACKS

Applicant

And

MS BALISTON

Respondent

REASONS FOR JUDGMENT

1. The Court refers to the hearing of this Contravention Application this afternoon.  The contraventions alleged on 20 July 2018 and 3 August 2018 are not established.  The Court finds that the father had reasonable excuse for ceasing contact between the children and the mother by reason of the mother, in breach of the previous Order of the Court, allowing the child [X] to come into contact with one of the children.  So the Court will make this Order:

   (1)The mother’s Contravention Application filed 7 August 2018 is dismissed.

2. Further to those Reasons, the mother contended that there was a verbal agreement with the father on 15 March 2018 that, despite the existence of the Court Order that [X] was not to be allowed to come into the presence of the children, the father consented, the mother alleges, on 15 March 2018, to the child [X] briefly coming into contact with the child [Y] in a car trip.  The father, in the witness box today, denied that consent.  He swore in the witness box that at no time did he consent to the child [X] coming into contact with the child [Y].  He disputed the relevant parts of paragraph 4 of the mother’s Affidavit filed 7 August 2018.  The Court is unable to resolve this factual dispute between the parties.

3. The Court is not satisfied that the mother has established that the father gave his consent to the child [X] being in the car with [Y] on 15 March 2018.  So again, the Court is satisfied that the father had reasonable excuse thereafter, after 15 March 2018, in denying contact between the children and the mother because the mother, in breach of a previous Order that [X] not come into contact with the children, permitted [X] to come into contact with [X], one of the children of the relationship, on 15 March 2018.

4. But that is not the end of the matter in terms of these parenting proceedings because Ms Reid, solicitor on behalf of the mother, makes an application under section 70NBA of the Family Law Act 1975 that, despite the Court finding that the contravention has not been established, the Court has jurisdiction to make an Order varying a primary Order in the circumstances set out in section 70NBA, and that section again provides that the Court may make an order varying a primary parenting Order if 70NBA(1)(a) and 70NBA(1)(b) are established.

5. The Court is satisfied that proceedings in relation to a primary parenting Order have been brought before this Court, which has jurisdiction under the Family Law Act 1975; and secondly, it has been alleged in these proceedings that a person, namely the father, committed a contravention of the primary Court Order, namely, the primary Order that the children spend time with the mother; and the Court has today not found that the father committed the contravention of the primary Order, namely, the Order that the children spend time with the mother.

6. That permits the Court to proceed to subsection (2) of section 70NBA of the Act, and the Court notes that subsection (2) is not relevant because Subdivision (f) does not apply. In the view of the Court, it will be in the best interests of the children that the Court’s Orders of 28 February 2018 be reinstated and that the Court discharge its Orders of 5 September 2018, because these children have a meaningful relationship with the mother.

7. In the view of the Court, the mother has sufficiently paid the price, as it were, of allowing [X] to come into contact with [Y], one of the children of the relationship, in breach of that previous Court Order relating to [X].  She has been deprived of spending time with the children at the instance of the father from 18 March 2018 to 7 September 2018.  That is a period of almost six months that the father did not permit the children to spend time with the mother.

8. The mother gave evidence today that she is acutely aware of the reasons why there is a parenting Order preventing [X] from coming into contact with the children.  There is a significant suggestion on the material presently before the Court, including the mother’s evidence given today, that in the future she will not breach that Order again, which provides that [X] is not permitted at the instance of the mother to come into contact with the children.

9. The Orders of 5 September 2018, which were consent parenting Orders, only permit the mother, in contrast to the Orders of 28 February 2018, to spend time with the children every second Saturday during the daytime for six hours, whereas the Court’s parenting consent or interim parenting consent Orders of 28 February 2018 permit the children to spend time with the mother each alternate weekend from 5 pm Friday to 5.30 pm Sunday – a considerably greater period.

10. There is every prospect that the children spending such time with the mother will maintain and indeed enhance and restore the children’s meaningful relationship with the mother, noting that she has had a significant period this year without spending time with the children.  It will be in the best interests of the children that the Court discharge the Court’s Orders of 5 September 2018 and reinstate the Court’s Orders of 28 February 2018. 

11. Accordingly, the Court makes the following Orders:

    (2)Order 1 of the Court’s Orders of 5 September 2018 is discharged.

    (3)The Court reinstates the Court’s interim parenting Orders of 28 February 2018 such that, inter alia, the children shall spend time with the mother each alternate weekend from 5:00 pm Friday to 5:30 pm Sunday.

    (4)The children’s time with the mother, pursuant to the above reinstated Orders of 28 February 2018, shall commence this Friday 30 November 2018 at 5:00 pm.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 9 January 2019