Jarrold and Ericsson (No.6) - [2018] FCCA 3462

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARROLD & ERICSSON (No.6)

[2018] FCCA 3462

Catchwords:
FAMILY LAW – Contravention – whether the father has contravened orders made on 18 December 2014 and 24 August 2016 – where these are the sixth proceedings issued since final orders were made on 18 December 2014 after a four day trial – if contraventions proven, what penalty would be appropriate.

Legislation:

Family Law Act 1975, ss.70NEB(1)(a)(i), 70NFB(2), 70NBA, 70NAC, 70NAD, 65N, 70NAE, 70NEB, 70NEC, 70NECA, 70NFA, 60CA, 60CC

Federal Circuit Court Rules 2001, r.25B.02

Rice v Asplund (1979) FLC 90-725
Hugh & Sawer [2010] FamCA 290
Elspeth & Peter, Mark & Peter, and John & Peter [2007] FamCA 655

Applicant:

MS JARROLD

Respondent:

MR ERICSSON

File Number:

DGC 1317 of 2013

Judgment of:

Judge Small

Hearing date:

12 November 2018

Date of Last Submission:

12 November 2018

Delivered at:

Dandenong

Delivered on:

28 November 2018

REPRESENTATION

Counsel for the Applicant:

Mr G. Combes

Solicitors for the Applicant:

Rockman & Rockman

Counsel for the Respondent:

Mr Ericsson in person

Solicitors for the Respondent:

None

ORDERS

UPON THE COURT FINDING THAT:

The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 on 21 April 2017 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 7 May 2017 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 25 May 2017 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 4 June 2017 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 8 June 2017 without reasonable excuse.

THE COURT ORDERS THAT:

Pursuant to s.70NFB(2) of the Family Law Act 1975 (Cth), the respondent father shall enter into a bond of three months’ duration beginning at the expiry of the bond entered into on 12 September 2017, that is, commencing on 12 September 2019, with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.
The mother’s Applications for Contravention filed 24 April 2017, 8 August 2017 and 10 November 2017, are otherwise dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Small delivered this day will for all publication and reporting purposes be referred to as Jarrold & Ericsson (No.6).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1317 of 2013

MS JARROLD

Applicant

And

MR ERICSSON

Respondent

REASONS FOR JUDGMENT

Introduction

These are contravention proceedings issued by the mother, Ms Jarrold (formerly Beesley) (“Ms Jarrold” or “the mother”), against the father, Mr Ericsson (“Mr Ericsson” or “the father”) in Contravention Applications filed on 24 April 2017, on…

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 Jarrold and Ericsson (No.6)

Details

AGLC: Jarrold and Ericsson (No.6) [2018] FCCA 3462
Case: [2018] FCCA 3462
Decision Date: 28 November 2018

CaseChat Overview and Summary

This matter came before Judge Small concerning allegations that the respondent father had contravened parenting orders made on 18 December 2014 and 24 August 2016. The applicant mother alleged multiple instances of contravention by the respondent father on various dates in April, May, and June 2017.

The primary legal issue before the court was whether the respondent father had contravened the specified paragraphs of the existing parenting orders on the dates alleged by the mother, and if so, whether he had a reasonable excuse for such contraventions. The court was required to determine the factual circumstances of each alleged contravention and apply the relevant provisions of the *Family Law Act 1975* (Cth) concerning contravention of court orders.

Judge Small found that the respondent father had contravened paragraph 4(a) of the Orders of 18 December 2014 on 21 April 2017, and further contravened both paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 7 May, 25 May, 4 June, and 8 June 2017, all without reasonable excuse. Consequently, pursuant to s.70NFB(2) of the *Family Law Act 1975* (Cth), the respondent father was ordered to enter into a bond of three months’ duration, commencing on 12 September 2019, with a surety of $1000.00, to be of good behaviour and comply with all court orders. The mother's applications for contravention filed on 24 April 2017, 8 August 2017, and 10 November 2017 were otherwise dismissed.

Orders

Orders of the court

UPON THE COURT FINDING THAT:

The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 on 21 April 2017 without reasonable excuse.

The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 7 May 2017 without reasonable excuse.

The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 25 May 2017 without reasonable excuse.

The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 4 June 2017 without reasonable excuse.

The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 8 June 2017 without reasonable excuse.

THE COURT ORDERS THAT:

Pursuant to s.70NFB(2) of the Family Law Act 1975 (Cth), the respondent father shall enter into a bond of three months’ duration beginning at the expiry of the bond entered into on 12 September 2017, that is, commencing on 12 September 2019, with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.

The mother’s Applications for Contravention filed 24 April 2017, 8 August 2017 and 10 November 2017, are otherwise dismissed.

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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