Jenkins and Lloyd (Contravention) - [2010] FamCA 408

FAMILY COURT OF AUSTRALIA

JENKINS & LLOYD (CONTRAVENTION)

[2010] FamCA 408

FAMILY LAW – CONTRAVENTION

APPLICANT:

Mr Jenkins

RESPONDENT:

Ms Lloyd

INDEPENDENT CHILDREN’S LAWYER:

Ms Buchanan

FILE NUMBER:

MLC

2364

2007

DATE DELIVERED:

21 April 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

21 April 2010

REPRESENTATION

FOR THE APPLICANT:

In person

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Buchanan

Orders

That the alleged contravention by the mother of paragraph 4(d) of Orders made on 4 September 2009 is proved in that the mother was two hours late in delivering the child B born … December 2006 to S Contact Centre on 20 December 2009 for the purposes of spending time with the father and that the mother had no reasonable excuse.
That in respect of the aformementioned contravention and pursuant to s70NEB (1) (a) of the Family Law Act 1975, the mother MS LLOYD shall within 7 working days from the date of this order make contact with Life Works Relationship Counselling and Education Services, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program. If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the mother, the mother shall attend that program or that part of the program.
That pursuant to section 70NEB (1) (a) (ii) of the Family Law Act 1975, the father MR JENKINS shall within 7 working days from the date of this order make contact with Life Works Relationship Counselling and Education Services, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program. If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the father, the father shall attend that program or that part of the program.
That the alleged contravention by the mother of paragraph 4(d) of the Orders made on 4 September 2009 is proved in that she failed to deliver the child B born … December 2006 to S Contact Centre on 10 January 2010 for the purpose of spending time with the father and did so without reasonable excuse. In relation to this contravention I impose no further consequential orders or penalties.
That I otherwise reserve the issue of payment by the mother of the father’s costs of this day pursuant to s70NEB1 (f) and(g).
That otherwise the contravention application filed 30 March 2010 is hereby dismissed.
That the reasons for judgment this day be transcribed and that copies be made available to the parties and to the independent children’s lawyer in the substantive proceedings and to the Director of Child Dispute Services for the attention of Mr V, family consultant.

IT IS NOTED that publication of…

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.

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Details

Case: [2010] FamCA 408
Decision Date: 21 April 2010

CaseChat Overview and Summary

In the matter of *Jenkins and Lloyd (Contravention)*, Bennett J considered an application alleging contravention of parenting orders by the mother, Ms Lloyd, in relation to her child, B. The father, Mr Jenkins, sought orders for contravention.

The court was required to determine whether the mother had contravened specific paragraphs of existing parenting orders made on 4 September 2009. The alleged contraventions related to the mother's failure to deliver the child to a contact centre on two separate occasions, 20 December 2009 and 10 January 2010, for the purpose of spending time with the father. The central question was whether these failures occurred without reasonable excuse.

Bennett J found that the mother had contravened the orders on both occasions. Regarding the 20 December 2009 contravention, the court determined that the mother was two hours late in delivering the child and had no reasonable excuse. For the 10 January 2010 contravention, the court also found that the mother failed to deliver the child without reasonable excuse. Pursuant to s70NEB(1)(a) of the *Family Law Act 1975*, the court ordered both the mother and the father to contact and attend an initial assessment for a post-separation parenting program with a nominated provider. No further consequential orders or penalties were imposed for the 10 January 2010 contravention. The court otherwise dismissed the contravention application and reserved the issue of costs.

Orders

Orders of the court

That the alleged contravention by the mother of paragraph 4(d) of Orders made on 4 September 2009 is proved in that the mother was two hours late in delivering the child B born … December 2006 to S Contact Centre on 20 December 2009 for the purposes of spending time with the father and that the mother had no reasonable excuse.

That in respect of the aformementioned contravention and pursuant to s70NEB (1) (a) of the Family Law Act 1975, the mother MS LLOYD shall within 7 working days from the date of this order make contact with Life Works Relationship Counselling and Education Services, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program. If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the mother, the mother shall attend that program or that part of the program.

That pursuant to section 70NEB (1) (a) (ii) of the Family Law Act 1975, the father MR JENKINS shall within 7 working days from the date of this order make contact with Life Works Relationship Counselling and Education Services, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program. If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the father, the father shall attend that program or that part of the program.

That the alleged contravention by the mother of paragraph 4(d) of the Orders made on 4 September 2009 is proved in that she failed to deliver the child B born … December 2006 to S Contact Centre on 10 January 2010 for the purpose of spending time with the father and did so without reasonable excuse. In relation to this contravention I impose no further consequential orders or penalties.

That I otherwise reserve the issue of payment by the mother of the father’s costs of this day pursuant to s70NEB1 (f) and(g).

That otherwise the contravention application filed 30 March 2010 is hereby dismissed.

That the reasons for judgment this day be transcribed and that copies be made available to the parties and to the independent children’s lawyer in the substantive proceedings and to the Director of Child Dispute Services for the attention of Mr V, family consultant.

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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