Kalant & Jordain (No. 3) - [2021] FamCA 191

FAMILY COURT OF AUSTRALIA
Kalant & Jordain (No. 3) [2021] FamCA 191

File number(s): PAC 2727 of 2015

Judgment of: GILL J

Date of judgment: 9 April 2021

Catchwords: FAMILY LAW – CONTRAVENTION – where the mother had contravened parenting orders without reasonable excuse – proof beyond reasonable doubt on sanction – imprisonment only available where no other option effective for securing compliance – where mother was subject to concurrent 14 day terms of imprisonment which had been suspended – impact of imprisonment – order for suspension terminated - orders for mother to serve immediate term of imprisonment of 14 days – further suspended term of 14 days – no other actions required on contraventions or breaches of bond

Legislation: Family Law Act 1975 (Cth) div 13A, ss 70NFF, 70NFG

Cases cited:
McClintock & Levier (2009) FLC 93-401

Oswin & Oswin [2019] FamCAFC 164

Number of paragraphs: 20

Date of hearing: 16 February 2021, 4 March 2021 and 12 March 2021

Submissions received: 26 March 2021

Place: Canberra

Solicitor for the Applicant: Bainbridge Legal

Counsel for the Respondent: Mr White, SC

Solicitor for the Respondent: Legal Aid, ACT

Solicitor for the Independent Children's Lawyer: Ms M Burgess
ORDERS

PAC 2727 of 2015

BETWEEN:
MR KALANT

Applicant

AND:
MS JORDAIN

Respondent

MARY BURGESS

Independent Children’s Lawyer

ORDER MADE BY:

GILL J

DATE OF ORDER:

9 APRIL 2021

IT IS NOTED THAT
1.The effect of these orders is that Ms Jordain, born … 1985, will serve an immediate term of imprisonment of 14 days from 9 April 2021 until 23 April 2021 and will be subject to a further term of imprisonment of 14 days which will be fully suspended.

IT IS ORDERED THAT
1.Pursuant to s 70NFG(5) of the Family Law Act 1975 (Cth), Order 4 of the orders of 25 September 2020, being an order suspending the concurrent 14 day terms of imprisonment in relation to contraventions of 24 January 2020 and 21 February 2020, is terminated.
2.As a result of the termination of the order for suspension in Order 2 above, Ms Jordain is imprisoned for a period of 14 days from 9 April 2021 until 23 April 2021

IT IS FURTHER ORDERED THAT
3.In relation to the further contravention of 20 January 2021 of failing to allow X to spend time with her father, Ms Jordain shall:
(a)Serve a period of 14 days imprisonment; and
(b)Enter into the bond at Order 5.

4.On entry into the bond at Order 5, the term of imprisonment at Order 3 is suspended.
5.Ms Jordain is directed to enter into a bond pursuant to s 70NFB(2)(6) of the Family Law Act 1975 without surety or security in the following terms:
The bond
I, Ms Jordain, undertake to the Court that for a period of 24 months from the giving of this undertaking I will comply with the terms of any parenting order in force from time to time in relation to X, born on … 2013.
I acknowledge that should it be…

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 Kalant & Jordain (No. 3)

Details

AGLC: Kalant & Jordain (No. 3) [2021] FamCA 191
Case: [2021] FamCA 191
Decision Date: 9 April 2021

CaseChat Overview and Summary

In the matter of *Kalant & Jordain (No. 3)*, heard by Gill J, the dispute concerned allegations of contravention of parenting orders by the respondent mother. The applicant father sought orders in relation to these alleged contraventions.

The primary legal issue before the court was whether the mother had contravened the parenting orders without reasonable excuse. If a contravention was established beyond reasonable doubt, the court was then required to consider the appropriate sanction, with a focus on whether imprisonment was the only effective option for securing compliance with the orders.

Gill J found that the mother had contravened the parenting orders without reasonable excuse. The court noted that imprisonment is a sanction of last resort, to be employed only when no other measure is effective in securing compliance. Having regard to the mother's prior contraventions and the impact of imprisonment, the court ordered that the suspension of a previous 14-day term of imprisonment be terminated, and that the mother serve an immediate term of 14 days imprisonment. A further suspended term of 14 days was also imposed. No other actions were required in relation to these contraventions or breaches of bond.

Orders

Orders of the court

PAC 2727 of 2015

BETWEEN:

MR KALANT

Applicant

AND:

MS JORDAIN

Respondent

MARY BURGESS

Independent Children’s Lawyer

ORDER MADE BY:

GILL J

DATE OF ORDER:

9 APRIL 2021

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	PAC 2727 of 2015
Judgment of:	GILL J
Date of judgment:	9 April 2021
Catchwords:	FAMILY LAW – CONTRAVENTION – where the mother had contravened parenting orders without reasonable excuse – proof beyond reasonable doubt on sanction – imprisonment only available where no other option effective for securing compliance – where mother was subject to concurrent 14 day terms of imprisonment which had been suspended – impact of imprisonment – order for suspension terminated - orders for mother to serve immediate term of imprisonment of 14 days – further suspended term of 14 days – no other actions required on contraventions or breaches of bond
Legislation:	Family Law Act 1975 (Cth) div 13A, ss 70NFF, 70NFG
Cases cited:	McClintock & Levier (2009) FLC 93-401 Oswin & Oswin [2019] FamCAFC 164
Number of paragraphs:	20
Date of hearing:	16 February 2021, 4 March 2021 and 12 March 2021
Submissions received:	26 March 2021
Place:	Canberra
Solicitor for the Applicant:	Bainbridge Legal
Counsel for the Respondent:	Mr White, SC
Solicitor for the Respondent:	Legal Aid, ACT
Solicitor for the Independent Children's Lawyer:	Ms M Burgess

PAC 2727 of 2015
BETWEEN:	MR KALANT Applicant
AND:	MS JORDAIN Respondent
MARY BURGESS Independent Children’s Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	9 APRIL 2021