KELSON & DELL - [2020] FamCA 795

FAMILY COURT OF AUSTRALIA

KELSON & DELL

[2020] FamCA 795

FAMILY LAW – ORDERS – Contravention – Where final orders were made – Where the mother alleges the father has breached the orders by changing the schools of one of the children – Where the father admits the breach – Where it is considered a less serious breach – Where neither party seeks the retention of the final orders – Where the utility of the necessity for a penalty for future compliance with the final orders is therefore limited – Where it is the first time the father has breached an order – Where future breaches may be considered more serious – No penalty imposed.

FAMILY LAW – ORDERS – Variation – With whom a child lives and spends time - Where final orders were made for the children to live with the father and spend time with the mother – Where the orders no longer reflect the current circumstances – Where one child now lives with the mother and the other lives with the father – Where the father and child living with him have relocated to Queensland – Where the mother seeks to spend time with the child in the upcoming school holidays – Where the father does not oppose time spending but opposes the amount of time the mother seeks – Where the child has expressed strong views that the time he spends with the mother be subject to his wishes – Where the child would not spend any time with the mother and his siblings if it is not ordered – Best interests of the child – Orders.

FAMILY LAW – INJUNCTIONS – Where the mother and the child’s siblings are participants in the B Church – Where the family consultant considered the child was concerned he would be pressured to accept the faith of the mother and his siblings if he were to spend time with them – Where the child is reluctant to spend time with the mother – Where the Court is not to prefer one religion to another – Best interests of the child – Orders.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 70NBA, 70NEA, 70NEB,

Litchfield & Litchfield (1987) FLC 91-840
Paisio & Paisio (1979) FLC 90-695
Rice & Asplund (1979) FLC90-725
Sandler & Kerrington (2007) FLC 93-323

APPLICANT:

Ms Kelson

RESPONDENT:

Mr Dell

FILE NUMBER:

ADC

1766

2016

DATE DELIVERED:

23 September 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

11 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dillon

SOLICITOR FOR THE APPLICANT:

Carlin Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Miller

SOLICITOR FOR THE RESPONDENT:

Andersons Solicitors

NOTING the finding that Mr Dell has contravened order 12 of orders made 24 September 2018 without reasonable excuse

Orders

In respect of the finding of a contravention of order 12 of orders made 24 September 2018, no penalty be imposed.
That each party shall bear their own costs of and incidental to…

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 KELSON & DELL

Details

AGLC: KELSON & DELL [2020] FamCA 795
Case: [2020] FamCA 795
Decision Date: 23 September 2020

CaseChat Overview and Summary

In the Family Court of Australia, Berman J considered a contravention application and an application for variation of final orders concerning two children, X and Y. The mother alleged the father had contravened final orders by changing the children's schools, an admission the father made. However, neither party sought to uphold the original final orders, and the court found the contravention to be less serious, particularly as it was the father's first breach.

The court was required to determine whether to impose a penalty for the contravention, given its limited utility in ensuring future compliance. Additionally, the court had to consider the variation of existing final orders regarding the children's living arrangements and time spent with each parent, as the original orders no longer reflected the current circumstances. One child, X, now lived with the mother, while the other, Y, lived with the father in Queensland. The court also had to address the child Y's expressed wishes regarding time spent with the mother and the mother's siblings, and the potential for religious pressure.

Berman J reasoned that given the limited utility of a penalty for future compliance and the father's first breach, no penalty would be imposed for the contravention. The court found that the original final orders were no longer reflective of the children's current living arrangements. The court made new orders for X to live with the mother and Y to live with the father, with specific provisions for Y to spend time with the mother during upcoming school holidays, subject to agreement and travel restrictions. Crucially, an injunction was granted restraining the mother from involving Y in activities of the B Church, including specific religious concepts, unless Y wished to attend, reflecting the child's concerns about religious pressure.

Orders

Orders of the court

In respect of the finding of a contravention of order 12 of orders made 24 September 2018, no penalty be imposed.

That each party shall bear their own costs of and incidental to the Contravention Application.

That paragraphs 5, 6, 7, 8, 9, 20, 21, 22, 23 and 24 of the orders made 24 September 2018 be suspended in their operation.

That X born … 2006 live with the mother.

That Y born … 2007 live with the father.

That X spend time with the father subject to his wishes.

That Y spend time with the mother for a period of five (5) days and four (4) nights at times to be agreed during the upcoming Queensland school holidays between 25 September 2020 and 5 October 2020.

That Y spend such further time with the mother as may be agreed between the parties.

That the parties will each pay one half of the costs of plane travel for Y from Brisbane to Adelaide and return PROVIDED that these orders shall be subject to any COVID-19 travel restrictions and shall not impose an obligation on Y to quarantine or self-isolate.

10.

That the mother be restrained and an injunction is hereby granted restraining her from involving Y in:-

(a) Any activity of the B Church, including Bible study, daily reading, meetings, services or conventions;

(b) B Church field service including being present during or participating in door knocking and/or revisit;

(d) Adult religious concepts including but not limited to Armageddon, Paradise, Heaven or Hell.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.