Levier and McClintock - [2008] FMCAfam 1107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEVIER & McCLINTOCK

[2008] FMCAfam 1107

FAMILY LAW – Children – contravention by the mother of an order permitting the child to spend time with the father – mother absconds and is located by police 13 months later – sentencing principles – sentence of 6 months imprisonment.

Applicant:

MR LEVIER

Respondent:

MS McCLINTOCK

File Number:

CAM 1312 of 2006

Judgment of:

Brewster FM

Hearing date:

24 September 2008

Delivered at:

Canberra

Delivered on:

24 September 2008

REPRESENTATION

Counsel for the Applicant:

Ms Tonkin

Solicitors for the Applicant:

Mazengarb Barralet Family Lawyers

Counsel for the Respondent:

Ms Burgess

Solicitors for the Respondent:

Legal Aid Office (ACT)

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 1312 of 2006

MR LEVIER

Applicant

And

MS McCLINTOCK

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

In this matter the respondent Ms McClintock, has admitted that she, without reasonable excuse, breached orders of this court made on 2 April 2007 and outlined in the first six counts in the contravention application, filed on behalf of the applicant father on 8 September 2008. I will briefly outline the background to those contraventions.
The parties were in a relationship from 1995 to the end of 2001 and there is one child of the relationship, [X], who was born in 1997. On

2 April 2007
orders were made in this Court providing for the father to spend time with the child. I do not need to set out the details of these orders. The contact provided in those orders did not occur according to the terms of the orders and in particular, in late June 2007, the mother left her home on the South Coast where the parties had been living and travelled to Queensland.
She says that this was intended initially to be a holiday for a couple of months. Be that as it may, the sequelae was a serious breach of the orders of 2 April. The situation was compounded however when the mother moved to and settled in Western Australia She enrolled the child in school, but under the surname of her partner. She did not voluntarily return to the South Coast and her whereabouts were unknown for some considerable period of time.
A recovery order was issued by me and ultimately the police were able to ascertain her whereabouts. The child was recovered on 5 August 2008 by the police, about 13 months after the mother left the South Coast. But for the police ascertaining her whereabouts I think it likely that she would have remained in Western Australia, or at least would never have returned to comply with the orders of the court.
I interpose at this stage that I had considered whether I should take into account as an aggravating factor in her conduct the very large amount of taxpayers’ money that must have…

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 Levier and McClintock

Details

AGLC: Levier and McClintock [2008] FMCAfam 1107
Case: [2008] FMCAfam 1107
Decision Date: 24 September 2008

CaseChat Overview and Summary

In this case, the Federal Magistrates Court was asked to decide on a contravention of court orders by a mother who had taken her child and fled to avoid contact with the child's father. The matter came before Brewster FM in the Federal Magistrates Court of Australia. The father had filed an application alleging that the mother had contravened court orders permitting him to spend time with their child, [X]. The mother had absconded with the child, moving to Western Australia, where she settled and enrolled the child in school under a different surname. The child was not returned until the police located the mother and child 13 months later.

The court was required to determine the appropriate legal response to the mother's actions. This involved considering whether the contravention was serious enough to warrant a custodial sentence, and if so, what the appropriate term of imprisonment would be. The court also had to decide on the issue of costs and whether it was appropriate to order the mother to pay the father's costs, given her financial circumstances.

Brewster FM concluded that the mother's actions constituted a serious contravention of the court orders, warranting a custodial sentence. The court considered the principles of criminal sentencing, particularly the need for general deterrence to prevent similar breaches of court orders in the future. The court found that while the imprisonment of the mother would cause hardship to her and the child, it was necessary to deter similar conduct by other parents. Consequently, the court sentenced the mother to six months imprisonment, to be served concurrently on each count of the contravention application. The court also ordered the mother to pay the father's costs, despite her financial hardship, as it was deemed to be in the child's best interests. The court adjourned other matters for further consideration, indicating that it would appoint an Independent Children's Lawyer.

Orders