Lewis & Mitchell - [2022] FedCFamC2F 771

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lewis & Mitchell [2022] FedCFamC2F 771

File number(s): HBC 1025 of 2021
HBC 1055 of 2021

Judgment of: JUDGE TAGLIERI

Date of judgment: 16 June 2022

Catchwords: FAMILY LAW – contravention – parenting orders – admissions on grounds of reasonable excuse – whether reasonable excuse – two counts of contravention found to be without reasonable excuse – six months bond to be on good behaviour entered in to

Legislation: Family Law Act 1975 Division 13A, ss 70NAE, 70NAF

Cases cited:
Childers & Leslie [2008] FamCAFC 5

Fooks & Clarke [2004] FamCA 212

Hatch & Vining [2019] FCCA 1705

Malberd & Malberd & Anor (No 2) [2010] FamCA 586

O'Brien & O’Brien (1993) FLC ¶92-396

P & P [2002] FMCAfam 315

Stevenson v Hughes (1993) FLC ¶92-363

TVT & TLM [2006] FMCAfam 20

Division: Division 2 Family Law

Number of paragraphs: 64

Date of hearing: 18 May 2022

Place: Hobart

Counsel for the Applicant: Ms Mooney of Senior Counsel

Solicitor for the Applicant: Bishops Barristers & Solicitors

Counsel for the Respondent: Mr Verney of Counsel

Solicitor for the Respondent: Matthew Verney Solicitors

Solicitor for the Independent Children’s Lawyer: Ms Hunt

Counsel for the Independent Children’s Lawyer: Tasmanian Legal Aid

ORDERS

HBC 1025 of 2021
HBC 1055 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR LEWIS

Applicant

AND:
MS MITCHELL

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

18 MAY 2022

THE COURT ORDERS THAT:
1.Leave be granted to the Mother to amend paragraph 8 and 10 of the Contravention Application filed 9 August 2021, to refer to 4(a)(i).
2.HBC1025/2021 (Mitchell & Lewis) be listed for a Judicial Settlement Conference in respect of the Application in a Proceeding filed 30 September 2021 before Judge Taglieri at 9.30am on 19 May 2022.

THE COURT FINDS THAT:
3.The Respondent with reasonable excuse contravened 4(a)(ii) of the Orders of 15 April 2021 on the following occasion:
(a)22 July 2021 at 4.00pm

THE COURT FINDS THAT:
4.The Respondent without reasonable excuse contravened 4(a)(i) of the Orders of 15 April 2021 on the following occasions:
(a)28 July 2021 at 4.00pm; and
(b)30 July 2021 at 4.00pm.

THE COURT ORDERS THAT:
5.The Respondent is to enter into a bond to be on good behaviour for six months, the final written terms of which are to be determined and commencing on 19 May 2022.

THE COURT NOTES THAT:
A.Written reasons for judgment in relation to the Contravention Application filed 9 August 2022 and the findings made today will be delivered as soon as practicable.
B.The Respondent will enter into and sign the written bond pursuant to s.70NEC of the Family Law Act 1975 when the matter is before the Court on 19 May 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal…

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 Lewis & Mitchell

Details

AGLC: Lewis & Mitchell [2022] FedCFamC2F 771
Case: [2022] FedCFamC2F 771
Decision Date

CaseChat Overview and Summary

This case involved proceedings in the Family Court of Australia between Mr Lewis (the father) and Ms Mitchell (the mother) concerning their children, X and Y. The matter came before Judge Taglieri who was required to determine whether the father had contravened the final parenting orders made by consent on 15 April 2021. The mother alleged that the father had contravened the orders on three occasions by preventing Y from spending time with her. The father pleaded guilty to all three contraventions on the basis of reasonable excuse. The Court found that the father had contravened the orders on all three occasions, but only found the contravention on 22 July 2021 to be with reasonable excuse. The Court found that the stepmother had instigated a disagreement about when Y should return to the father’s care by sending text messages to Y. The text messages had been sent with the father's knowledge and approval and were critical of the mother, likely confusing the child. The father had failed to take reasonable action to facilitate compliance with the orders after the first contravention on 22 July 2021. The Court ordered that the father enter into a bond to be of good behaviour for six months.

Orders