Lonsdale and Trevor (No 2)

[2020] FamCA 886

FAMILY COURT OF AUSTRALIA

LONSDALE & TREVOR (NO. 2) [2020] FamCA 886

FAMILY LAW – ORDERS – Contravention – Where the father alleged the mother had contravened orders by not making the child available to the father – Where the mother admitted the breach but contended she had a reasonable excuse – Where the contravention was proven – Where the father does not seek a penalty be imposed – Where the contravention is regarded as less serious – no penalty. 

FAMILY LAW – ORDERS – Variation – Where the mother seeks a variation of the final orders to better particularise the commencement of the school holidays – Where the issue was central to many counts of an Application for Contravention – Orders.

Family Law Act 1975 (Cth) ss 70NBA, 70NEB

APPLICANT: Mr Lonsdale

RESPONDENT: Ms Trevor

FILE NUMBER: ADC 2815 of 2015

DATE DELIVERED: 21 October 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 8 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Tinning

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

Orders

1. There be no order as to penalty arising from the finding on 29 September 2020 that count 5 (paras 44 and 45) of the Contravention Application filed 13 January 2020 is proven.

2. That paragraph 4 of orders made 28 August 2019 be varied as follows:-

   4(c)For the purposes of the calculation of the school holiday period, the school holidays shall commence on the Friday of the last week of the school term and in the event the children conclude the school term on different weeks, on the Friday of the last week of the term of the child who finishes last, with such period to conclude at 3.00 pm on the day prior to the commencement of school;

   4(d)That the time the children spend with the father pursuant to paragraph 3 and 5 of orders made 7 March 2018 be suspended either in whole or in part in respect of such portion of the time as shall coincide with any school holiday period as defined in paragraph 4(c) herein.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lonsdale & Trevor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2815 of 2015

Mr Lonsdale

Applicant

And

Ms Trevor

Respondent

REASONS FOR JUDGMENT

Introduction 

1. Mr Lonsdale (“the father”) and Ms Trevor (“the mother”) are the parents of B born in 2008 and C born in 2015 (collectively “the children”).

2. The father alleged that the mother was in breach of a parenting order pertaining to the children.

3. On 29 September 2020 I found that count 5 of the Application for Contravention filed 13 January 2020 was proven and that the mother was in breach of order 5(h) of orders made 7 March 2018 in that on 3 January 2020 she did not make C available to the father.

4. I listed the sentencing of the mother for hearing on 8 October 2020 and determined that the breach was at the very low end of the scale and should be regarded as a sub-div E breach namely, a less serious contravention.[1]

   [1]Family Law Act 1975 1975 (Cth) pt VII div 13A sub-div E.

5. The father did not seek that a penalty be imposed over and above the finding that the mother had breached the order.  The concern of the father was to reinforce to the mother the need for compliance with the Court orders or be at risk of any penalty for future breach which may be dealt with as a more serious contravention.

6. The mother did not speak against the father’s position save that she has made an application for costs which is listed for further hearing.

7. Section 70NEB of the Family Law Act 1975 (Cth) (“the Act”) provides for the exercise of the Court’s powers as to penalty. It is not mandatory that a penalty be imposed. Taking into account the circumstances surrounding the breach and the submissions made on behalf of the parties, I have determined that no penalty should be imposed.

8. As set out in the judgment delivered on 29 September 2020,[2] much of the dispute between the parties arises from their inability to agree when school holidays should be deemed to commence and what might determine or designate the last day of school term.

   [2] See Lonsdale & Trevor [2020] FamCA 825

9. Whilst the issue was central to many of the counts that were included in the contravention application, the issue was highlighted by the mother’s Application in a Case filed 14 February 2020 which seeks a variation of the final orders made 28 August 2019 to better particularise the time the children would spend with each of the parties during school holidays.

10. The mother seeks the following order:-

    for the purposes of the calculation of the school holiday period, the school holidays shall commence on the Friday of the last week of the term and in the event the children conclude the school term on different weeks, on the Friday of the last week of the term of the child who finishes last, with such period to conclude at 3.00pm on the day prior to the commencement of school.[3]

    [3] Application in a Case filed 14 February 2020 at [6(3)].

11. The position adopted by and on behalf of each of the parties suggested that they recognised the good sense in attempting to better define the last day of school term and therefore the commencement of the school holidays.

12. It is an unfortunate reflection of the inability of the parties to communicate with each other that no agreement has been reached even though the mother’s proposed variation to the final orders was not controversial.

13. The parties were made aware of my intention pursuant to s 70NBA of the Act to make orders in terms of the mother’s application. I also propose to put in place a further order which would suspend the father’s periodic time for any portion of the period either whole or in part that coincided with school holidays.

14. Neither party spoke against such further variation.

Conclusion

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 21 October 2020.

Associate: 

Date:  21 October 2020