M and G (No.4) - [2004] FMCAfam 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & G (No.4)

[2004] FMCAfam 296

FAMILY LAW – contravention of parenting orders – whether order breached – supervised contact – respondent claims contact centre relieved her of obligation to give contact forthwith – whether person ordered to give contact must personally attend – whether respondent understood her obligations under the orders – application proved – respondent fails to prove reasonable excuse.

Family Law Act 1975
Federal Magistrates Court Rules 2001

Applicant:

U T M

Respondent:

L M G

File No:

PAM1855 of 2001

Delivered on:

21 June 2004

Delivered at:

Parramatta

Hearing date:

3 June 2004

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr M Bellantonio

Solicitors for the Applicant:

Bellantonio & Rees

Respondent:

In person

Solicitor Advocate for the Children’s Representatives:

Ms F. Neilson

Solicitors for the Children’s Representative:

Legal Aid Commission of New South Wales

ORDERS

The respondent failed to comply with Order (1)(1) made 12 December 2003 in that she failed to make the children R G born 1996 and S G born 1998 available for contact at Campbelltown Contact Centre on 13 March 2004 without reasonable excuse.
The respondent failed to comply with Order (1)(2) made 12 December 2003 in that she failed to make the children R G and S G complete orientation for supervised contact at Campbelltown Contact Centre on 28 February 2004 without reasonable excuse.
These proceedings are adjourned for further hearing at 10 am on 1 July 2004.
In the event that the respondent seeks to appear by video link or audio link the respondent must apply in writing to my associate no later than five (5) working days prior to the adjourned date. Copies of all correspondence submitted in support of this application shall be immediately copied to the children’s representative and the applicant’s solicitor.
The respondent mother, L M G pay the applicant father’s costs in the sum of $5,920 within six months.
The money payable pursuant to Order 5 shall be paid in equal monthly instalments, the first payment shall be made four weeks from today’s date.
In the event that the respondent defaults in making any instalment payment, the entire balance outstanding is immediately due and payable.
Interest calculated in accordance with the Federal Magistrates Court Rules 2001, (incorporating the Family Law Rules) is payable on the balance outstanding two months from the date of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

Pam1855 of 2001

U T M

Applicant

And

L M G

Respondent

REASONS FOR JUDGMENT

The application

This is an application that the respondent contravened parenting orders. It is brought pursuant to Division 13A of Part VII of the Family Law Act 1975.
“The applicant”, U T M, started the proceedings when he filed a contravention application on 22 April 2004. The applicant claims that L M G (“the respondent”) contravened orders 1(i) and 1(ii) made in this court on 12 December 2003 (the second orders). These orders incorporate Order 1 made…

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.

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Details

Case: [2004] FMCAfam 296
Decision Date: 21 June 2004

CaseChat Overview and Summary

The case of M and G (No.4) involved a dispute between the parents, the applicant father and the respondent mother, concerning the non-compliance with court-ordered contact arrangements for their children. The matter was heard before the Family Court, where the father brought an application against the mother for breaches of specific contact orders made on 12 December 2003. The children, R G and S G, were born in 1996 and 1998 respectively.

The court was tasked with determining whether the mother had failed to comply with the stipulated contact orders, specifically in failing to make the children available for contact at Campbelltown Contact Centre on 13 March 2004 and in not ensuring that the children completed orientation for supervised contact at the same centre on 28 February 2004. Both instances were alleged to have occurred without reasonable excuse. The court considered the evidence presented and the reasons provided, if any, for non-compliance by the mother.

Upon reviewing the evidence, the court found that the mother had indeed failed to comply with the orders. Consequently, the court issued orders holding the mother responsible for the breaches and mandated that the proceedings be adjourned for a further hearing. The court also ruled that if the mother intended to appear via video or audio link, she must submit a written application to the court’s associate at least five working days before the adjourned date, with copies of all correspondence to be provided to the children’s representative and the applicant’s solicitor. Additionally, the court ordered the mother to pay the father's costs in the sum of $5,920, payable in monthly instalments over six months, with a condition that the entire outstanding balance would become immediately due if any payment was defaulted. Interest on the unpaid balance was to be calculated according to the relevant statutory provisions.

Orders

Orders of the court

The respondent failed to comply with Order (1)(1) made 12 December 2003 in that she failed to make the children R G born 1996 and S G born 1998 available for contact at Campbelltown Contact Centre on 13 March 2004 without reasonable excuse.

The respondent failed to comply with Order (1)(2) made 12 December 2003 in that she failed to make the children R G and S G complete orientation for supervised contact at Campbelltown Contact Centre on 28 February 2004 without reasonable excuse.

These proceedings are adjourned for further hearing at 10 am on 1 July 2004.

In the event that the respondent seeks to appear by video link or audio link the respondent must apply in writing to my associate no later than five (5) working days prior to the adjourned date. Copies of all correspondence submitted in support of this application shall be immediately copied to the children’s representative and the applicant’s solicitor.

The respondent mother, L M G pay the applicant father’s costs in the sum of $5,920 within six months.

The money payable pursuant to Order 5 shall be paid in equal monthly instalments, the first payment shall be made four weeks from today’s date.

In the event that the respondent defaults in making any instalment payment, the entire balance outstanding is immediately due and payable.

Interest calculated in accordance with the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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