MACKENZIE & GALE (No.2)

[2015] FCCA 3117

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACKENZIE & GALE (No.2) [2015] FCCA 3117

Catchwords:
FAMILY LAW – Children – parenting orders – contravention of parenting orders – orders made after contraventions established – further parenting order compensating applicant for time not spent with child as a result of the contraventions – “make-up time”.

COSTS – Application for costs – where contraventions established – party and party costs – time to pay.

Legislation:

Family Law Act 1975 (Cth), ss.70NAA, 70NEB, 117

Federal Circuit Court Rules 2001, Part 1, Sch. 1

Cases cited:
Mallet v Mallet (1984) 156 CLR 605
McAlpin v McAlpin (1993) 16 Fam LR 888; FLC 92-411
MacKenzie & Gale [2015] FCCA 2755
Penfold v Penfold (1980) 144 CLR 311

Applicant: MR MACKENZIE

Respondent: MS GALE

File Number: CRC 125 of 2010

Judgment of: Judge Scarlett

Hearing date: Dealt with in chambers

Date of Last Submission: 13 November 2015

Delivered at: Sydney

Delivered on: 16 November 2015

REPRESENTATION

Solicitor for the Applicant: Mrs Tanner

Solicitors for the Applicant: Coffs Coast Family Law

Solicitor for the Respondent: Ms McKinnon

Solicitors for the Respondent: Slater & Gordon

ORDERS

1. The Respondent mother is to provide to the Applicant father by way of compensation for time that the father did not spend with the child X born (omitted) 2003 a total of eight (8) nights time with the child either by way of individual nights or in blocks of two (2) the first of which is to occur on or after 19 February 2016.

2. It is a condition of the above Order that the father is restrained by injunction from consuming any alcohol whilst the child X is in his care in accordance with the above Order.

3. The mother is to pay the father’s costs of the Application-Contravention in the sum of $4,135.50 within four (4) months of the date of this Order.  

IT IS NOTED that publication of this judgment under the pseudonym MacKenzie & Gale (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

CRC 125 of 2010

MR MACKENZIE

Applicant

And

MS GALE

Respondent

REASONS FOR JUDGMENT

Application

1. The Respondent Mother has been found to have contravened earlier parenting orders without reasonable excuse on four occasions but to have established a reasonable excuse on three other occasions (MacKenzie & Gale[1]). Both the Applicant and the Respondent have now made submissions as to penalty and costs.

   [1] [2015] FCCA 2755

Submissions as to Penalty

1. The Father submits that the appropriate Order should be for make-up time:

   1.  That the mother provide 8 nights makeup time as follows:

   1.1The father will advise the mother by text message at least 7 days prior to the date/s the makeup time is to be taken, such time not to be refused by the mother.

2. The Mother submits that there should be no financial penalty imposed on her. In relation to makeup time she seeks to have the input of a Family…