Macks & Gambrell - [2023] FedCFamC2F 635

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Macks & Gambrell [2023] FedCFamC2F 635

File number: MLC 12029 of 2019

Judgment of: JUDGE MCGINN

Date of judgment: 25 May 2023

Catchwords: FAMILY LAW – Contravention – contraventions conceded – reasonable excuses not established – compensatory time – bond – variation of orders - costs

Legislation:
Family Law Act 1975

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Federal Circuit and Family Court of Australia (Family Law) Rules 2020

Cases cited:
B & W (No 1) [2003] FMCAfam 101

Baker & Bond (No 2) [2023] FedCFamC1A 26

Black & Black [2005] FMCAfam 567

Childers & Leslie [2008] FamCAFC 5

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655

Gaunt & Gaunt (1978) 4 FamLR 305

H & V [2005] FMCAfam 519

Lenova & Lenova (Costs) [2011] FamCAFC 141

Mitty & Mitty [2012] FamCA 329

Taikato v R [1996] HCA 28; (1996) 186 CLR 454

Division: Division 2 Family Law

Number of paragraphs: 121

Date of hearing: 17 April 2023

Place: Adelaide

Counsel for the Applicant: Ms Tiernan

Solicitor for the Applicant: Jellie McDonald

Respondent: Self represented
ORDERS

MLC 12029 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GAMBRELL

Applicant

AND:
MS MACKS

Respondent

order made by:

JUDGE MCGINN

DATE OF ORDER:

25 May 2023

UPON NOTING:
A.That the respondent mother has contravened the following orders without reasonable excuse:
a.order 3.1 of the orders of 19 May 2021;
b.order 5.1 of the orders of 19 May 2021; and
c.order 5.3 of the orders of 19 May 2021.

B.That there have been no previous orders with sanction or the taking of an action for breach of the parenting order of 19 May 2021 and there has been no adjournment of any pending application for variation, suspension or discharge of the said parenting order or revival of an earlier parenting order.

IT IS ORDERED:
1.That pursuant to section 70NEB of the Family Law Act 1975 (Cth) (“the Act”):
(a)the respondent mother is required to enter into a bond pursuant to section 70NEC of the Act for a period of 20 months upon condition that she complies with all parenting orders made and to be made under the Act and that in the event that she breaches the condition of that bond she shall then forfeit to the Commonwealth of Australia the sum of $1,000;
(b)the respondent mother do give to and the applicant father do take compensatory time with the child X born in 2019 pursuant to subsection 70NEB(4) of the Act from 11.00am to 6.00pm on each of;
(i)10 June 2023;
(ii)24 June 2023;
(iii)8 July 2023;
(iv)22 July 2023; and
(v)5 August 2023;

(c)the respondent mother do pay the applicant father’s costs in relation to the Application – Contravention filed 9 September 2022 fixed in the sum of $4,460 (inclusive of GST) within eight (8) months.

2.This matter is adjourned to 9:30am on 4 July 2023

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 Macks & Gambrell

Details

AGLC: Macks & Gambrell [2023] FedCFamC2F 635
Case: [2023] FedCFamC2F 635
Decision Date

CaseChat Overview and Summary

This case involves a contravention application brought by the father, Gambrell, against the mother, Macks, regarding alleged breaches of parenting orders made on 19 May 2021 concerning their child, X. The father alleged that the mother contravened orders 3.1, 5.1, and 5.3 without reasonable excuse. The mother conceded the contraventions but argued that there was a reasonable excuse for each of the contraventions. The court found that the mother contravened the orders without reasonable excuse in respect of seven out of the eight counts. The court considered the sanctions to be imposed under section 70NEB of the Family Law Act 1975 and decided that the mother should complete a post-separation parenting program, compensate the father for the lost time with the child, enter into a bond, and pay some of the father's costs. The court also varied the parenting orders regarding changeover arrangements and added an order precluding denigration. The contravention application was dismissed in relation to the remaining count.

Orders