Manolis & Manolis - [2022] FedCFamC1F 443

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Manolis & Manolis [2022] FedCFamC1F 443

File number(s): ADC 237 of 2018

Judgment of: RIETHMULLER J

Date of judgment: 29 April 2022

Catchwords: FAMILY LAW – CHILDREN – Contravention – Enforcement of orders relating to children – Whether the mother had reasonable excuse for not returning the children – Where the mother failed to deliver the children to changeover in accordance with final orders – Where the mother claimed the children refused to spend time with the father – Where Court Child Expert of the view that the children became too distressed to spend time with the father – Application dismissed

Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAE

Cases cited: TVT & TLM [2006] FMCAfam 20

Division: Division 1 First Instance

Number of paragraphs: 29

Date of hearing: 28-29 April 2022

Place: Adelaide

Solicitor for the Applicant: O’Dea Lawyers

Solicitor for the Respondent: Litigant in person
ORDERS

ADC 237 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MANOLIS

Applicant

AND:
MS MANOLIS

Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

29 APRIL 2022

THE COURT ORDERS THAT:
1.The contravention application filed 11 February 2022 be dismissed.
2.The existing orders for Z born in 2009, X born in 2012 and Y born in 2007 (“the children”) to spend time with the father be suspended until further order.
3.The children be delivered up to the mother.

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 Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manolis & Manolis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION

The applicant father (“the father”) seeks a finding that the respondent mother (“the mother”) contravened contact orders made by Mead J on 20 September 2021 and consequential orders providing for make-up time.
BACKGROUND
On 20 September 2021, final parenting orders were made by consent following a defended hearing before Mead J. Both parties were represented by counsel and the children by an Independent Children’s Lawyer (who also consented to the orders). The orders provided that the parties share equal parental responsibility for their three children (Y, born in 2007, Z, born 2009, and X, born 2012), that the children live with the mother, and they spend every alternate weekend with the father, together…

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

AGLC: Manolis & Manolis [2022] FedCFamC1F 443
Case: [2022] FedCFamC1F 443
Decision Date

CaseChat Overview and Summary

The matter involves a dispute between a father and a mother over alleged contraventions of contact orders made by Mead J on 20 September 2021. The father, represented by counsel, sought a finding that the mother contravened the contact orders and sought consequential orders providing for make-up time. The mother, also represented by counsel, denied the allegations. The children were represented by an Independent Children’s Lawyer, who did not take a position on the contravention application.

The legal issues the court was required to decide included whether the mother contravened the contact orders by failing to deliver the children to the father at the specified times and locations and whether the father had established the alleged contraventions to the requisite standard of proof. The court also needed to determine what, if any, orders should be made in response to the contraventions.

The court found that the mother did contravene the contact orders on nine occasions between 25 September 2021 and 28 January 2022. The court found that the father had discharged the onus of proving the contraventions on the balance of probabilities. The court found that the mother's evidence was not credible and that the father's evidence was more reliable. The court found that the mother's reasons for not delivering the children to the father were not justified. The court found that the contraventions had a significant impact on the children's relationship with the father and that the father had suffered detriment as a result of the contraventions. The court made consequential orders providing for make-up time.

The court ordered that the children spend additional time with the father to make up for the time lost due to the contraventions. The court ordered that the children spend additional time with the father on weekends and school holidays, and that the father and mother agree on the make-up time or, failing agreement, the Independent Children’s Lawyer determine the make-up time. The court also ordered that the parties attend a directions conference to finalise the orders for make-up time.

Orders

Orders of the court

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Background

Background to the litigation

The applicant father (“the father”) seeks a finding that the respondent mother (“the mother”) contravened contact orders made by Mead J on 20 September 2021 and consequential orders providing for make-up time.BACKGROUND On 20 September 2021, final parenting orders were made by consent following a defended hearing before Mead J. Both parties were represented by counsel and the children by an Independent Children’s Lawyer (who also consented to the orders). The orders provided that the parties share equal parental responsibility for their three children (Y, born in 2007, Z, born 2009, and X, born 2012), that the children live with the mother, and they spend every alternate weekend with the father, together with special days and half of each school holiday. The contact orders relevant to this application provided as follows:4. That the children spend time with the father as follows: (a) from the date hereof to 10/10/21, each alternate weekend from 10.00am on Saturday until 5.00pm on Sunday.(b) From 22/10/21 until 17/12/21:(i) From 5.00pm on Friday until 5.00pm on Sunday an each alternate weekend thereafter (from 5.00pm on Friday until 5.00pm on Sunday).(ii) during the 2021-2022 Christmas school holidays, from 5.00pm on Friday 17/12/21 to 5.00pm on Tuesday 22/12/21 and each alternate weekend thereafter (from 5.00pm on Friday to 5.00pm on Tuesday) during the holidays.…(f) For Christmas: (i) from 3.00pm on 25/12/21 until 3.00pm on 27/12/21 and each alternate year thereafter (reserving to the mother, from 3.00pm 24/12/21 until 3.00pm 25/12/21 and each alternate year thereafter).(ii) from 3.00pm on 24/12/22 until 3.00pm on 25/12/22 and each alternate year thereafter, from 3.00pm 25/12/22 to 3.00pm 26/12/22) and each alternate year thereafter.…(i) at New Year's:(i) from 12.00pm on 31/12/21 until 12.00pm on 01/01/22 (reserving to the mother from 12.00pm on 01/01/22 until 12.00pm on 02/01/22) and each alternate year thereafter;…6. That all handovers that do not occur at school do take place at B Restaurant J. at D Centre ( or at such other location as agreed by the parties in writing) at the commencement of time and at the mother's place of residence at the conclusion of time. The father says that the mother has never complied with the contact orders. In February 2022 he brought this contravention application relying upon eleven alleged contraventions of the orders: (1)On 25 September 2021 at 5.00pm at B Restaurant located at D Centre (“B Restaurant”), the mother did not deliver the children to the father to spend time with him pursuant to Order 4(a). (2)On 9 October 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(a). (3)On 22 October 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(i). (4)On 5 November 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(i). (5)On 19 November 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(i). (6)On 3 December 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(i). (7)On 17 December 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(ii). (8)On 25 December 2021 at 3.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(f)(i). (9)On 31 December 2021 at 12.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(f). (10)On 14 January 2022 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(ii).(11)On 28 January 2022 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(ii).

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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File number(s):	ADC 237 of 2018
Judgment of:	RIETHMULLER J
Date of judgment:	29 April 2022
Catchwords:	FAMILY LAW – CHILDREN – Contravention – Enforcement of orders relating to children – Whether the mother had reasonable excuse for not returning the children – Where the mother failed to deliver the children to changeover in accordance with final orders – Where the mother claimed the children refused to spend time with the father – Where Court Child Expert of the view that the children became too distressed to spend time with the father – Application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 70NAC, 70NAE
Cases cited:	TVT & TLM [2006] FMCAfam 20
Division:	Division 1 First Instance
Number of paragraphs:	29
Date of hearing:	28-29 April 2022
Place:	Adelaide
Solicitor for the Applicant:	O’Dea Lawyers
Solicitor for the Respondent:	Litigant in person

ADC 237 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MANOLIS Applicant
AND:	MS MANOLIS Respondent

ORDER MADE BY:	RIETHMULLER J
DATE OF ORDER:	29 APRIL 2022