Mazzotti and Aldridge - [2007] FamCA 1183

FAMILY COURT OF AUSTRALIA

MAZZOTTI & ALDRIDGE

[2007] FamCA 1183

FAMILY LAW - ENFORCEMENT – PARENTING ORDER – Contravention of orders that the child aged three spend time with her father – prima facie case found of breach - reasonable excuse asserted for all alleged breaches however some contraventions were found – PENALTY – inability of Court to order a bond and community service order as a result of drafting defects in the legislation – order of ‘make-up’ time and costs against the mother

Family Law Act 1975

Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072
Stevenson v Hughes (1993) FLC ¶92-363

APPLICANT:

Mr Mazzotti

RESPONDENT:

Ms Aldridge

FILE NUMBER:

CAF

262

2005

DATE DELIVERED:

5 October 2007

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

4 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Gavin Howard

SOLICITOR FOR THE RESPONDENT:

Mr Richard Monteleone

The mother contravened without reasonable excuse parenting orders of 27 February 2007 on 14 March 2007, 15 August 2007 and 25 July 2007.

ORDERS

That by way of compensatory time the father will spend three hours unsupervised time with the child each Tuesday and Thursday for a period of three weeks, commencing on 9 and 11 October 2007.
That commencing on 31 October 2007 the father will spend three hours unsupervised with the child each Wednesday from 12 noon until 3 pm.
That the child will spend time with the father by way of the mother dropping off and collecting the child from the F in K at the commencement and conclusion of each period of time that the child spends with the father.
That the mother pay the father’s costs of and incidental to this application as assessed or agreed. Payment of such costs is postponed until the division of property between the mother and the father pursuant to the orders that will flow from the judgment that I am presently reserved to deliver.
That the matter be listed before me on Wednesday 28 November 2007 at 2.15 pm, unless the Family Consultant has an alternative recommendation.
That the application about contravention is otherwise removed from the pending cases list.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Mazzotti v Aldridge.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 262 of 2005

Mr Mazzotti

Applicant

And

Ms Aldridge

Respondent

REASONS FOR JUDGMENT

(Contravention)

Foreword

By an application filed on 11 September 2007 the father of E, born in October 2003, sought that the mother be dealt with for contravention of parenting orders made by me on 27 February 2007.
The father asserted seven breaches of the orders referred to, six of which related to a failure without reasonable excuse by the respondent mother to allow the child to spend time with the applicant.
The seventh allegation asserted that:
“The…

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 Mazzotti and Aldridge

Details

AGLC: Mazzotti and Aldridge [2007] FamCA 1183
Case: [2007] FamCA 1183
Decision Date: 5 October 2007

CaseChat Overview and Summary

In *Mazzotti and Aldridge*, heard in the District Court, the dispute concerned parenting arrangements for a child. The father sought orders for unsupervised time with the child, and the mother was ordered to pay the father's costs of the application.

The court was required to determine the appropriate schedule for unsupervised time between the father and the child, and to make orders regarding the costs of the application. The court also needed to consider the Family Consultant's recommendations for future proceedings.

The court ordered that the father would spend compensatory unsupervised time with the child on Tuesdays and Thursdays for three hours each, for a period of three weeks, commencing in early October 2007. Further, commencing in late October 2007, the father would spend three hours unsupervised time with the child each Wednesday. The arrangements for the child's transfer to and from the father's care were to be managed by the mother. The mother was ordered to pay the father's costs, with payment postponed until the division of property. The matter was listed for further hearing in late November 2007, unless the Family Consultant provided an alternative recommendation, and the application concerning contravention was removed from the list.

Orders

Orders of the court

That by way of compensatory time the father will spend three hours unsupervised time with the child each Tuesday and Thursday for a period of three weeks, commencing on 9 and 11 October 2007.

That commencing on 31 October 2007 the father will spend three hours unsupervised with the child each Wednesday from 12 noon until 3 pm.

That the child will spend time with the father by way of the mother dropping off and collecting the child from the F in K at the commencement and conclusion of each period of time that the child spends with the father.

That the mother pay the father’s costs of and incidental to this application as assessed or agreed. Payment of such costs is postponed until the division of property between the mother and the father pursuant to the orders that will flow from the judgment that I am presently reserved to deliver.

That the matter be listed before me on Wednesday 28 November 2007 at 2.15 pm, unless the Family Consultant has an alternative recommendation.

That the application about contravention is otherwise removed from the pending cases list.

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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