McCulloch and Pickett - [2017] FCCA 212

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCULLOCH & PICKETT

[2017] FCCA 212

Catchwords:
FAMILY LAW – Contravention proceedings – 8 counts – where the father had not spent court-ordered time with the two children of the relationship for six months at time of trial – appropriate penalties.

Legislation:

Family Law Act 1975, ss.70NFB(2), 70NAC, 70NAD, 60CC, 65M, Division 13A, 65NA, 70NEB, 70NEC, 70NECA, 70NFA

Cases cited:

Stamp & Stamp (2014) FCCA 1269

Hugh & Sawer [2010] FamCA 290
Elspeth & Peter, Mark & Peter and John & Peter [2007] FamCA 655

Applicant:

MR MCCULLOCH

Respondent:

MS PICKETT

File Number:

MLC 777 of 2015

Judgment of:

Judge Small

Hearing dates:

15 September 2016 & 16 September 2016

Date of Last Submission:

16 September 2016

Delivered at:

Melbourne

Delivered on:

10 February 2017

REPRESENTATION

Counsel for the Applicant:

Mr Werner of Counsel

Solicitors for the Applicant:

Taussig Cherrie Fildes

Solicitors for the Respondent:

Self-represented

ORDERS

THE COURT FINDS THAT:

The mother did, on 15 April 2016, and without reasonable excuse, withdraw the child X from the (hobby omitted) Team without first obtaining the consent of the father in writing, in contravention of Paragraph 15 of the Orders made in the Federal Circuit Court of Australia on 9 March 2016 (“the orders”).
The mother did, on 25 April 2016 at 4:00 p.m., and without reasonable excuse, fail to collect the children X and Y (“the children”) from the father’s home at the conclusion of the father’s time with the children, in contravention of Paragraph 7(a) of the orders.
The mother did, on 6 May 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 6 May 2016 to 4:00 p.m. on Sunday 8 May 2016, in contravention of Paragraph 2(a)(i) of the orders.
The mother did, on 10 June 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 10 June 2016 to 4:00 p.m. on Monday 13 June 2016, in contravention of Paragraph 2(a)(iii)(B) of the orders.
The mother did, on 17 June 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 17 May 2016 to 4:00 p.m. for the first two weeks of the Term 2 school holidays, in contravention of Paragraph 2(c)(i) of the orders.

AND THE COURT ORDERS THAT:

Pursuant to s.70NFB(2) of the Family Law Act 1975, the mother shall enter into a Bond of one year’s duration with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.
The mother shall, within 7 days, do all such acts and things and sign all such documents as may be necessary for her to enrol in a post-separation parenting course at CatholicCare (omitted) in the State of Victoria (omitted).
The mother shall, within 7 days, attend upon…

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 McCulloch and Pickett

Details

AGLC: McCulloch and Pickett [2017] FCCA 212
Case: [2017] FCCA 212
Decision Date: 10 February 2017

CaseChat Overview and Summary

In *McCulloch and Pickett*, heard by Judge Small, the father applied to the Federal Circuit Court of Australia alleging that the mother had contravened parenting orders made on 9 March 2016. The father's applications detailed several instances where the mother allegedly failed to comply with the orders, including withdrawing the child from a hobby without consent, failing to collect children, and refusing the father time with the children on multiple occasions.

The central legal issue before the court was whether the mother had contravened the parenting orders without reasonable excuse, as alleged by the father. The court was required to determine if the specific actions of the mother constituted breaches of the court's orders and, if so, what consequences should follow.

The court found that the mother had, on multiple occasions and without reasonable excuse, contravened the parenting orders. These contraventions included withdrawing the child from a hobby, failing to collect the children, and refusing the father time with the children as stipulated in the orders. The court applied the provisions of section 70NFB(2) of the *Family Law Act 1975* to address these contraventions. Consequently, the mother was ordered to enter into a one-year bond to be of good behaviour and comply with court orders, to enrol in a post-separation parenting course, and to obtain a Mental Health Plan and attend psychological treatment, providing evidence of attendance to the father's solicitors. The father's contravention applications were otherwise dismissed.

Orders

Orders of the court

THE COURT FINDS THAT:

The mother did, on 15 April 2016, and without reasonable excuse, withdraw the child X from the (hobby omitted) Team without first obtaining the consent of the father in writing, in contravention of Paragraph 15 of the Orders made in the Federal Circuit Court of Australia on 9 March 2016 (“the orders”).

The mother did, on 25 April 2016 at 4:00 p.m., and without reasonable excuse, fail to collect the children X and Y (“the children”) from the father’s home at the conclusion of the father’s time with the children, in contravention of Paragraph 7(a) of the orders.

The mother did, on 6 May 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 6 May 2016 to 4:00 p.m. on Sunday 8 May 2016, in contravention of Paragraph 2(a)(i) of the orders.

The mother did, on 10 June 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 10 June 2016 to 4:00 p.m. on Monday 13 June 2016, in contravention of Paragraph 2(a)(iii)(B) of the orders.

The mother did, on 17 June 2016 at 4:00 p.m., and without reasonable excuse, refuse to allow the father to spend time with the children from 4:00 p.m. on Friday 17 May 2016 to 4:00 p.m. for the first two weeks of the Term 2 school holidays, in contravention of Paragraph 2(c)(i) of the orders.

AND THE COURT ORDERS THAT:

Pursuant to s.70NFB(2) of the Family Law Act 1975, the mother shall enter into a Bond of one year’s duration with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.

The mother shall, within 7 days, do all such acts and things and sign all such documents as may be necessary for her to enrol in a post-separation parenting course at CatholicCare (omitted) in the State of Victoria (omitted).

The mother shall, within 7 days, attend upon her general medical practitioner and obtain a Mental Health Plan referring her to a psychologist to address the issues raised in the Reasons for Judgment in these proceedings, and the mother shall attend upon the psychologist for the duration of that Mental Health Plan and shall provide to the psychologist a copy of the Reasons for Judgment in these proceedings, and, within 14 days of the conclusion of that Mental Health Plan, the mother shall provide to the solicitors for the father a letter from the psychologist stating the number of sessions the mother has attended and confirming that the psychologist has read the Reasons for Judgment in these proceedings.

The Contravention Applications filed by the father on 17 May 2016 and 14 July 2016 are otherwise dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.