Minh and Cong - [2010] FMCAfam 1465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MINH & CONG

[2010] FMCAfam 1465

FAMILY LAW – Contravention – parenting orders – Part VII, Division 13A Family Law Act 1975.

Evidence Act 1995, s.140
Family Law Act 1975, ss.62B, 65N, 65DA, 70NAC, 70NAD, 70NAE, 70NAF, 70NBA, 70NDB, 70NEB, 70NEC, 70NFB, 70NEC
Federal Magistrates Court Rules 2001, Schedule 1

In the Marriage of O’Brien (1992) 15 Fam LR 723
In the Marriage of Stavros (1984) 9 Fam LR 1025
In the Marriage of Stevenson & Hughes (1993) 16 Fam LR 443
TVT & TLM [2006] FMCAfam 20

Applicant:

MR MINH

Respondent:

MS CONG

File Number:

SYC 847 of 2008

Judgment of:

Monahan FM

Hearing date:

10 September 2010

Date of Last Submission:

8 October 2010

Delivered at:

Sydney

Delivered on:

8 October 2010

REPRESENTATION

Counsel for the Applicant:

None

Solicitors for the Applicant:

Mr Schofield

Counsel for the Respondent:

None

Solicitors for the Respondent:

Self Represented Litigant

ORDERS

AND UPON:

(a)the Court being satisfied that the Respondent, MS CONG has committed a contravention of an Order under the Family Law Act 1975 (“the Act”) affecting [X] (“the child”) (being paragraph 5 of the Orders made by this Court, by consent, on 17 June 2009);
(b)the Respondent not having proved that she had a reasonable excuse for the contravention referred to in (a) above;
(c)no Court having jurisdiction under the Act having previously determined that the Respondent has, without reasonable excuse, contravened the Order referred to in (a) above; and
(d)the Court being satisfied that Subdivision E of Division 13A of Part VII of the Act applies to the contravention referred to in (a) above.

THE COURT ORDERS THAT:

Within 21 days pursuant to s.70NEB(1)(a) of the Act the Respondent do as follows:
(a)obtain a recommendation from either Relationships Australia or Unifam regarding her enrolment in a suitable post-separation parenting course (“the Course”);
(b)enrol, attend and complete the Course as recommended in (a) herein at her own expense; and
(c)upon her enrolment advise the Applicant’s solicitors of the details of the Course and subsequently provide to them evidence of the successful completion of the Course.
Pursuant to s.70NEB(1)(f) of the Act the Respondent pay the Applicant’s costs in these proceedings fixed in the sum of $2,505.00.
Compliance with paragraph two (2) herein is stayed until 3 December 2010.
The Respondent make, file and serve a financial statement by 4:00pm on 26 November 2010.
Pursuant to s.70NEB(1)(b) of the Act, paragraph five (5) of the Orders made by this Court, by consent, on 17 June 2009 is amended for all school term periods in 2011 only to read as follows:
“5.11 During school terms:
a) From 6:00pm on the first Wednesday of each school term and each alternate Wednesday until the commencement of school on the following Monday PROVIDED THAT such time will cease at 9:00am on Mother’s Day.”
All extant applications be adjourned to this Court on 3 December 2010 at 10:00am for mention (“the mention hearing”).

AND THE COURT NOTES…

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 Minh and Cong

Details

AGLC: Minh and Cong [2010] FMCAfam 1465
Case: [2010] FMCAfam 1465
Decision Date: 8 October 2010

CaseChat Overview and Summary

The matter of Minh and Cong came before the court to address a contravention of a family law order concerning the care of their child, [X]. The primary issue was whether the Respondent, Ms Cong, had breached a court-ordered parenting arrangement and whether she had a reasonable excuse for doing so. The court found that Ms Cong had contravened the order by failing to adhere to the specified visitation schedule without a reasonable excuse. The Applicant, Minh, sought enforcement of the existing orders and additional penalties for the contravention.

The court meticulously reviewed the evidence presented and the arguments from both parties. It determined that Ms Cong had not provided a reasonable justification for her failure to comply with the visitation order. The court further found that the provisions of the Family Law Act applied to this case, specifically under Subdivision E of Division 13A of Part VII, which pertains to penalties for non-compliance with court orders. Consequently, the court issued several orders to address the contravention and ensure future compliance. These included mandating Ms Cong to complete a post-separation parenting course, pay the Applicant's legal costs, and amend the visitation schedule for the 2011 school term. Additionally, the court scheduled a mention hearing to review compliance with these orders and consider further action if necessary.

The court's decision was clear in enforcing the existing parenting orders and imposing penalties for the contravention. It mandated specific actions to be taken by Ms Cong to address the breach and ensure adherence to the court's directives moving forward. The court also noted the importance of compliance with court orders and the potential imposition of additional penalties if Ms Cong failed to comply with the amended visitation schedule. The matter was adjourned for a mention hearing to ensure that the Respondent complied with the orders made.

Orders

Orders of the court

AND UPON:

(a) the Court being satisfied that the Respondent, MS CONG has committed a contravention of an Order under the Family Law Act 1975 (“the Act”) affecting [X] (“the child”) (being paragraph 5 of the Orders made by this Court, by consent, on 17 June 2009);

(b) the Respondent not having proved that she had a reasonable excuse for the contravention referred to in (a) above;

(c) no Court having jurisdiction under the Act having previously determined that the Respondent has, without reasonable excuse, contravened the Order referred to in (a) above; and

(d) the Court being satisfied that Subdivision E of Division 13A of Part VII of the Act applies to the contravention referred to in (a) above.

THE COURT ORDERS THAT:

Within 21 days pursuant to s.70NEB(1)(a) of the Act the Respondent do as follows:

(a) obtain a recommendation from either Relationships Australia or Unifam regarding her enrolment in a suitable post-separation parenting course (“the Course”);

(b) enrol, attend and complete the Course as recommended in (a) herein at her own expense; and

(c) upon her enrolment advise the Applicant’s solicitors of the details of the Course and subsequently provide to them evidence of the successful completion of the Course.

Pursuant to s.70NEB(1)(f) of the Act the Respondent pay the Applicant’s costs in these proceedings fixed in the sum of $2,505.00.

Compliance with paragraph two (2) herein is stayed until 3 December 2010.

The Respondent make, file and serve a financial statement by 4:00pm on 26 November 2010.

Pursuant to s.70NEB(1)(b) of the Act, paragraph five (5) of the Orders made by this Court, by consent, on 17 June 2009 is amended for all school term periods in 2011 only to read as follows:

“5.11 During school terms:

a) From 6:00pm on the first Wednesday of each school term and each alternate Wednesday until the commencement of school on the following Monday PROVIDED THAT such time will cease at 9:00am on Mother’s Day.”

All extant applications be adjourned to this Court on 3 December 2010 at 10:00am for mention (“the mention hearing”).

AND THE COURT NOTES THAT:

(A) The Course should include a component with regard to the importance of complying with Court orders.

(B) The purpose of the mention hearing is to consider the cost and stay orders made in paragraphs two (2) and three (3) herein and to ensure compliance with the parenting orders, which remain in full force and effect. The Court will also require confirmation from the Respondent that paragraph one (1) herein has been complied with.

(C) In the event that the Respondent has not complied with paragraph five (5) of the Orders made by this Court, by consent, on 17 June 2009 then at the mention hearing the Court may consider the imposition of a Bond pursuant to s.70NEB(1)(d) of the Act in addition to orders made in paragraphs 1, 2 and 5 herein.

(D) Pursuant to ss.65DA(2) and 62B of the Act 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 those particulars are included in these orders.

(E) An interpreter will be required for the Respondent in the Mandarin language at the mention hearing.

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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