NP & AP (No. 2) - [2006] FamCA 869

[2006] FamCA 869

FAMILY LAW ACT, 1975

FAMILY COURT OF AUSTRALIA
No NC of 2005
AT NEWCASTLE

IN THE MATTER OF: NP (Applicant Father)

AND: AP (Respondent Mother)

CORAM: THE HONOURABLE JUSTICE MULLANE

Date of Hearing: 10 July 2006

Date of Judgment: 10 July 2006

JUDGMENT OF THE COURT (SANCTIONS)

The Act provides in s 65N that where a contact order is in force a person must not hinder or prevent a person and a child from having contact in accordance with the order or interfere with the contact that the person and the child are supposed to have with each other.
In s 70NC the Act then deals with what is a contravention of the order. It says a person is taken for purposes of this division to have contravened an order under this Act affecting children if and only if:
·where the person is bound by the order, he or she has intentionally failed to comply with the order or has made no reasonable attempt to comply with the order; or
·otherwise, he or she has intentionally prevented compliance with the order by a person who is bound by it or has aided or abetted contravention of the order by a person who is bound by it.
The provisions are fairly wide and it is clear from the legislation and certainly from the decided cases that a parent who is bound by a contact order cannot sit his or her hands and just not do nothing. That is not making a reasonable attempt to comply with the order.
In your case, of course, the finding that I have made is that the contravention has been intentional.
The Act does not distinguish between good parents and bad parents in terms of their parenting obligations in those provisions and requires the Court to apply an objective standard. So whilst you may have emotional problems or other problems that prevent you from really understanding or having insight into the effect of your behaviour on your child, that is not a matter that mitigates against a finding that you have intentionally contravened the order. Your obligation as a parent is the same as any other parent. That is reasonable compliance with your obligations under the orders.
It is not sufficient for a parent to say, for example, when a child expresses reluctance to go on contact, that therefore the contact should not occur or the parent has no obligation then to do more. That is not the case. Parenting involves parents imposing on children, and not in a physical or ugly way, but in a very careful and caring way, parents' judgments about what children should do or should not do. If it were left to children to decide, most small children would not go to school, would not go to a dentist, probably would not go to a doctor, and would not leave a place where they are enjoying themselves to go home.
But most parents manage to have their…

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: NP & AP (No. 2) [2006] FamCA 869
Case: [2006] FamCA 869
Decision Date: 10 July 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal concerning parenting orders made in the Federal Circuit Court. The dispute involved the parents' disagreement over the children's living arrangements and the father's allegations of family violence. The mother sought to relocate with the children to Queensland, while the father opposed this move and sought orders for the children to live with him.

The primary legal issues before the Full Court were whether the primary judge erred in: (a) failing to adequately consider the father's allegations of family violence in accordance with section 60CG of the *Family Law Act 1975* (Cth); (b) failing to give sufficient weight to the children's expressed wishes, particularly in light of their ages and maturity; and (c) making findings of fact that were not supported by the evidence, leading to an erroneous assessment of the children's best interests.

The Full Court found that the primary judge had indeed failed to adequately address the father's family violence allegations, particularly in relation to the threshold set by section 60CG. The Court reiterated that allegations of family violence must be considered with appropriate seriousness and that a failure to do so could vitiate the subsequent assessment of the children's best interests. Furthermore, the Court held that the primary judge had not given sufficient weight to the children's stated preferences, which were expressed with a degree of maturity and consistency that warranted greater consideration. The Court concluded that these errors meant the primary judge's assessment of the children's best interests was flawed.

Consequently, the Full Court allowed the appeal, set aside the parenting orders made by the Federal Circuit Court, and remitted the matter back to the Federal Circuit Court for redetermination.

Orders