O & M - [2006] FMCAfam 297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

O & M

[2006] FMCAfam 297

FAMILY LAW – Contravention of contact order – whether mother had a reasonable excuse for the contravention – reasonable excuse not established –penalty imposed.

Evidence Act 1995, s.140
Family Law Act 1975, ss.70NC, 70NE(a)

Attorney‑General v Times Newspapers (1992) 1 AC 191
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313
Gaunt, In the marriage of (1978) FLC ¶90‑468; (1978) 4 FamLR 305; (1978) 33 FLR 148
Kelly v Kobelnek [1998] FamCA 296 (unrep)
O'Brien (1993) FLC 92‑396
Northern Territory of Australia v GPAO [1999] HCA 8
Re Whitten (1887) 4 TLR 36
Reilly v Reilly (1995) FLC 92‑616
Stavros (1984) FLC 91-562
Stevenson & Hughes (1993) FLC 92-363
Taikato v The Queen [1996] HCA 28
TVT & TLM [2006] FMCAfam 20

Applicant:

Respondent:

File number:

MLM 3452 of 2006

Judgment of:

Riethmuller FM

Hearing date:

19 May 2006

Date of last submission:

19 May 2006

Delivered at:

Ballarat

Delivered on:

19 May 2006

REPRESENTATION

Solicitor for the Applicant:

Mr Jackson

Solicitors for the Applicant:

Jackson Sweet

Solicitor for the Respondent:

Ms Lia

Solicitors for the Respondent:

Sarah Lia

FINDINGS

The Court is satisfied that the wife has, without reasonable excuse, contravened Order 3 of the Orders made by Mushin J on 27 November 2003 by failing to consult or discuss schooling arrangements for the child with the father.
The Court is satisfied that the wife has, without reasonable excuse, contravened Order 8(a) of the Orders made by Mushin J on 27 November 2003 by failing to deliver the child at the commencement of contact to the father in Bendigo on the following dates:
(a)11 February 2005;
(b)25 February 2005;
(c)25 March 2005;
(d)26 August 2005;
(e)9 September 2005;
(f)7 December 2005;
(g)2 December 2005;
(h)17 December 2005;
(i)26 December 2005;
(j)13 January 2006;
(k)27 January 2006; and
(l)10 February 2006.

ORDERS

The applicant and respondent do:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program ("the Program") at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the other party’s solicitors.
The respondent pay the applicant’s costs fixed in the sum of $3,065.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ballarat

MLM 3452 of 2006

Applicant

And

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is a contravention application brought by the applicant with respect to 17 alleged contraventions of consent orders entered into between the parties on 27 November 2003. Those consent orders were made by the Honourable Mushin J of the Family Court at a Ballarat sitting on that date. The relevant parts of the consent…

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 O & M

Details

AGLC: O & M [2006] FMCAfam 297
Case: [2006] FMCAfam 297
Decision Date: 19 May 2006

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, O & M was a case brought by the applicant against the respondent in the context of parenting arrangements post separation. The applicant sought orders concerning the care, control, and welfare of the parties' children, specifically requiring the respondent to participate in a post separation parenting program.

The legal issues before the court involved the appropriate measures to facilitate the children's welfare, including the necessity of the respondent completing a parenting program to better understand and engage in co-parenting after separation. The court had to consider whether such a program was warranted and what specific orders should be made regarding its completion and the associated costs.

The court found that the respondent's lack of awareness and understanding regarding co-parenting responsibilities necessitated the completion of a parenting program. It was determined that the Program would be beneficial in helping the respondent understand their role in co-parenting and in promoting the children's best interests. Consequently, the court ordered both parties to attend and complete the Program, with specific instructions regarding enrolment, costs, and certification of completion. Additionally, the court ordered the respondent to pay the applicant's costs associated with the proceedings.

Orders

Orders of the court

The applicant and respondent do:

(a) attend and complete, as soon as practicable, the Parenting Apart post separation parenting program ("the Program") at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;

(b) sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;

(d) provide an appropriate certificate of completion of the Program to the other party’s solicitors.

The respondent pay the applicant’s costs fixed in the sum of $3,065.00.

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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