FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Peluso & Karle [2023] FedCFamC1F 87
File number: SYC 1386 of 2015 Judgment of: HENDERSON J Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – CONTRAVENTION – Reasonable excuse – Where final parenting orders were made in August 2020 – Where the father alleges the mother has contravened the final orders on 22 occasions between June 2021 and April 2022 – Where the breaches are in relation to the children spending time with the father, communication, medical notification and injunctions – Where the mother concedes all breaches but pleads reasonable excuse – Consideration of meaning of “reasonable excuse” – Where evidence tendered from police and child protection authorities supported the father’s position that the mother is coaching the children – Finding a genuine but erroneously held view by the mother that the father sexually abuses the children does not support a reasonable excuse – Finding the mother has continued to coax the children in relation to making sexual abuse allegations against the father – Finding the mother is guilty without reasonable excuse in respect of all counts save in respect of breaching Order 30(a) – Penalty – Where the father sought that the mother’s contraventions be dealt with as “more serious” contraventions – Consideration of “more serious contravention” – Consideration of “serious disregard” – Finding the contraventions are more appropriately dealt with under Subdivision E of Division 13A – Bond – Where the father sought the mother enter into a bond – Where the mother conceded that if no reasonable excuse was found a bond was appropriate – Consideration of appropriateness of a bond – Order made for the mother to enter into a bond without surety for 24 months on the condition of good behaviour is appropriate to ensure compliance with the orders – Variation – Matter adjourned for consideration of whether the final orders should be varied. Legislation: Family Law Act 1975 (Cth) ss 60B, 70NAE(1), 70NAE(2), 70NAE(5), 70NAE(6), 70NAE(7), 70NAF(1), 70NAF(2), 70NEB(4), 70NEB(5), 70NEC, 70NEC(2), 70NEC(4)(d), 70NFA(1), 70NFA(2)(b), 70NFA(4). Cases cited: Abud & Abud [2010] FamCA 1132.
Ackland & Ackland [2007] FMCAfam 693.
Carrington & Gunby [2020] FamCAFC 117.
Childers & Leslie (2008) FLC 93-356; [2008] FamCAFC 5.
Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214; [2007] FamCA 655.
Fulton & Packer [2015] FamCA 286.
Gaunt and Gaunt (1978) FLC 90-468.
Hugh & Sawer [2010] FamCA 290.
Karle & Peluso [2020] FamCA 633.
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135.
Ongal & Materns (2015) FLC 93-645; [2015] FamCAFC 68.
Sellers & Appleby [2017] FamCA 1142.
Division: Division 1 First Instance Number of paragraphs: 121 Date of hearing: 22 November 2022 Place: Sydney Counsel for the Applicant: Mr Pickering Solicitor for the Applicant: MJ Woods and Co Counsel for the Respondent: Mr Chhabra Solicitor for the Respondent: Solve Legal ORDERS
SYC 1386 of 2015 FEDERAL CIRCUIT AND FAMILY…
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CaseChat Overview and Summary
The court examined the mother's evidence, which included the children's disclosures of sexual abuse and the mother's efforts to report these incidents to authorities. The court also noted the authorities' failure to substantiate the allegations of abuse. The mother argued that her actions were necessary to protect the children's health and safety, and the court had to weigh this against the statutory objectives of the Family Law Act 1975, which aim to provide for the best interests of the children. The court concluded that while the mother's intentions might have been to protect the children, her actions in preventing contact with the father were not justified as a reasonable excuse under the Act.
The court found that the mother's actions constituted a contravention of the court orders and ordered her to enter into a good behaviour bond for 24 months without surety. Additionally, the court ordered the matter to be adjourned to allow for further submissions regarding whether the final orders should be varied. The court's decision emphasized the importance of considering the children's best interests and the statutory objectives of the Family Law Act, while also acknowledging the complexities and sensitivities of child protection issues.
Orders
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Background to the litigation
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Evidence
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Ratio Decidendi
Legal Principle Established
I will make a notation that when the mother attends upon the Registry to enter into the bond, that the Registrar also explain to the mother the purpose of the bond, the requirements of the bond, and the consequences of not entering into the bond or complying with its terms.Other considerations Since the contraventions are dealt with under Subdivision E, I am mandated to consider whether compensation for time should be ordered.[43] I am not satisfied that such an order would be in the best interests of the children, given the children have not spent time with the father since June 2021,[44] and I am adjourning the matter to determine if the final orders be varied.[43] Family Law Act 1975 (Cth) s 70NEB(4).[44] Family Law Act 1975 (Cth) s 70NEB(5).Conclusion I will make an order for the mother to enter into a good behaviour bond, without surety, for a period of 24 months. I will also make an order for the matter to be adjourned to hear submissions as to whether the final orders be varied.CONCLUSION AND ORDERS I make the findings and orders as set out in the forefront of these Reasons for Judgment.