Plunkett and Perkins - [2016] FCCA 1340

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLUNKETT & PERKINS

[2016] FCCA 1340

Catchwords:
FAMILY LAW – Parenting Orders – contravention application – where contravention found without reasonable excuse at a time when Mother already subject to a s.70NEC bond to comply with Orders – consideration of appropriate penalty.

Legislation:

Family Law Act 1975, ss.65M, 65N, 65NA, 65P, 68B, 68C, 70NAC, 70NAD, 70NBA, 70NEC, 70NECA, 70NFA, 70NFB, 70NFD 70NFE, 70NFG

Federal Circuit Court Rules 2001, r. 16.05

Cases cited:

McClintock v Levier [2009] 233 FLR 179

Applicant:

MR PLUNKETT

Respondent:

MS PERKINS

File Number:

WOC 94 of 2013

Judgment of:

Judge Altobelli

Hearing date:

6 May 2016

Date of Last Submission:

6 May 2016

Delivered at:

Wollongong

Delivered on:

14 July 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Ms Humphreys

Solicitors for the Respondent:

Sward Law

ORDERS

Pursuant to section 70NFE of the Family Law Act 1975 (Cth) the Respondent Mother is to enter into a further bond for a period of two (2) years from the date of this Order, without surety or security and on the condition that she comply with all parenting Orders and otherwise be of good behaviour.
Pursuant to section 70NFB(2)(g) the Respondent Mother pay to the Applicant Father the sum of $1500.00 within six (6) months of the date of this Order.
Pursuant to section 70NFB(7) the Respondent Mother is to enrol in and complete a Parenting Orders Program (or equivalent, the purpose of which is to educate a parent about the necessity and benefits of compliance with Parenting Orders) within six (6) months of the date of this Order.
Pursuant to section 70NFB(2)(c), the Mother shall provide compensatory time to the Respondent Father with the children for one period not exceeding one week, provided such time is taken during school holidays, and provided the Father gives not less than two (2) calendar months’ notice of the date of commencement of his compensatory time with the children pursuant to this Order.
Order 5.1of Orders dated 29 November 2013 be further varied as follows:
5.1 During school terms (with the exception of the weekend containing Mother’s Day) from the conclusion of school on Friday (or 3.00pm if the children do not attend school that day) until the commencement of school on Monday (or 9.00am if the children do not attend school that day) in each alternate week calculated from the first weekend of each school term.
The parties shall do all things and sign all documents necessary to cause a passport to issue, including but not limited to each party bearing half the associated costs.
The passports referred to in Order 6 above are to remain in the Father’s care and control when not used for overseas travel.
The Father shall give the Mother the children’s passports upon notice that the Mother plans to travel with the children or either of them. Immediately upon the children’s return from travel with the Mother, the Mother shall give the passports back to the Father.

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 Plunkett and Perkins

Details

AGLC: Plunkett and Perkins [2016] FCCA 1340
Case: [2016] FCCA 1340
Decision Date: 14 July 2016

CaseChat Overview and Summary

In the matter of *Plunkett and Perkins*, heard by Judge Altobelli, the dispute concerned parenting orders and the compliance of the Respondent Mother with previous court directions. The Applicant Father sought various orders relating to the children's welfare and the Mother's conduct.

The court was required to determine the appropriate sanctions and remedial orders to be made against the Respondent Mother for her non-compliance with existing parenting orders. This included considering the imposition of a bond, financial penalties, mandatory educational programs, and compensatory time for the Father. Additionally, the court addressed arrangements for the children's passports and future travel.

Judge Altobelli applied sections 70NFE, 70NFB(2)(g), 70NFB(7), and 70NFB(2)(c) of the *Family Law Act 1975* (Cth). The court reasoned that a bond was necessary to ensure the Mother's future compliance with parenting orders, requiring her to be of good behaviour for two years. A financial penalty was imposed to reflect the seriousness of the non-compliance, and the Mother was ordered to complete a parenting program to educate her on the importance of adhering to court orders. Compensatory time was also ordered to address the impact of the non-compliance on the Father's time with the children. The court also varied existing orders regarding the children's passports, placing them in the Father's care and control, with specific provisions for their release and return during overseas travel, and requiring the provision of travel itineraries.

The court made orders for the Respondent Mother to enter into a two-year bond without surety, pay $1500 to the Applicant Father within six months, and complete a parenting program within six months. Further, the Mother was ordered to provide compensatory time to the Father with the children, not exceeding one week during school holidays, with specific notice requirements. Existing orders regarding the children's passports were varied to place them in the Father's care, with detailed provisions for their use and return, and both parties were ordered to provide travel itineraries.

Orders

Orders of the court

Pursuant to section 70NFE of the Family Law Act 1975 (Cth) the Respondent Mother is to enter into a further bond for a period of two (2) years from the date of this Order, without surety or security and on the condition that she comply with all parenting Orders and otherwise be of good behaviour.

Pursuant to section 70NFB(2)(g) the Respondent Mother pay to the Applicant Father the sum of $1500.00 within six (6) months of the date of this Order.

Pursuant to section 70NFB(7) the Respondent Mother is to enrol in and complete a Parenting Orders Program (or equivalent, the purpose of which is to educate a parent about the necessity and benefits of compliance with Parenting Orders) within six (6) months of the date of this Order.

Pursuant to section 70NFB(2)(c), the Mother shall provide compensatory time to the Respondent Father with the children for one period not exceeding one week, provided such time is taken during school holidays, and provided the Father gives not less than two (2) calendar months’ notice of the date of commencement of his compensatory time with the children pursuant to this Order.

Order 5.1of Orders dated 29 November 2013 be further varied as follows:

5.1 During school terms (with the exception of the weekend containing Mother’s Day) from the conclusion of school on Friday (or 3.00pm if the children do not attend school that day) until the commencement of school on Monday (or 9.00am if the children do not attend school that day) in each alternate week calculated from the first weekend of each school term.

The parties shall do all things and sign all documents necessary to cause a passport to issue, including but not limited to each party bearing half the associated costs.

The passports referred to in Order 6 above are to remain in the Father’s care and control when not used for overseas travel.

The Father shall give the Mother the children’s passports upon notice that the Mother plans to travel with the children or either of them. Immediately upon the children’s return from travel with the Mother, the Mother shall give the passports back to the Father.

The Mother and Father to provide to the other party a full itinerary relating to domestic or overseas travel including details of air travel, accommodation and contact details for the parent who is travelling with the child/ren and the child/ren as soon as is practicable before departure.

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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