Raider and Raider (No 2) - [2011] FamCA 555

`FAMILY COURT OF AUSTRALIA

RAIDER & RAIDER (NO 2)

[2011] FamCA 555

FAMILY LAW – CONTEMPT – Contravention of Court order – Whether the mother’s contraventions show a serious disregard of her obligations under the primary orders – Whether the provisions of subdivision E of Division 13A of Part 7 apply or whether the provisions of subdivision F of Division 13A of Part 7 apply – Where the latter is to apply if the Court is satisfied that the mother has behaved in a way that showed a serious disregard of her obligations under the primary order – Court considers that the mother be dealt with pursuant to the former provisions.

FAMILY LAW – CONTEMPT – Penalty – What is an appropriate penalty for the mother for contravening Court orders – Order that the mother and father attend a post-separation parenting orders program – Court does not consider it appropriate in the circumstances to impose any other penalty upon the mother.

Family Law Act 1975 (Cth) s 70NEB(1)(a)(ii), s 65LB, s 68L(2), s 62G, s 70NAE, subdivision E of Division 13A of Part 7, subdivision F of Division 13A of Part 7, s 70NEB(1) and s 4

Elspeth & Peter; Mark and Peter and John and Peter [2007] FamCA 655

APPLICANT:

Ms Raider

RESPONDENT:

Mr Raider

FILE NUMBER:

BRC

4124

2008

DATE DELIVERED:

15 July 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

23 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ashcroft

SOLICITOR FOR THE APPLICANT:

JPM Legal

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

That pursuant to the provisions of s 70NEB(1)(a)(ii) the mother and the father shall each separately attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.
Each of the mother and the father shall be personally responsible to access details of such programs through a Family Relationship Centre in their residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program.
Each of the mother and the father shall complete such a post-separation parenting orders program within six (6) months of the date of these orders and provide evidence in writing of the completion of such a program to the other party and also to any Independent Children’s Lawyer appointed in these proceedings.
That further pursuant to the provisions of s 70NEB(1)(a)(ii) the father shall also attend and complete an anger management program to assist him in discharging his parenting responsibilities, such program as is conducted by a s 65LB provider of such programs.
The father shall be personally responsible to access details of such programs through a Family Relationship Centre in his residential proximity and for making contact with a provider of such a program, enrolling in, attending and completing such a program.
The father shall complete such an anger management program within six (6) months of the date of these orders and provide evidence in…

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 Raider and Raider (No 2)

Details

AGLC: Raider and Raider (No 2) [2011] FamCA 555
Case: [2011] FamCA 555
Decision Date: 15 July 2011

CaseChat Overview and Summary

In *Raider and Raider (No 2)*, Forrest J considered allegations of contempt against the mother for contravening court orders. The central dispute revolved around whether the mother's conduct demonstrated a serious disregard for her obligations under the primary orders, which would trigger the application of specific provisions within the Family Law Act 1975 (Cth) concerning contempt.

The court was required to determine the appropriate legal framework for dealing with the mother's alleged contraventions and, consequently, what penalty, if any, should be imposed. Specifically, the court had to decide whether the mother's behaviour warranted treatment under provisions requiring a finding of serious disregard of obligations, or if other provisions were applicable.

Forrest J found that the mother's contraventions did not demonstrate a serious disregard of her obligations under the primary orders. Consequently, the court determined that the mother should be dealt with under the provisions of subdivision E of Division 13A of Part 7 of the Family Law Act 1975 (Cth), rather than subdivision F. The court considered that an appropriate penalty for the mother, in these circumstances, was an order to attend and complete a post-separation parenting orders program. The father was also ordered to attend such a program and an anger management program. The matter was referred for case management until trial ready, with the trial to be listed only after both parties had completed their respective programs.

Orders

Orders of the court

That pursuant to the provisions of s 70NEB(1)(a)(ii) the mother and the father shall each separately attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.

Each of the mother and the father shall be personally responsible to access details of such programs through a Family Relationship Centre in their residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program.

Each of the mother and the father shall complete such a post-separation parenting orders program within six (6) months of the date of these orders and provide evidence in writing of the completion of such a program to the other party and also to any Independent Children’s Lawyer appointed in these proceedings.

That further pursuant to the provisions of s 70NEB(1)(a)(ii) the father shall also attend and complete an anger management program to assist him in discharging his parenting responsibilities, such program as is conducted by a s 65LB provider of such programs.

The father shall be personally responsible to access details of such programs through a Family Relationship Centre in his residential proximity and for making contact with a provider of such a program, enrolling in, attending and completing such a program.

The father shall complete such an anger management program within six (6) months of the date of these orders and provide evidence in writing of the completion of such a program to the other party and also to any Independent Children’s Lawyer appointed in these proceedings.

Orders in the Parenting Proceedings

That pursuant to s 68L(2), the interests of the children, J born … June 1998 and M born … March 2000 be independently represented by a lawyer and it is requested that Legal Aid Queensland make arrangements as soon as practicable to secure that independent representation of the children’s interests.

That forthwith upon appointment by the said Legal Aid Queensland the Independent Children’s Lawyer file a Notice of Address for Service.

That upon filing a Notice of Address for Service, the Independent Children’s Lawyer has leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date and also leave to inspect the Court file in this matter.

10.

Pursuant to s 62G a Family Consultant nominated by the Manager, Child Dispute Services, Brisbane Registry shall, as soon as is practicably possible, prepare a report relating to the care, welfare and development of the children, J born … June 1998 and M born … March 2000 and shall, in particular, report as to any views expressed by the said children, the level of maturity of the children and the soundness of any basis for such views, particularly having regard to the father’s opinion as to the basis for the views reported to have been expressed by the children to date.

11.

The mother and the father and their respective partners must attend all appointments fixed by the Family Consultant and the mother shall ensure that the children attend all appointments as notified by the Family Consultant.

12.

The Family Consultant has leave to inspect the Court file and all documents produced on subpoena to this date or subsequent to this date once permission to inspect has been granted to at least one party or the Independent Children’s Lawyer in this matter.

13.

The matter is referred to a Registrar for case management until it is trial ready after which it shall be referred to a call-over for listing for trial before Justice Forrest but not before the mother and the father have completed the post-separation parenting orders programs and the father has completed the anger management program as ordered.

14.

The parties, including the Independent Children’s Lawyer once appointed, have liberty to apply to the Court for further interim orders or directions as he or she may consider appropriate, particularly after the Family Consultant’s report has been made available.

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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