Randle and Vaughton (No.4) - [2012] FMCAfam 1065

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RANDLE & VAUGHTON (No.4)

[2012] FMCAfam 1065

FAMILY LAW – Contravention – father found to have contravened order – penalty to be imposed – application for costs.

Family Law Act 1975, ss.112AD(2)(c) & 117(2A)(g)
Crimes Act 1914, s.4AA

Applicant:

MS RANDLE

Respondent:

MR VAUGHTON

File Number:

ADC 3046 of 2010

Judgment of:

Lindsay FM

Hearing date:

21 September 2012

Date of Last Submission:

21 September 2012

Delivered at:

Perth in Chambers

Delivered on:

4 October 2012

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr B McQuade

Solicitors for the Respondent:

Adey Lawyers

ORDERS

That in respect of the contravention referred to in paragraph 7 of the Contravention Application filed on the 11 July 2011, the father be fined ten penalty units (or $1,100.00).
That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Randle & Vaughton (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADC 3046 of 2010

MS RANDLE

Applicant

And

MR VAUGHTON

Respondent

REASONS FOR JUDGMENT

On 20 September 2011 I found that the father had contravened my orders of 28 March 2011 in respect of his obligation to contribute one half of the cost of the airfares associated with the travel of the child [X] from Tasmania to Adelaide on a fortnightly basis.
The contravention application was filed on 11 July 2011. It was dealt with as one contravention with three aspects. That is to say, the order was contravened on three separate dates in June and July 2011 but they were treated as a single breach. As I remarked at [10] of my Reasons for Judgment at the time of finding the contravention proven, the contraventions were pleaded as one compendious charge.
I do not propose to set out the detailed factual history of the matter. A parenting order trial was part heard when I was obliged to recues myself from further hearing. My recusal was necessary in my view because of findings I had made in respect of contravention applications the father had brought against the mother and which he continued to prosecute notwithstanding the delays that such a course inevitably occasioned in respect of the parenting dispute.
Paragraph 7 of the orders required him to forthwith reimburse the mother for half of the cost of the child’s travel to Adelaide upon presentation of an account to him, with the mother being obliged to book the airfares to facilitate the time-spent referred to in other paragraphs of those orders.
I was satisfied that the father had not forthwith made the payment in respect of the time-spent that was to occur on the weekend of 11 June 2011, 25 June 2011 and 25 July 2011 and that he had contravened the order without a reasonable excuse.
The order is related to a parenting order but is not itself a parenting order and the matter fell…

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 Randle and Vaughton (No.4)

Details

AGLC: Randle and Vaughton (No.4) [2012] FMCAfam 1065
Case: [2012] FMCAfam 1065
Decision Date

CaseChat Overview and Summary

In the case of Randle and Vaughton (No.4), the Federal Magistrates Court of Australia heard an application by Ms. Randle against Mr. Vaughton concerning a contravention of a court order. The dispute revolved around Mr. Vaughton's failure to contribute to the cost of airfares for their child's fortnightly travel from Tasmania to Adelaide, as mandated by a prior parenting order. The matter came before the court following a contravention application filed by Ms. Randle on 11 July 2011. The Federal Magistrate, Lindsay FM, had previously found Mr. Vaughton in breach of the order on three separate occasions in June and July 2011. The legal issues before the court were to determine the appropriate penalty for the contravention and whether to grant an application for costs by the mother.

The court considered the severity of the contravention and the father's failure to cooperate in implementing the order. Despite the mother's own non-compliance, the court held that the father's failure to meet his obligations added to the stress experienced by the child. Pursuant to the Family Law Act 1975, the court had the authority to impose a fine of up to sixty penalty units. Given the circumstances, the court decided to impose a fine of ten penalty units on Mr. Vaughton. The mother applied for costs, which under the court rules would amount to a substantial sum. However, the court took into account that Mr. Vaughton had previously received a partial indemnity for his costs in a different proceeding, which influenced the decision to not order costs for Ms. Randle.

The final orders of the court were that Mr. Vaughton be fined ten penalty units for the contravention and that there be no order as to costs. The decision reflects the court's consideration of the broader context of the parents' conduct and the interplay between their respective contraventions and cost applications.

Orders