Rayes & Kistner - [2023] FedCFamC2F 953

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rayes & Kistner [2023] FedCFamC2F 953

File number(s): DGC 466 of 2019

Judgment of: JUDGE DICKSON

Date of judgment: 3 August 2023

Catchwords: FAMILY LAW – CONTRAVENTION – Parenting – two children aged 11 and 8 years – where the mother contravened final orders by preventing time spending with the father – where the father has not seen the children for over 12 months – where the mother submits she has a reasonable excuse for contravening – where the mother alleges that the children are at risk in the father’s care – consideration of whether to adduce a ‘without prejudice’ offer exchanged between the parties – where the mother has been found to have contravened the final orders without a reasonable excuse – cost order made pursuant to Schedule 1 – order made for the mother to enter into a bond.

Legislation:

Family Law Act 1975 (Cth) ss 70NAE, 70NAF, 117

Evidence Act 1995 (Cth) ss 131, 133

Federal Circuit and Family Court of Australia Law (Division 2) (Family Law) Rules 2021, Schedule 1.

Cases cited:
Childers & Leslie [2008] FamCAFC 5

Gaunt & Gaunt [1978] FamCA 97

Hutchings & Clarke [1993] FamCA 22

Jets & Maker [2010] FamCAFC 55

Keehan & Keehan [2019] FamCAFC 250

Mitty & Mitty [2012] FamCA 329

O’Brian & O’Brian [1992] FamCA 52

Rice v Asplund (1979) FLC 90-725

Seaward & MacDuff [2011] FamCA 1041

Taikato & The Queen (1996) 186 CLR 454

Vaughton & Randle (No 2) [2013] FamCA 286

Division: Division 2 Family Law

Number of paragraphs: 109

Date of last submission/s: 9 June 2023

Date of hearing: 14 April 2023, 12 May 2023 and 9 June 2023

Place: Adelaide

Counsel for the Applicant: Mr Dunlop

Solicitor for the Applicant: AFL Kordos Lawyers

Counsel for the Respondent: Ms Chia

Solicitor for the Respondent: Tyler Tipping & Woods
ORDERS

DGC 466 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RAYES

Applicant

AND:
MS KISTNER

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

3 AUGUST 2023

UPON NOTING THAT Count 2 of the father’s Amended Contravention Application filed 11 April 2023 was withdrawn by consent.
AND THE COURT FINDS:
1.In relation to Count 1, that the mother contravened paragraph 2.2 of the final orders made 17 September 2019 without reasonable excuse and prevented the children from spending time with the father for the purposes of the July school holidays commencing 24 June 2022.
2.In relation Count 3, that the mother contravened paragraph 2.1.2 of the final orders made 17 September 2019 without reasonable excuse by withholding and preventing the children from spending school term time with the father commencing 11 July 2022.
3.In relation to Counts 1 and 3, that the mother had no reasonable excuse.
4.In relation to Counts 4 and 5, that there is no prima facie case.

THE COURT ORDERS THAT:
1.Paragraph 2.1 of the final consent order dated 17 September 2019 do resume on the next…

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 Rayes & Kistner

Details

AGLC: Rayes & Kistner [2023] FedCFamC2F 953
Case: [2023] FedCFamC2F 953
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the father, Mr Rayes, brought an application for contravention against the mother, Ms Kistner, in relation to the parenting of their two children. The application included five counts, with the first two being withdrawn by consent. The central issues were whether the mother had a reasonable excuse for preventing the children from spending time with the father during the July school holidays and school term time, and whether the mother had failed to notify the father of any change in her address within 24 hours as required by the final orders. The father argued that the mother had contravened the final orders without reasonable excuse, while the mother maintained that she had a reasonable excuse due to concerns about the children's safety.

The court considered the evidence presented by both parties, including the father's guilty plea to charges of unlawful assault arising from a park incident, and the mother's allegations of further incidents involving the father. The court found that the mother had contravened the final orders without reasonable excuse, as the withdrawal of time was not necessary to protect the health or safety of the children, and the period of non-compliance was excessive. The court also dismissed counts 4 and 5, as the mother did not provide any evidence to support her defence.

In conclusion, the court found the mother in breach of the final orders and ordered her to enter into a bond to comply with all court orders for a period of 12 months, with a modest surety of $500. The court also ordered that the father's time with the children resume on the next available weekend and restrained the mother from attending at the children's school during pick-up times. The court ordered the mother to pay the father's costs of and incidental to the contravention application, with payment to be stayed pending the resolution of the mother's initiating application for property settlement.

Orders