Rhodes & Bass - [2025] FedCFamC2F 27

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rhodes & Bass [2025] FedCFamC2F 27

File number(s): WOC 1574 of 2020

Judgment of: JUDGE CARTY

Date of judgment: 21 January 2025

Catchwords: FAMILY LAW – CONTRAVENTION – Where the applicant father alleges that the respondent mother has contravened final parenting orders on five occasions between 2 February 2024 and 28 March 2024 by failing to provide the two children to spend time with him for the weekend as required – Where the respondent admits contravening the orders but contends that she has a reasonable excuse for the contraventions – Where the respondent has regularly personally supervised time for the children with the applicant throughout the period of the contravention – Whether the respondent believed on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect the health or safety of the children – Where the court is satisfied that the respondent did believe on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect their health and safety – Where the court is satisfied that the period during which the children and the applicant did not spend time together because of the contravention was not longer than necessary to protect the health and safety of the children – Where all Counts in the application for contravention are dismissed – VARIATION OF FINAL ORDERS – Whether the primary orders should be varied pursuant to s70NBA of the Act – Where both parents seek variation – Where it is found to be in the best interests of the children to suspend final orders which require the children to spend time with the applicant unsupervised – Where it is in the best interests of the children to make an order until further order that the time that the children spend with the applicant is supervised by a children’s contact service – Where the parents agree that it is in the children’s best interests to communicate with the applicant using a Messaging app – Where the respondent’s agreement is subject to the proviso that use of the Messaging app will not reveal the children’s location to the applicant – Where there is no evidence before the court about how the Messaging app operates – Order made for the children to communicate with the applicant using the Messaging app subject to the proviso sought by the respondent – Where the respondent is directed to file and serve an Initiating Application and her supporting documents by no later than 4.00 pm on 18 February 2025.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CF, 70NAC, 70NAE, 70NAF, 70NBA, 70 NEB, Part VII, Div 13A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.69.

Cases cited: Hatfield & Rivas [2024] FedCFamC1A 202

Division: Division 2 Family Law

Number of paragraphs: 78

Date of last submission/s: 19 September 2024

Date of hearing: 19 September 2024

Place: Newcastle

Counsel…

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 Rhodes & Bass

Details

AGLC: Rhodes & Bass [2025] FedCFamC2F 27
Case: [2025] FedCFamC2F 27
Decision Date: 21 January 2025

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by Mr Rhodes, the father, who alleged that Ms Bass, the mother, had contravened final parenting orders by failing to provide their two children for time with him on five occasions between February 2 and March 28, 2024. Ms Bass admitted to the contraventions but argued she had a reasonable excuse due to concerns for the health and safety of the children. The court needed to determine whether Ms Bass's belief that not allowing unsupervised time with the father was necessary to protect the children was reasonable and whether the period of non-compliance was no longer than necessary. Additionally, the court needed to consider whether the final parenting orders should be varied to include supervised contact between the children and the father.

The court found that Ms Bass held a reasonable belief that unsupervised time with the father was necessary to protect the health and safety of the children. It was also satisfied that the period during which the children did not spend time with the father was not longer than necessary. Consequently, all counts of the contravention application were dismissed. Regarding the variation of the final orders, the court found it to be in the best interests of the children to suspend the final orders that required the children to spend time with the father unsupervised. Instead, the court ordered that the children’s time with the father be supervised by a children’s contact service. The court accepted the parents' agreement that the children should communicate with the father using a Messaging app, subject to the condition that the app would not reveal the children's location. The court directed Ms Bass to file and serve an Initiating Application and supporting documents by a specified date.

The court issued orders dismissing the contravention application and directing the suspension of certain final parenting orders. It mandated supervised contact between the children and the father at a children’s contact service, with each parent required to attend assessments and comply with the service’s rules and fees. The court also permitted the use of a Messaging app for communication between the children and the father, subject to the respondent’s conditions. Ms Bass was directed to file and serve an Initiating Application by a specified date.

Orders

Orders of the court

WOC 1574 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR RHODES

Applicant

AND:

MS BASS

Respondent

ORDER MADE BY:

JUDGE CARTY

DATE OF ORDER:

21 JANUARY 2025

THE COURT ORDERS THAT:

1. Counts 1 and 2 contained in the Application-Contravention filed on 16 April 2024 are withdrawn and dismissed.

2. Counts 3, 4, 5, 6 and 7 contained in the Application-Contravention filed on 16 April 2024 are dismissed.

3. The respondent shall file and serve an Initiating Application, Notice of Risk and Affidavit setting out the evidence in support of the final and interim orders she seeks by 4.00 pm on 18 February 2025.

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

4. Orders 4, 6, 7, 9, of the Orders made on 21 September 2022 are suspended.

5. The respondent must within 14 days of these Orders nominate in writing to the solicitors for the applicant a Children’s Contact Centre operated by B Contact Centre or by C Contact Centre or similar (“the Children’s Contact Centre”) which can provide supervised time for the children with the applicant on a fortnightly basis.

6. Each parent must:

(a) contact the Children’s Contact Centre within 7 days of the respondent’s written nomination and arrange an appointment for assessment for suitability for supervision of the time the children spend with the applicant father;

(b) attend the assessment;

(c) comply with any appointments made by the Children’s Contact Centre for supervised time for the children with the applicant father;

(d) comply with all reasonable rules of the Children’s Contact Centre; and

(e) comply with all reasonable requests or directions of the staff of the Children’s Contact Centre.

7. If after the assessment referred to in Order 6 (b) hereto the parents are accepted by the Children’s Contact Centre as suitable for supervised time, the children X born in 2016 and Y born in 2019 will spend time with the applicant father each fortnight for a period of up to two hours, at times nominated by the Children’s Contact Centre and such time is to occur at the Children’s Contact Centre and must be supervised by a staff member of the Children’s Contact Centre.

8. The respondent mother must deliver the children to and collect the children from the Children’s Contact Centre at the times specified by the Children’s Contact Centre and on each occasion promptly leave the building and the vicinity.

9. If the Children’s Contact Centre offers supervised time only at times which are less regular than specified in order 7 hereto then contact will occur at the times that are offered by the Contact Centre.

10. Each parent must pay the reasonable fees charged to him or her by the Children’s Contact Centre for each occasion of supervision.

11. The applicant father must not attend the Children’s Contact Centre or its’ vicinity before the supervised time with the children is to start and he must promptly leave the Children’s Contact Centre and its’ vicinity when the time with the children is to end.

12. If after the assessment intake procedure, the Children’s Contact Centre is unable or unwilling to provide supervised time as set out in order 7 hereto then each parent has leave to apply to restore the matter to the list on 7 days written notice to the other parent.

13. The Children’s Contact Centre may recommend the parents or either of them to participate in a program or programs, and in that event either parent may apply to re-list the matter for mention before the court on 7 days’ notice.

14. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parents a variation of these orders, then either parent may on 7 days written notice to the other parent apply to restore the matter to the list.

15. If during the currency of these orders the parents agree in writing to vary these orders the parents have leave to jointly approach the chambers of Judge Carty for consent orders to be made.

16. The period of contact provided in these orders may vary by reason of the closure of the Children’s Contact Centre services during school and public holiday periods, and in such event, contact will occur at times when the services can be provided by the Children’s Contact Centre.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	WOC 1574 of 2020
Judgment of:	JUDGE CARTY
Date of judgment:	21 January 2025
Catchwords:	FAMILY LAW – CONTRAVENTION – Where the applicant father alleges that the respondent mother has contravened final parenting orders on five occasions between 2 February 2024 and 28 March 2024 by failing to provide the two children to spend time with him for the weekend as required – Where the respondent admits contravening the orders but contends that she has a reasonable excuse for the contraventions – Where the respondent has regularly personally supervised time for the children with the applicant throughout the period of the contravention – Whether the respondent believed on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect the health or safety of the children – Where the court is satisfied that the respondent did believe on reasonable grounds that not allowing the children to spend time with the applicant unsupervised was necessary to protect their health and safety – Where the court is satisfied that the period during which the children and the applicant did not spend time together because of the contravention was not longer than necessary to protect the health and safety of the children – Where all Counts in the application for contravention are dismissed – VARIATION OF FINAL ORDERS – Whether the primary orders should be varied pursuant to s70NBA of the Act – Where both parents seek variation – Where it is found to be in the best interests of the children to suspend final orders which require the children to spend time with the applicant unsupervised – Where it is in the best interests of the children to make an order until further order that the time that the children spend with the applicant is supervised by a children’s contact service – Where the parents agree that it is in the children’s best interests to communicate with the applicant using a Messaging app – Where the respondent’s agreement is subject to the proviso that use of the Messaging app will not reveal the children’s location to the applicant – Where there is no evidence before the court about how the Messaging app operates – Order made for the children to communicate with the applicant using the Messaging app subject to the proviso sought by the respondent – Where the respondent is directed to file and serve an Initiating Application and her supporting documents by no later than 4.00 pm on 18 February 2025.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CF, 70NAC, 70NAE, 70NAF, 70NBA, 70 NEB, Part VII, Div 13A Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.69.
Cases cited:	Hatfield & Rivas [2024] FedCFamC1A 202
Division:	Division 2 Family Law
Number of paragraphs:	78
Date of last submission/s:	19 September 2024
Date of hearing:	19 September 2024
Place:	Newcastle
Counsel…