ROCHESTER & ABBOTT - [2009] FMCAfam 1069

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROCHESTER & ABBOTT

[2009] FMCAfam 1069

FAMILY LAW – Contravention application – encouragement of compliance with court orders – defence of acting in interests of child’s health and safety.

Family Law Act 1975, ss.70NAC, 70NAE

Peter & Elspeth (Contravention) [2007] FamCA 96
O’Brien and O’Brien (1993) FLC ¶92-396
Stevenson v Hughes (1993) FLC ¶92-363

Applicant:

MS ROCHESTER

Respondent:

MR ABBOTT

File Number:

MLC 1156 of 2007

Judgment of:

McGuire FM

Hearing date:

9 September 2009

Date of Last Submission:

9 September 2009

Delivered at:

Melbourne

Delivered on:

14 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Marchetti

Solicitors for the Applicant:

Wilkens Roche Pty Ltd

The Respondent:

In person

ORDERS

On the contravention application of the mother filed on 21 August 2009 and upon hearing Mr Marchetti of Counsel for the Applicant and the Respondent appearing in person, and upon:

(a)the Court being satisfied that the Respondent has committed a contravention of an Order under the Family Law Act 1975 affecting children (being a contravention of paragraphs 1 and 2 of the Orders made in the Federal Magistrates Court of Australia at Melbourne on 29 April 2009);
(b)the Respondent not having proved that he had a reasonable excuse for the contravention referred to in (a) above;
(c)no court having jurisdiction under the Family Law Act 1975 having previously made an order in respect of a contravention of the Primary Order; and
(d)the Court being satisfied that Subdivision E of Division 13A of Part VII of the Family Law Act 1975 applies to the contravention referred to in (a) above,

THE COURT ORDERS THAT:

Any order in relation to penalty be made after hearing addresses from counsel for the applicant and the respondent in person as to whether or not this matter should be considered a “serious” breach of the court orders.

IT IS NOTED that publication of this judgment under the pseudonym Rochester & Abbott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 1156 of 2007

MS ROCHESTER

Applicant

And

MR ABBOTT

Respondent

REASONS FOR JUDGMENT

This is a contravention application filed by the mother, Ms Rochester, on 21 August 2009. She supports her application with an affidavit filed the same day. The application alleges 14 separate counts of contravention by the respondent, Mr Abbott, of two separate interim orders made 29 April 2009 and 30 April 2009. Those orders are in respect of two children, namely [X] born [in] 1997 and [Y] born [in] 2002.
The orders of 29 April 2009 provide inter alia that [X] and [Y] live with the father fortnightly between Friday at the completion

of school and Tuesday at the commencement of school and otherwise live with the mother.
The orders of 30 April 2009 provide inter alia that the parties and their servants and agents be restrained from discussing the proceedings and any documents filed in relation to the proceedings with or in the presence or…

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 ROCHESTER & ABBOTT

Details

AGLC: ROCHESTER & ABBOTT [2009] FMCAfam 1069
Case: [2009] FMCAfam 1069
Decision Date: 14 October 2009

CaseChat Overview and Summary

The matter of Rochester & Abbott involved a dispute between the mother and father of a child regarding the contravention of certain court orders. The mother, acting as the applicant, filed an application for contravention on 21 August 2009, asserting that the father had violated the terms of orders made by the Federal Magistrates Court of Australia on 29 April 2009. The father, who appeared in person, was the respondent in this case. The matter was heard by a judge in the relevant family law court.

The primary legal issues before the court were whether the father had indeed contravened the specific paragraphs of the court orders, whether he had a reasonable excuse for any contravention, and whether the contravention warranted a penalty under the Family Law Act 1975. The court had to determine whether the father's actions constituted a serious breach of the court orders, which would affect the potential penalty to be imposed.

In its reasoning, the court found that the father had contravened the orders as alleged by the mother. The court was satisfied that the father had not provided a reasonable excuse for his actions. Additionally, the court determined that no other court had previously made an order in relation to this contravention, and that the provisions of Subdivision E of Division 13A of Part VII of the Family Law Act 1975 applied to the contravention. The court ordered that any penalty related to the contravention would be determined following further submissions from both parties, with a focus on whether the contravention was a serious breach.

Orders

Orders of the court

On the contravention application of the mother filed on 21 August 2009 and upon hearing Mr Marchetti of Counsel for the Applicant and the Respondent appearing in person, and upon:

(a) the Court being satisfied that the Respondent has committed a contravention of an Order under the Family Law Act 1975 affecting children (being a contravention of paragraphs 1 and 2 of the Orders made in the Federal Magistrates Court of Australia at Melbourne on 29 April 2009);

(b) the Respondent not having proved that he had a reasonable excuse for the contravention referred to in (a) above;

(c) no court having jurisdiction under the Family Law Act 1975 having previously made an order in respect of a contravention of the Primary Order; and

(d) the Court being satisfied that Subdivision E of Division 13A of Part VII of the Family Law Act 1975 applies to the contravention referred to in (a) above,

THE COURT ORDERS THAT:

Any order in relation to penalty be made after hearing addresses from counsel for the applicant and the respondent in person as to whether or not this matter should be considered a “serious” breach of the court orders.

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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