Rossini & Koopman - [2024] FedCFamC2F 901

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rossini & Koopman [2024] FedCFamC2F 901

File number(s): MLC 10048 of 2022

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 4 July 2024

Catchwords: FAMILY LAW – Contravention – Parenting – Where father alleges mother failed to comply with orders allowing father to spend time with children – Where father alleges mother failed to comply with orders not to communicate through children – Where father alleges mother failed to comply with “live with” orders – Differences between “old” and “new” Division 13A – Parents to use their parental authority to ensure that the orders are complied with – “Live with” orders not a mandatory injunction or obligation on the Mother to actually keep the children in her care at all times – Two contraventions established – Mother ordered to enter into bond.

Legislation:
Acts Interpretation Act 1901 (Cth), s 7

Family Law Act 1975 (Cth) Division 13A, ss 70NAA, 70NAB, 70NAC, 70NAE, 70NBF, 70NCA, 70NEA, 70NEB, 70NEC, 70NFE

Family Law Amendment Act 2023 (No. 87, 2023)

Cases cited:
Atkins and Milburn [2013] FCCA 2202

Bale-Sutch & Bale-Sutch (No 2) [2007] FamCA 590

Stephens v R (2022) 273 CLR 635; (2022) 404 ALR 367; (2022) 96 ALJR 871; [2022] HCA 31

Division: Division 2 Family Law

Number of paragraphs: 75

Date of last submission/s: 4 July 2024

Date of hearing: 23 May 2024

Place: Melbourne

Counsel for the Applicant: Mr Gates

Solicitor for the Applicant: Bentleys Barristers and Solicitors

Counsel for the Respondent: Mr Harvey

Solicitor for the Respondent: DSA Law - Lawyers & Consultants
ORDERS

MLC 10048 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ROSSINI

Applicant

AND:
MS KOOPMAN

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

4 JULY 2024

THE COURT DECLARES THAT:
1.MS KOOPMAN (‘the Mother’) contravened a child-related order of the court made on 4 August 2023 without reasonable excuse when on 26 August 2023 she made no reasonable attempt to comply with the order for MR ROSSINI (‘the Father’) to spend time with X (‘X’) born 2014 and Y (‘Y’) born 2017 (‘the children’).
2.The Mother contravened a child-related order of the court made on 4 August 2023 without reasonable excuse when she contravened the order that the parents were not to communicate about parenting matters through the children, or either of them, on 17 September 2023.

THE COURT ORDERS THAT:
3.The Mother, MS KOOPMAN, do all acts and things to enter into a bond pursuant to ss.70NEB and 70NEC (as the Family Law Act 1975 (Cth) (‘the Act’) provided prior to 6 May 2024) for 2 years from this day, that is until and including 4 July 2026, without security or surety, pursuant to which she shall undertake to comply with all parenting orders applicable to her made by the Court.
4.Pursuant to order 3 herein, by 4.00 pm on Thursday 11 July 2024, the Mother attend upon a Registrar of the Melbourne Registry of…

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 Rossini & Koopman

Details

AGLC: Rossini & Koopman [2024] FedCFamC2F 901
Case: [2024] FedCFamC2F 901
Decision Date: 4 July 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Rossini applied for contravention orders against Ms Koopman, alleging she failed to comply with several child-related orders concerning their children, X and Y. The primary contention was that Ms Koopman did not facilitate Mr Rossini's time with the children and violated communication orders through the children. Furthermore, Mr Rossini claimed Ms Koopman did not comply with “live with” orders. The court was required to determine whether Ms Koopman contravened the specific parenting orders and, if so, what consequences should follow from such contraventions.

The court examined the evidence and found that Ms Koopman did not make a reasonable attempt to comply with the order allowing Mr Rossini to spend time with the children on 26 August 2023, and she contravened the communication order on 17 September 2023. The court held that “live with” orders were not mandatory injunctions but rather required the parent to use their parental authority to ensure compliance. The court determined two contraventions were established. The court ordered Ms Koopman to enter into a bond to comply with future parenting orders. The court also amended certain orders to clarify the timing of the children's time with Mr Rossini and directed the parties to use the AppClose communication app to facilitate changeovers.

The final orders include declarations of contravention, a requirement for Ms Koopman to enter a compliance bond, amendments to certain orders regarding the children’s time with Mr Rossini, and directives for the parties to communicate via AppClose. The court noted that Ms Koopman understood the implications of the bond and its conditions. The court also noted that the standard bond form had been updated to reflect recent legislative amendments.

Orders

Orders of the court

MLC 10048 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ROSSINI

Applicant

AND:

MS KOOPMAN

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

4 JULY 2024

THE COURT DECLARES THAT:

1. MS KOOPMAN (‘the Mother’) contravened a child-related order of the court made on 4 August 2023 without reasonable excuse when on 26 August 2023 she made no reasonable attempt to comply with the order for MR ROSSINI (‘the Father’) to spend time with X (‘X’) born 2014 and Y (‘Y’) born 2017 (‘the children’).

2. The Mother contravened a child-related order of the court made on 4 August 2023 without reasonable excuse when she contravened the order that the parents were not to communicate about parenting matters through the children, or either of them, on 17 September 2023.

THE COURT ORDERS THAT:

3. The Mother, MS KOOPMAN, do all acts and things to enter into a bond pursuant to ss.70NEB and 70NEC (as the Family Law Act 1975 (Cth) (‘the Act’) provided prior to 6 May 2024) for 2 years from this day, that is until and including 4 July 2026, without security or surety, pursuant to which she shall undertake to comply with all parenting orders applicable to her made by the Court.

4. Pursuant to order 3 herein, by 4.00 pm on Thursday 11 July 2024, the Mother attend upon a Registrar of the Melbourne Registry of the Federal Circuit and Family Court of Australia to enter into the bond.

5. Orders 2(b)(i) and 2(c)(i) of the Orders of 4 August 2023 be and are hereby amended to read ‘…commencing from the conclusion of school on the last day of [Y’s] school term…’, removing the reference to the last day of the Victorian Gazette School Holidays.

6. For the purpose of the coming school holidays (notwithstanding that X has already spent time with his Father during his school holidays), both children are to move into the care of the Father for the period specified by the 4 August 2023 Orders (7 consecutive days), with changeover to occur:

(a) for the commencement of time:

(i) at 3.30 pm on Friday 5 July 2024 at Y’s school (as requested by the Mother); and

(b) for the completion of time:

(i) at 4.00 pm on Friday 12 July 2024 at the contact centre, if it is available; or

(ii) if the contact centre is unavailable for 4.00 pm, any other such time on Friday 12 July 2024 that the contact centre can facilitate; or

(iii) in the event that the contact centre is unavailable on Friday 12 July 2024, changeover is to occur at Suburb C Police Station.

7. The parties are to communicate via the ‘AppClose’ communication app to facilitate those arrangements.

8. The parties do all things to cause a copy of the orders of 4 August 2023, a copy of these orders, and the reasons delivered this day (when written form is available) to the contact centre that facilitates the non-school changeovers pursuant to order 4(b) of the Orders of 4 August 2023.

AND THE COURT NOTES THAT:

A. Before making these orders the Court explained to the Mother in language that was readily understood by her, and she took legal advice about:

(a) the purpose and effect of the bond and the conditions of the bond; and

(b) the consequences that may follow if the Mother fails to enter into the bond or having entered into the bond, fails to act in accordance with the bond;

and the Mother acknowledged that she understood the purpose and effect and the conditions of the bond and the consequences if she failed to enter the bond or failed to act in accordance with the bond.

B. The standard bond form available via the Court website has been updated to include the sections of the Act following the amendments of 6 May 2024, thus the form provided to the Mother has been amended by Judge O’Shannessy.

C. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

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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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File number(s):	MLC 10048 of 2022
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	4 July 2024
Catchwords:	FAMILY LAW – Contravention – Parenting – Where father alleges mother failed to comply with orders allowing father to spend time with children – Where father alleges mother failed to comply with orders not to communicate through children – Where father alleges mother failed to comply with “live with” orders – Differences between “old” and “new” Division 13A – Parents to use their parental authority to ensure that the orders are complied with – “Live with” orders not a mandatory injunction or obligation on the Mother to actually keep the children in her care at all times – Two contraventions established – Mother ordered to enter into bond.
Legislation:	Acts Interpretation Act 1901 (Cth), s 7 Family Law Act 1975 (Cth) Division 13A, ss 70NAA, 70NAB, 70NAC, 70NAE, 70NBF, 70NCA, 70NEA, 70NEB, 70NEC, 70NFE Family Law Amendment Act 2023 (No. 87, 2023)
Cases cited:	Atkins and Milburn [2013] FCCA 2202 Bale-Sutch & Bale-Sutch (No 2) [2007] FamCA 590 Stephens v R (2022) 273 CLR 635; (2022) 404 ALR 367; (2022) 96 ALJR 871; [2022] HCA 31
Division:	Division 2 Family Law
Number of paragraphs:	75
Date of last submission/s:	4 July 2024
Date of hearing:	23 May 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Gates
Solicitor for the Applicant:	Bentleys Barristers and Solicitors
Counsel for the Respondent:	Mr Harvey
Solicitor for the Respondent:	DSA Law - Lawyers & Consultants

MLC 10048 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ROSSINI Applicant
AND:	MS KOOPMAN Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	4 JULY 2024