SANDER & ABBEY (No.3) - [2020] FCCA 133

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDER & ABBEY (No.3)

[2020] FCCA 133

Catchwords:
FAMILY LAW – Contravention of parenting order – high conflict family – final orders made in August 2018 – further proceedings instituted in October 2018 – principles applicable to alteration of order – parenting orders amended – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.65DAC; 65DAE; 70ABA; 70NAA; 70NAC; 70NAE; 70NAF; 70NBA; 70NCB; Div 13A
Federal Circuit Court Rules 2001 (Cth), r.25B.04

Cases cited:
Attreed & Attreed (1980) FLC 90-907
Davis & Davis (1976) FLC 90-050
Jets & Maker [2010] FamCAFC 55
Kelly & Kobelnek [1998] FamCA 296
Oxley & Inglis [2007] FamCA 1606
Sahari & Sahari (1976) FLC 90-086
Sander & Abbey [2018] FCCA 2295
Sander & Abbey (No.2) [2019] FCCA 1792
Stevenson v Hughes (1993) FLC 92-393
Taikato & R (1996) 186 CLR 454
Vlug v Poulos (1997) FLC 92-778

Applicant:

MR SANDER

Respondent:

MS ABBEY

File Number:

ADC 2749 of 2016

Judgment of:

Judge Brown

Hearing date:

25 October 2019

Date of Last Submission:

25 October 2019

Delivered at:

Adelaide

Delivered on:

12 February 2020

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

In person

Solicitors for the Respondent:

Not Applicable

ORDERS

Pursuant to section 70NEA(2) of the Family Law Act 1975 counts one, six and eight of the contraventions of the parenting orders of this court made on 17 August 2018, as set out in these reasons for judgment, brought by the applicant Mr Sander (hereinafter referred to as “the applicant”) are established against the respondent Ms Abbey (hereinafter referred to as “the respondent) and the Court is satisfied that the respondent did not have a reasonable excuse for each such contravention.
Count two of the contraventions as set out in these reasons for judgment is withdrawn and dismissed.
Counts three, four, five and seven of the contraventions as set out in these reasons for judgment are not established and are each dismissed.
No order is made as to costs in respect of any of the contravention applications in favour of either the applicant or the respondent.
Pursuant to section 70NEC of the Family Law Act 1975 within two days of the making of the orders the respondent enter into a Bond without surety for a period of six (6) months with the condition of the Bond being:-
(a)That she be of good behaviour during the period of the Bond; and
(b)That she comply with all current and future parenting orders of this Court.
Pursuant to section 70NBA of the Family Law Act 1975 Orders (4) and (5) of the orders made on 17 August 2018 are discharged and in lieu thereof the following orders are made:
(4) The father spend time with the children during school holidays periods as follows:
(a) in 2020 in each short school holiday from 9.00 am on the Friday of the middle weekend of each such school holiday period until 9.00 am the following Wednesday;

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 SANDER & ABBEY (No.3)

Details

AGLC: SANDER & ABBEY (No.3) [2020] FCCA 133
Case: [2020] FCCA 133
Decision Date: 12 February 2020

CaseChat Overview and Summary

In this matter before Judge Brown, the applicant, Mr Sander, brought proceedings alleging contraventions of parenting orders made on 17 August 2018 against the respondent, Ms Abbey. The proceedings concerned allegations of contraventions of specific counts within those parenting orders.

The court was required to determine which, if any, of the alleged contraventions of the parenting orders were established against the respondent and whether the respondent had a reasonable excuse for any such contraventions. Additionally, the court needed to consider the principles applicable to the alteration of existing parenting orders in light of the circumstances presented.

The court found that counts one, six, and eight of the contraventions alleged by the applicant were established, and that the respondent did not have a reasonable excuse for these contraventions. Counts two, three, four, five, and seven were either withdrawn, dismissed, or not established. In relation to the contraventions that were established, the court made no order as to costs. Pursuant to section 70NEC of the *Family Law Act 1975*, the respondent was ordered to enter into a bond without surety for six months, requiring her to be of good behaviour and comply with all current and future parenting orders. Furthermore, pursuant to section 70NBA of the *Family Law Act 1975*, orders (4) and (5) of the original parenting orders were discharged and replaced with new orders detailing the father's time with the children during school holidays and school terms, with specific provisions for the years 2020 through 2022 and thereafter. All other contravention applications were dismissed.

Orders

Orders of the court

Pursuant to section 70NEA(2) of the Family Law Act 1975 counts one, six and eight of the contraventions of the parenting orders of this court made on 17 August 2018, as set out in these reasons for judgment, brought by the applicant Mr Sander (hereinafter referred to as “the applicant”) are established against the respondent Ms Abbey (hereinafter referred to as “the respondent) and the Court is satisfied that the respondent did not have a reasonable excuse for each such contravention.

Count two of the contraventions as set out in these reasons for judgment is withdrawn and dismissed.

Counts three, four, five and seven of the contraventions as set out in these reasons for judgment are not established and are each dismissed.

No order is made as to costs in respect of any of the contravention applications in favour of either the applicant or the respondent.

Pursuant to section 70NEC of the Family Law Act 1975 within two days of the making of the orders the respondent enter into a Bond without surety for a period of six (6) months with the condition of the Bond being:-

(a) That she be of good behaviour during the period of the Bond; and

(b) That she comply with all current and future parenting orders of this Court.

Pursuant to section 70NBA of the Family Law Act 1975 Orders (4) and (5) of the orders made on 17 August 2018 are discharged and in lieu thereof the following orders are made:

(4) The father spend time with the children during school holidays periods as follows:

(a) in 2020 in each short school holiday from 9.00 am on the Friday of the middle weekend of each such school holiday period until 9.00 am the following Wednesday;

(b) in the 2020/21 end of school year holiday for alternate periods of five nights from 9.00 am Friday until 9.00 am the following Wednesday commencing with the first weekend of such school holiday period;

(c) in 2021 in each short school holiday period from 9.00 am on the Friday of the middle weekend of each such school holiday period until 9.00 am the following Thursday;

(d) in the 2021/22 end of school year holiday for alternate fortnightly periods of six days from 9.00 am Friday until 9.00 am the following Thursday commencing with the first weekend of such school holiday period;

(e) in 2022 and each year thereafter the children spend equal periods of time with each parent on a week about basis with the weeks to be calculated from 9.00 am Saturday until 9.00 am the following Saturday with the allocation of weeks to be agreed between the parties and failing agreement with the father to have the first week and the mother to have the second week. It being further noted that the orders shall be subject to the provisions for the children spending time with each of the parents on the special occasions specified in order 6 of the orders of 17 August 2018;

(f) for the purpose of interpreting these orders the expression middle weekend means the weekend of each short school holiday period which falls midway between the end of school and its recommencement.

(5) The father spend time with the children during school terms as follows:

(a) On alternate weekends from the conclusion of school Friday (or 6.00 pm if a non-school day) until 6.00 pm the following Sunday (or 6.00 pm Monday in the event that day is a Public Holiday);

(b) On each Wednesday from the conclusion of school at 3.00 pm until the commencement of school the following Thursday;

(c) These orders are to be suspended during each school holiday period which is defined as the period from time school concludes until it recommences;

(d) For the purpose of calculating when the time in order 5(a) recommences following its suspension pursuant to 5(c), it shall be on the first weekend which falls following the end of the school holiday period;

(e) For the purpose of calculating when the holiday time commences following the suspension pursuant to 5(c) hereof it shall be on the first Wednesday which falls following the end of the school term;

(f) For the purpose of interpreting these orders they are to be read so that the father spends at least five weekends as envisaged by order 5(a) hereof during each school term period unless the parties agree otherwise.

All contravention applications be otherwise dismissed.

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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