Savage and Savage - [2017] FamCA 93

FAMILY COURT OF AUSTRALIA

SAVAGE & SAVAGE

[2017] FamCA 93

FAMILY LAW – ORDERS – Contravention – Where allegation that children not made available for time ordered – Where respondent mother asserts reasonable excuse – Where reasonable excuse not established – Where contraventions found proved – Where written submissions to be made as to penalty and costs

Family Law Act 1975 (Cth) ss 4, 70NAE(1), 70NAE(2), 70NAE(5), 70NEA, 70NEB

Childers v Leslie 39 FamLR 379
In the marriage of Gaunt (1978) 4 Fam LR 305 at 308
Mitty v Mitty [2012] FamCA 329
Ongal & Materns [2015] FamCAFC 68
Savage & Savage [2016] FamCA 20
Taikato v R [1996] HCA 28

APPLICANT:

Mr Savage

RESPONDENT:

Ms Savage

FILE NUMBER:

PAC

4122

2015

DATE DELIVERED:

24 February 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 September 2016 and 25 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maurice

SOLICITOR FOR THE APPLICANT:

Matthews Folbigg Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

York Law Family Law Specialists

Orders

That in contravention of orders made 9 October 2015 and on 16 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made 9 October 2015 and on 19 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made 9 October 2015 and on 21 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made 9 October 2015 and on 26 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention of orders made 9 October 2015 and on 14 November 2015 the father did not have contact with the children in accordance with the orders or at all and that the mother without reasonable excuse refused to allow the father to spend time with the children.
That in contravention of orders made on 22 January 2016 and on 2 July 2016 the father did not have contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to spend time with the children.
That in contravention of orders made on 22 January 2016 and on 4 July 2016 the father did not have telephone contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.
That in contravention…

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 Savage and Savage

Details

AGLC: Savage and Savage [2017] FamCA 93
Case: [2017] FamCA 93
Decision Date: 24 February 2017

CaseChat Overview and Summary

This matter came before Foster J concerning alleged contraventions of court orders by both the father and the mother regarding contact with their children. The proceedings involved allegations that the father failed to have telephone contact with the children on specific dates in contravention of orders made on 9 October 2015, and that the mother, without reasonable excuse, refused to allow the father telephone communication with the children on those same dates. Further allegations concerned the father's failure to have contact with the children in accordance with orders made on 22 January 2016 and 2 July 2016, and the mother's refusal to allow the father to spend time with the children on those dates.

The central legal issues before the court were whether the parties had contravened the existing court orders concerning the children's contact arrangements, and if so, what penalty and costs should be imposed. Specifically, the court was required to determine if the father had failed to adhere to the orders regarding telephone contact and general contact, and if the mother had unreasonably refused to facilitate such contact. The court also needed to consider the financial positions of both parties, as evidenced by the requirement for them to file financial statements.

Foster J found that the father had contravened the orders made on 9 October 2015 and 16, 19, 21, and 26 October 2015 by not having telephone contact with the children, and that the mother had contravened the same orders by refusing to allow such contact without reasonable excuse. Furthermore, the court found that the father had contravened orders made on 22 January 2016 and 2 July 2016 by not having contact with the children, and that the mother had contravened those orders by refusing to allow the father to spend time with the children. The court also found contraventions of orders made on 22 January 2016 and 4 and 6 July 2016 concerning telephone contact. The court ordered the father to file submissions on penalty and costs within 21 days, with the mother to file replies within a further 14 days. Both parties were also ordered to file financial statements within 14 days, with judgment on penalty and costs to be reserved to chambers upon receipt of submissions, unless oral submissions were requested.

Orders

Orders of the court

That in contravention of orders made 9 October 2015 and on 16 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.

That in contravention of orders made 9 October 2015 and on 19 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.

That in contravention of orders made 9 October 2015 and on 21 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.

That in contravention of orders made 9 October 2015 and on 26 October 2015 the father did not have telephone contact with the children and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.

That in contravention of orders made 9 October 2015 and on 14 November 2015 the father did not have contact with the children in accordance with the orders or at all and that the mother without reasonable excuse refused to allow the father to spend time with the children.

That in contravention of orders made on 22 January 2016 and on 2 July 2016 the father did not have contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to spend time with the children.

That in contravention of orders made on 22 January 2016 and on 4 July 2016 the father did not have telephone contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.

That in contravention of orders made on 22 January 2016 and on 6 July 2016 the father did not have telephone contact with the children in accordance with the orders and that the mother without reasonable excuse refused to allow the father to have telephone communication with the children.

That within 21 days from this date, the applicant father file and serve written submissions as to penalty and costs.

10.

That within a further 14 days thereafter the respondent mother file and serve written submissions in reply as to penalty and costs.

11.

That both parties file and serve Financial Statements within 14 days.

12.

That upon receipt of submissions and in the absence of a request for the matter to be listed for any supplementary oral submissions, judgment as to penalty and costs reserved to Chambers.

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

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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