SHADDOCK & WREN - [2014] FamCA 88

FAMILY COURT OF AUSTRALIA

SHADDOCK & WREN	[2014] FamCA 88
FAMILY LAW – ORDERS – CONTRAVENTION – Children – Where the father alleges that the mother contravened parenting orders – Whether the mother has a reasonable excuse. FAMILY LAW – COSTS – Where the mother has made an application for costs – Where the application includes costs reserved to the trial judge – Where the parties subsequently made substantive consent orders – Where those orders were silent as to costs.

Family Law Act 1975 (Cth) ss 64B(2)(i), 65NA, 70NAC, 70NAD, 70NAE, 70NAF, 70NEB, 70NFE, 117(2A), Family Law Rules 2005 (Cth) r 19.08.
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248. D & D (Costs) (No 2) (2010) FLC 93-435. D & D (Costs) [2010] FamCAFC 63. Kohan & Kohan (1993) 16 Fam LR 245. Lenova v Lenova (Costs) [2011] FamCAFC 141. Limousin & Limousin (Costs) (2008) 38 Fam LR 478. Penfold v Penfold (1980) 144 CLR 311.

APPLICANT:

Mr Shaddock

RESPONDENT:

Ms Wren

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

BRC

11407

2008

DATE DELIVERED:

21 February 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

22 October 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ehlers of Counsel

SOLICITOR FOR THE RESPONDENT:

Richard Gray & Associates

it is ordered that

The Application for Contravention filed 12 July 2013 is dismissed.
The Respondent’s Application that the Applicant pay her costs of and incidental to the Amended Initiating Application filed 23 October 2012 is dismissed.
The Applicant, Mr Shaddock, pay the Respondent’s costs of and incidental to the Application in a Case filed on 4 February 2013 fixed in the amount of $1,530.20.
The Applicant, Mr Shaddock, pay the amount of $1,530.20 referred to in (3) above to the Respondent by 4.00 pm on 21 April 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shaddock & Wren has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC 11407 of 2008

Mr Shaddock

Applicant

And

Ms Wren

Respondent

REASONS FOR JUDGMENT

Contravention Application

On 12 July 2013 the father filed an Application for Contravention alleging two (2) contraventions of the Further Amended Order made in the Federal Magistrates Court (as it was then known) on 15 December 2011 (“the December 2011 Order”):
(a)in contravention of Clause 5, the mother, without reasonable excuse, failed to make the children [K], born … July 1997, and [C], born … January 1999, (“the children”) available to spend time with him on the weekend commencing 7 June 2013; and
(b)in contravention of Clauses 6 and 7, the mother, without reasonable excuse, failed to make the children available to spend time with him (during the school holiday period) commencing on 3 July 2013.
It is accepted that the children did not spend time with the father on these occasions.

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.

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Details

AGLC: SHADDOCK & WREN [2014] FamCA 88
Case: [2014] FamCA 88
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Shaddock (the father) filed an Application for Contravention against Ms Wren (the mother), alleging she contravened parenting orders made on 15 December 2011 by failing to make the children available for time with him on the weekend commencing 7 June 2013 and during the school holidays commencing 3 July 2013. The mother also filed an application for costs.

The court was required to determine whether the mother had contravened the parenting orders and, if so, whether she had a reasonable excuse for such contravention. Additionally, the court needed to consider the mother's application for costs, particularly in light of subsequent consent orders made on 18 July 2013 that were silent on the issue of costs.

Regarding the contravention alleged for 7 June 2013, the court accepted the mother's evidence that she had a reasonable excuse. This was based on the children's prior communications with the father indicating their unavailability due to the elder child's work commitments and the younger child's desire to attend a birthday party, coupled with the father's potential unavailability the following weekend. The court found that the mother reasonably believed the father had agreed to alternative arrangements. However, for the contravention alleged for 3 July 2013, the court found no evidence that the parties had agreed to depart from the clear terms of the December 2011 Order regarding the calculation of the midpoint of the school holidays, and therefore did not accept the mother's admission of contravention for this date.

The father's Application for Contravention was dismissed. The mother's application for costs was also dismissed. However, the father was ordered to pay the mother's costs of and incidental to a specific application filed on 4 February 2013, fixed at $1,530.20, to be paid by 21 April 2014.

Orders