Sinagra & Filice - [2022] FedCFamC2F 732

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sinagra & Filice [2022] FedCFamC2F 732

File number(s): ADC 2378 of 2020

Judgment of: JUDGE COPE

Date of judgment: 13 May 2022

Catchwords: FAMILY LAW – Contravention – Ex tempore reasons for judgment – two children aged 10 & 4 years – final consent Orders made on 13 October 2021 – six alleged contraventions – Where breaches concern failures to make the children available for time – Where mother has filed Rice & Asplund application after the father files Contravention Application – finding that the mother contravened the Orders without a reasonable excuse – six breaches fall within the more serious category.

Legislation:
Family Law Act 1975 (Cth) ss 65DA(2), 70NAC, 70NAE, 70NAF, 70NBA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 11.69

Cases cited:
Kelly & Kobelnek (1998) Fam CA296

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Stavros & Stavros (1984) FLC 91-562

Stevenson & Hughes (1993) FLC 92–363 [1993] FamCA 14

Division: Division 2 Family Law

Number of paragraphs: 84

Date of hearing: 13 May 2022

Place: Cairns

Counsel for the Applicant: Mr Anderson of Counsel

Solicitor for the Applicant: O’Loughlins Lawyers

Solicitor for the Respondent: Comley Legal
ORDERS

ADC 2378 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SINAGRA

Applicant

AND:
MS FILICE

Respondent

ORDER MADE BY:

JUDGE COPE

DATE OF ORDER:

13 MAY 2022

THE COURT FINDS THAT the Respondent Mother has breached the Orders made on 13 October 2021 on six separate occasions being as follows:
(a)Count 1 - That on 29 December 2021 the Mother without reasonable excuse withheld the children for a period of two nights in breach of Order 4 (c).
(b)Count 2 – That on 5 January 2022 the Mother without reasonable excuse withheld the children for a period of five nights in breach of Order 4 (a).
(c)Count 3 - That on 12 January 2022 the Mother without reasonable excuse withheld the children for a period of two nights in breach of Order 4 (c).
(d)Count 4 - That on 19 January 2022 the Mother without reasonable excuse withheld the children for a period of five nights in breach of Order 4 (a).
(e)Count 5 - That on 26 January 2022 the Mother without reasonable excuse withheld the children for a period of two nights in breach of Order 4 (c).
(f)Count 6 - That on 2 February 2022 the Mother without reasonable excuse withheld the children for a period of five nights in breach of Order 4 (a).

THE COURT FURTHER FINDS THAT the Respondent Mother had no reasonable excuse for breaching the Orders on each of those six occasions.
THE COURT FURTHER FINDS THAT the six breaches fall within the more serious category.
THE COURT ORDERS THAT:
1.The matter is otherwise adjourned to Friday 20 May 2022 at 2:15pm for Hearing of further submissions as to the appropriate penalties and compensatory time and the Rice v Asplund issue.

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: Sinagra & Filice [2022] FedCFamC2F 732
Case: [2022] FedCFamC2F 732
Decision Date

CaseChat Overview and Summary

The father, Mr Sinagra, filed a contravention application against the mother, Ms Filice, regarding the six alleged contraventions of parenting Orders made on 13 October 2021. The six alleged breaches concern the mother's failure to make the children available for time with the father. The mother conceded the contraventions but argued that she had a reasonable excuse on each occasion. The court was required to determine whether the mother had a reasonable excuse for the contraventions and, if not, whether the contraventions fell within the less or more serious category and what penalty or consequence should apply to the mother. The court found that the mother had breached the Orders without a reasonable excuse on six occasions, and these breaches fell within the more serious category. The court ordered that the matter be adjourned to allow for further submissions as to the appropriate penalties and compensatory time. The court also noted that the mother had not followed the process set out in the final consent Orders for informing the child about his paternity.

The court found that the mother had no reasonable excuse for breaching the Orders on any of the six occasions. The court found that the mother's actions were driven by her anger and bitterness towards the father and his partner. The court found that the mother had not taken any active steps to address the concerns she claimed to have, and that her actions were actively seeking to undermine the relationship between the children and the father. The court also found that the children's evidence was contaminated by the mother's interference with that evidence. The court preferred the father's evidence over the mother's evidence. The court found that the breaches fell within the more serious category due to the ongoing nature of the contraventions, the denial of contact between the children and their father, and the unsatisfactory and alarming evidence of the mother's attempts to address the issues.

Orders