Solberg & Markwell

Case [2023] FedCFamC2F 552


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Solberg & Markwell [2023] FedCFamC2F 552

File number(s): CAC 1533 of 2014
Judgment of: JUDGE W J NEVILLE
Date of judgment: 15 May 2023
Catchwords: FAMILY LAW – Parenting – application to re-open proceedings following final orders in June 2020 – contravention applications – where the first and second Applicants are the respective Fathers to two daughters shared with the Mother in long-running and highly contested litigation – where the Mother finally relocated to the City AB region some two years or so after the final hearing and judgment in June 2020 – where new evidence arose from the Department of Communities and Justice following the more recent hearings – where previous Orders require the Mother to be granted leave prior to filing any new Applications – where the Father of the younger child amended his position following the trial – all Applications in relation to the older child are dismissed – all applications dismissed in relation to the younger child following variation of the Final Orders for the youngest child to return to the Father’s primary care pursuant to section 70NBA of the Family Law Act 1975 (Cth)
Legislation:

Family Law Act 1975 (Cth) ss. 60CA, 60CC(3), 65DAC, 65N, 70NAC, 70NAE, 70NBA, 117.

Children and Young Persons (Care and Protection) Act 1998 (NSW) s.248

Cases cited:

Banham v Banham (2021) 64 Fam LR 361

Carriel v Lendrum (2015) 53 Fam LR 157

CDW v LVE [2015] WASCA 247

Childers v Leslie (2009) 217 FLR 124; (2009) 39 Fam LR 379

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

In the Marriage of O’Brien (1992) 16 Fam LR 723

Mahneey & Dieter [2020] FamCAFC 88

Marsden v Winch (2010) 42 Fam LR 1

Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654

Poisat & Poisat (2014) FLC 93-597.

Rice & Asplund (1979) FLC ¶90-725

SPS & PLS (2008) 217 FLR 164; (2008) FLC 93-363

Stephens v Stephens (2011) 44 Fam LR 117

Swenson & Brantley (No.2) [2020] FamCAFC 205

Walter & Walter [2016] FamCAFC 56

Division: Division 2 Family Law
Number of paragraphs: 254
Date of last submission/s: 7 April 2023
Date of hearing: 4 October 2022 – Application in a Proceeding
5 October 2022 & 24 November 2022– Contravention
20 December 2022 – Mention/Direction
24 March 2023 – Contravention
Place:  City AB
Solicitor for the Applicant Father (Respondent and Applicant to the Contravention Applications) AC Law Firm
Respondent Mother (Applicant and Respondent in the Contravention Applications) Self-represented

ORDERS

CAC 1533 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SOLBERG
First Applicant

AND:

MR RANWICK
Second Applicant

AND: 

MS MARKWELL
Respondent

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

15 may 2023

THE COURT DECLARES THAT:

Contraventions, Pleas, and Findings

Contravention Application filed 22nd July 2022

(i)Contravention 3 set out in the Contravention Application filed 22 July 2022 was admitted but with reasonable excuse. The…

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Solberg & Markwell [2023] FedCFamC2F 552
Case
[2023] FedCFamC2F 552
Decision Date

CaseChat Overview and Summary

This matter concerns a highly contested family law dispute between the first and second applicants, who are the fathers of two daughters, and the respondent mother. The fathers sought to re-open proceedings following final orders made in June 2020. The fathers also filed contravention applications following new evidence from the Department of Communities and Justice. The court was required to determine whether the mothers’ actions amounted to contraventions of the court’s orders, and if so, whether the contraventions were with reasonable excuse. The court also needed to decide whether the mothers' applications should be dismissed and whether the orders should be varied to return the youngest child to the father’s primary care.

The court found that some of the contraventions were admitted but with reasonable excuse, while others were not admitted. The court dismissed the mothers' applications, finding that they were unlikely to succeed, and varied the final orders to return the youngest child to the father’s primary care. The court found that the mothers had contravened the orders, but with reasonable excuse in some cases. The court also found that the mothers’ applications were unlikely to succeed and were an abuse of process. The court discharged certain orders from the previous final orders and made new orders regarding the care of the youngest child. The court also noted that if the mothers filed any similar contraventions within the next two years, a strict or significant bond would likely be required. Finally, the court noted that any further applications would be heard by a different judge.

The court ordered that the mothers' applications be dismissed, that the mothers pay the fathers' costs, and that the youngest child be returned to the father's primary care. The court also varied the final orders to provide for the youngest child to spend time with the mother under certain conditions. The court noted that any further contraventions by the mothers would likely require a strict or significant bond and that any further applications would be heard by a different judge.

Orders

Orders of the court

THE COURT DECLARES THAT:

Contraventions, Pleas, and Findings

Contravention Application filed 22nd July 2022

(i) Contravention 3 set out in the Contravention Application filed 22 July 2022 was admitted but with reasonable excuse. The Court finds the Contravention is with reasonable excuse.

(ii) Contravention 4 set out in the Contravention Application filed 22 July 2022 was admitted but with reasonable excuse. The Court finds the Contravention is with reasonable excuse.

(iii) Contravention 5 set out in the Contravention Application filed 22 July 2022 was not admitted. The Court finds the Contravention is not established.

Contravention Application filed 7th March 2023

(iv) Contravention 1 set out in the Contravention Application filed 7 March 2023 was admitted but with reasonable excuse. The Court finds the Contravention is established without reasonable excuse.

(v) Contravention 2 set out in the Contravention Application filed 7 March 2023 was not admitted. The Court finds the Contravention is established.

(vi) Contravention 3 set out in the Contravention Application filed 7 March 2023 was not admitted. The Court finds the Contravention is established.

(vii) Contravention 4 set out in the Contravention Application filed 7 March 2023 was not admitted. The Court finds the Contravention is established.

ON A FINAL BASIS, THE COURT ORDERS THAT:

1. The Application in a Proceeding, filed by the Respondent Mother on 13th January 2022, be dismissed.

2. The Contravention Application, filed by the Respondent Mother on 22nd July 2022, be dismissed.

3. The Respondent must pay the costs of the Second Applicant Father fixed in the sum of $6,000.00 within 60 days of the date of these Orders, being by no later than 4:00pm on 14 July 2023.

4. Orders 11, 12(b)(i) and 14 of the Orders of 30 June 2020 are hereby discharged.

5. D born in 2017 (‘D’) be returned to the Second Applicant Father no later than 4:00pm on 2 July 2023 at TOWN F SERVICE CENTRE.

6. A Recovery Order will issue immediately from Chambers and lay in the Registry pending compliance with Order 5 herein. Upon notification to the Court that Order 5 has not been complied with, the Recovery Order will issue immediately.

7. Thereafter, D shall live with the Second Applicant Father.

8. The Second Applicant Father have sole parental responsibility for D.

9. The Second Applicant Father shall keep the Respondent Mother informed of any decisions relating to any major, long-term issues relating to D via the Talking Parents application.

10. D shall spend time with the Respondent Mother as follows:

(a) Commencing 2 July 2023, for a period of 6 months, for one weekend per month, from 5:00pm on Friday until 5:00pm on Sunday on the first weekend of each month, unless otherwise agreed in writing

(b) Absent any reports by the Respondent Mother to Care and Protection within the following 6 months, and absent any adverse Application by the Second Applicant Father against the Respondent Mother regarding parenting within the following 6 months, commencing 2 January 2024, each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday.

(c) Once the Mother’s time with the child moves to each alternate weekend as provided for in Order 10(b), the Final Orders of 30th June 2020 regarding holiday time will apply thereafter.

11. For the purposes of Order 10, changeover is to take place at the Town F Service Centre.

AND THE COURT NOTES THAT:

A. In the event that any contravention is filed by the Mother within the next 2 years that is similar in circumstances of those dealt with by the Court on these occasions set out in these reasons, it is likely, subject to evidence and submissions, that a strict or significant bond would be required of the Mother; and

B. In view of the many adverse findings against the Mother in this judgment, and earlier judgments by Judge Hughes, if any further Application is filed by either party, it will be heard by a Judge of the Court other than Judge Hughes or Judge W J Neville.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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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