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Spencer & Verity

Spencer & Verity

Case [2012] FamCAFC 210

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Unconscionable Conduct

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Family Law

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FAMILY COURT OF AUSTRALIA

SPENCER & VERITY

[2012] FamCAFC 210

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Interpretation of orders ─ Asserted uncertainty of drug screen orders ─ Whether there was such uncertainty as to their effect that the drug screen orders were not capable of founding a successful contravention application ─ Where the Court could not discern, on balance, which of the drug screen orders was intended to prevail ─ Where on balance, the Court was not persuaded that the inter-action of the drug screen orders was sufficiently clear as to permit them to found a successful application even on the civil standard of proof ─ Where given the uncertainty in relation to the operation of the drug screen orders the appellant’s defence could not be rejected ─ Appeal allowed in part ─ Contravention findings set aside.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Waiver ─ Whether the Federal Magistrate erred because his Honour did not accept that the respondent’s failure to comply with the drug screen order/s provided a reasonable excuse for the appellant failing to comply with the orders for the parties’ child to spend time with the respondent, essentially on the basis that, by subsequently allowing contact, the appellant had waived the breach of the orders because she continued for months to comply with the orders ─ Where the logic of his Honour’s reasons for rejecting the defence is unassailable in the absence of evidence from the appellant that she believed that she had no choice than to comply with the orders, despite the respondent’s alleged breach ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Where there was no error with respect to jurisdiction or power on the part of the Federal Magistrate ─ Not established that his Honour did not afford the parties procedural fairness and natural justice ─ Challenges unsuccessful.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Challenge to orders for compensatory time to be spent ─ Whether the Federal Magistrate failed to follow a legislative pathway, or to find jurisdictional facts in relation to compensatory contact ─ Where there may be cases where an application for compensatory time clearly obliges a judicial officer to consider the provisions of s 60CC from equal shared parental responsibility through ss 60CC and 65DAA, but the Court did not find, either as a matter of statutory construction, or on the facts, that the Federal Magistrate erred by failing to do so in this case ─ Where the Court did not find merit in any of the challenges to the variation or compensatory time orders made by the Federal Magistrate.

Family Law Act 1975 (Cth) Part VII; ss 60CC, 65DAA, 70NBA, 70NAC, 70NAE, 70NDB

Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279
Coulton v Holcombe (1986) 162 CLR 1
Dobbs and Brayson (2007) FLC 93-346
Irvin and Carr (2007) FLC 93-322
Mead v Mead (2007) 235 ALR 197
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68

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: Spencer & Verity [2012] FamCAFC 210
Case: [2012] FamCAFC 210
Decision Date

CaseChat Overview and Summary

The appeal was heard in the Family Court of Australia in Sydney, with the Honourable Justice Coleman delivering the judgment on 14 December 2012. The appellant, Ms Spencer, appealed against orders made by Dunkley FM on 12 July 2012 in proceedings between the appellant and Mr Verity pursuant to the Family Law Act 1975 (Cth). The Federal Magistrate found three contraventions of parenting orders alleged by the respondent to have been proved, and made consequential orders providing that the respondent spend compensatory time with the parties' child. The appellant sought that the contravention findings, and the orders for the spending of compensatory time, be set aside. The respondent resisted the appeal and sought to maintain the orders of the Federal Magistrate.

The Court found that the learned Federal Magistrate was not entitled to reject the appellant's defence, which relied upon the obligations of the respondent pursuant to orders 13 and 15 of the 2011 orders. Consequently, the findings of contravention were set aside. The Court did not find merit in any of the challenges to the variation or compensatory time orders made by the learned Federal Magistrate. The appeal was allowed in part, with orders 2, 3, 4 of the orders of the Federal Magistrates Court made on 12 July 2012 being set aside, and orders 6, 7 and 8 being varied accordingly. Reference to orders 13 and 15 in Declaration 12 of the Federal Magistrates Court of 12 July 2012 was also set aside. Costs were reserved, with any party seeking an order for costs required to file and serve submissions within 21 days, followed by submissions in opposition within 21 days thereafter.

Orders