Sykes & Sykes - [2021] FedCFamC1A 58

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sykes & Sykes [2021] FedCFamC1A 58

Appeal from: Sykes & Sykes [2021] FCCA 1154

Appeal number(s): EAA 60 of 2021

File number(s): SYC 950 of 2009

Judgment of: AINSLIE-WALLACE J

Date of judgment: 11 November 2021

Catchwords: FAMILY LAW – APPEAL – Where the mother appealed against contravention orders – Cross-applications for contravention – Prior convictions for contravention without penalty – Where the Court imposed bonds for good behaviour and compliance with orders for a period of 12 months without security and without surety – Appeal dismissed.

Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70 NAE, 70NEC

Cases cited:
House v The King (1936) 55 CLR 499; [1936] HCA 40

Keehan v Keehan (2019) 60 Fam LR 276; [2019] FamCAFC 250

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

Number of paragraphs: 55

Date of hearing: 22 October 2021

Place: Sydney

The Appellant Self-represented litigant

The Respondent: Self-represented litigant
ORDERS

EAA 60 of 2021
SYC 950 of 2009

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS SYKES

Appellant

AND:
MR SYKES

Respondent

ORDER MADE BY:

AINSLIE-WALLACE J

DATE OF ORDER:

11 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The appeal EAA 60 of 2021 be dismissed.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sykes & Sykes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:

Ms Sykes (“the mother”) and Mr Sykes (“the father”) are the parents of the child X aged 15 years (“the child”) and have been engaged in parenting litigation since 2009 when the child was two years and two months old. The child will turn 15 in December of this year. The parties each have brought contravention applications against the other and this appeal relates to orders made by a judge of the Federal Circuit Court on 4 May 2021.
The parties began living together in February 2005, were married in December 2005 and separated in 2008. After the parties separated the child remained with the mother.
Proceedings in relation to the child commenced very shortly after separation with an application filed in February 2009 and in 2010 orders were made by consent that the child live with the mother and spend time with…

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

Case: [2021] FedCFamC1A 58
Decision Date

CaseChat Overview and Summary

In this appeal, Ms Sykes ("the mother") challenged orders made by a judge of the Federal Circuit Court on 4 May 2021. The mother and Mr Sykes ("the father") are the parents of a child born in 2006. The child has been the subject of proceedings since 2009. Both parents brought contravention applications against each other. The appeal concerns the contravention applications and the dismissal of the mother's application for parenting orders. The mother appealed the contravention penalty imposed on the father. The mother accepted that she had contravened an order but claimed she had a reasonable excuse. The father had been found in contravention of an order but claimed that he had reasonable excuse and that he had no obligation to inform the mother of changes to the child's school schedule. The primary judge found both parents had contravened the orders and imposed penalties on both. The mother appealed the penalty imposed on the father on the basis that it was too lenient given the seriousness of the contravention and the fact that the father had been found in contravention of an order previously. The mother also appealed the dismissal of her parenting application. The mother did not challenge the dismissal of her parenting application in the appeal. The appeal against the penalty imposed on the father must fail because the mother had sought the very penalty imposed on the father and cannot now complain about it. The mother also did not demonstrate any error in the penalty imposed on the father.

The appeal was dismissed and no order for costs was made.

Orders