Tamal & Semak (No. 2) - [2017] FamCA 972

FAMILY COURT OF AUSTRALIA

TAMAL & SEMAK (NO. 2)

[2017] FamCA 972

FAMILY LAW – CONTRAVENTION – Where the father has failed to comply with orders to facilitate the return of the parties’ child from Country E to Australia – Where it is conceded this is a more serious intervention – Where the father has not established reasonable excuse – Where the father has not taken reasonable steps to comply with the order – Where alternate penalties to imprisonment are inappropriate in the circumstances – Where a sentence of six months imprisonment is appropriate in the circumstances – Where the father is to be released on compliance with the subject order – Orders made accordingly.

FAMILY LAW – COSTS – Where the contravention has been proved – Where the father has shown serious disregard for court orders – Where it is appropriate that the father should pay the mother’s costs as agreed or assessed.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NFA, 70NFB, 70NFC, 70NFE, 70NFG, 117

D & D (Costs) (No. 2) (2010) FLC 93-435
Dobbs v Brayson [2007] FamCA 1261
Hawkins & Roe [2012] FamCAFC 77
Ongal & Materns [2015] FamCAFC 68
Penfold v Penfold (1980) 144 CLR 311
Tamal & Semak [2017] FamCA 172
Witham v Holloway (1995) 131 ALR 401

APPLICANT:

Ms Tamal

RESPONDENT:

Mr Semak

FILE NUMBER:

PAC

5255

2015

DATE DELIVERED:

29 November 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 June 2017 and 10 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cairns

SOLICITOR FOR THE APPLICANT:

Faye Rose Legal

COUNSEL FOR THE RESPONDENT:

Mr Pierce

SOLICITOR FOR THE RESPONDENT:

Stewart Cuddy & Mockler

Orders

That pursuant to section 70NFB(2) of the Family Law Act 1975 (Cth), the respondent father, Mr Semak, is sentenced to imprisonment for a period of six (6) months or until such time as he complies with his obligation under the order of this Court made on 13 March 2017 for the return of the child D born … 2012 to the Commonwealth of Australia and into the care of the mother and upon the said Mr Semak complying with his obligation under the said order he shall forthwith be released.
That the father Mr Semak pay the mother’s costs of and incidental to this contravention application as agreed within one month of this order or otherwise as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tamal & Semak (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules

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.

Continue reading Tamal & Semak (No. 2)

Details

AGLC: Tamal & Semak (No. 2) [2017] FamCA 972
Case: [2017] FamCA 972
Decision Date: 29 November 2017

CaseChat Overview and Summary

In *Tamal & Semak (No. 2)*, Foster J of the Family Court of Australia considered an application by the mother alleging contravention of court orders by the father concerning the return of the parties' child from Country E to Australia. The father conceded that his failure to facilitate the child's return constituted a more serious intervention, and he did not contend that he had a reasonable excuse for this failure or that he had taken reasonable steps to comply with the order.

The primary legal issue before the court was whether the father had contravened the order requiring the return of the child and, if so, what penalty was appropriate. The court also considered the issue of costs associated with the contravention application.

Foster J found that the father had contravened the order. Applying the principles of section 70NFB(2) of the *Family Law Act 1975* (Cth), the court determined that alternate penalties to imprisonment were inappropriate given the seriousness of the contravention. Consequently, the father was sentenced to imprisonment for a period of six months, or until he complied with the order for the child's return. The court further ordered that the father pay the mother's costs of and incidental to the contravention application.

Orders

Orders of the court

That pursuant to section 70NFB(2) of the Family Law Act 1975 (Cth), the respondent father, Mr Semak, is sentenced to imprisonment for a period of six (6) months or until such time as he complies with his obligation under the order of this Court made on 13 March 2017 for the return of the child D born … 2012 to the Commonwealth of Australia and into the care of the mother and upon the said Mr Semak complying with his obligation under the said order he shall forthwith be released.

That the father Mr Semak pay the mother’s costs of and incidental to this contravention application as agreed within one month of this order or otherwise as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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