TOME & TOME - [2019] FCCA 3003

FEDERAL CIRCUIT COURT OF AUSTRALIA

TOME & TOME

[2019] FCCA 3003

Catchwords:
FAMILY LAW – Children – contravention – costs.

Legislation:

Family Law Act 1975 (Cth), ss.69ZX, 70NEA, 70NEB, 117(2)—(5)
Federal Circuit Court Rules 2001 (Cth), div.21

Cases cited:

Gaunt & Gaunt (1978) FLC 90-468

O’Brien & O’Brien (1993) FLC 92-369

Allesch v Maunz [2000] HCA 40

Stevenson & Hughes (1993) FLC 92-363

Green & Graham [2011] FamCAFC 248

Applicant:

MR TOME

Respondent:

MS TOME

File Number:

PAC 842 of 2018

Judgment of:

Judge Harman

Hearing date:

12 April 2019

Date of Last Submission:

12 April 2019

Delivered at:

Parramatta

Delivered on:

12 April 2019

REPRESENTATION

Counsel for the Applicant:

Mr Gardner

Solicitors for the Applicant:

Lamrocks Solicitors

The Respondent appeared in Person

ORDERS

I find that Ms Tome has, without reasonable excuse, failed to comply with the orders of this Court made 3 May 2018 on each of:
(a)18 July 2018;
(b)6 August 2018;
(c)22 August 2018;
(d)28 November 2018;
(e)4 February 2019;
(f)6 February 2019;
(g)17 February 2019;
(h)18 February 2019;
(i)20 February 2019;
(j)4 March 2019;
(k)6 March 2019;
(l)13 March 2019;
(m)17 March 2019;
(n)18 March 2019;
(o)20 March 2019.
Pursuant to section 70NEB:
(a)The mother shall be required, by close of business Monday, 15 April 2019, to attend upon a registrar of this Court for the purpose of entering into a bond, without surety or security, to be of good behaviour; and
(b)To comply, pending further order and until completion of the substantial hearing of these proceedings, with orders made by this Court today and on 3 May 2018.
The orders of 3 May 2018 are varied as follows:
(a)Supervision shall be provided by A Family Services rather than B Family Services;
(b)Each party shall be responsible for one half of all fees charged by A Family Services;
(c)The supervised contact service shall collect the children from the mother’s home at the commencement of each period and return them to that home at the end of each period.
The mother shall pay to the father as a contribution towards his legal costs (an order pursuant to both section 117 and section 70NEB(1)(f)) and his expenses (being payments made by the husband for supervised contact services which did not proceed), the sum of $7,000, such costs and expenses to be paid within 28 days of today’s date, and failing which:
(a)Interest shall then accrue upon that sum from the date 28 days hence until the date of eventual payment; and
(b)The father shall be entitled to commence recovery proceedings for that sum and interest and costs in a Court of competent jurisdiction.
Otherwise dismiss the Application for Contravention filed 29 March 2019 and the Application in a Case filed 3 April 2019.
Remove those applications from the list of cases waiting hearing.
Note the matter remains listed for trial, 11 to 13 September 2019.
Note the parties have filed their trial material, and a Part 15 report has been prepared, such that the matter is ready…

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 TOME & TOME

Details

AGLC: Tome and Tome [2019] FCCA 3003
Case: [2019] FCCA 3003
Decision Date: 12 April 2019

CaseChat Overview and Summary

In the matter of *Tome & Tome*, Judge Harman considered an application for contravention of court orders. The dispute concerned allegations by the father that the mother, Ms Tome, had failed to comply with previous orders of the Court made on 3 May 2018.

The Court was required to determine whether Ms Tome had, without reasonable excuse, contravened the orders of 3 May 2018 on multiple occasions between July 2018 and March 2019. Additionally, the Court needed to consider the appropriate orders to be made in light of any contraventions, including variations to existing orders, the imposition of a bond, and the allocation of legal costs and expenses.

Judge Harman found that Ms Tome had indeed failed to comply with the court orders on each of the specified dates without reasonable excuse. Consequently, the Court ordered Ms Tome to enter into a bond to be of good behaviour and to comply with existing and newly made orders pending the substantial hearing. The previous orders were varied to change the supervised contact service provider to A Family Services, with both parties to share the associated fees, and to stipulate that the supervised contact service would collect and return the children from the mother's home. The Court also ordered Ms Tome to pay the father $7,000 towards his legal costs and expenses for supervised contact services that did not proceed, with provisions for interest and recovery proceedings in the event of non-payment. The father's application for contravention and the mother's application in a case were otherwise dismissed. The matter was noted as remaining listed for trial in September 2019, with trial materials filed and a Part 15 report prepared.

Orders

Orders of the court

I find that Ms Tome has, without reasonable excuse, failed to comply with the orders of this Court made 3 May 2018 on each of:

(a) 18 July 2018;

(b) 6 August 2018;

(d) 28 November 2018;

(e) 4 February 2019;

(f) 6 February 2019;

(g) 17 February 2019;

(h) 18 February 2019;

(i) 20 February 2019;

(j) 4 March 2019;

(k) 6 March 2019;

(l) 13 March 2019;

(m) 17 March 2019;

(n) 18 March 2019;

(o) 20 March 2019.

Pursuant to section 70NEB:

(a) The mother shall be required, by close of business Monday, 15 April 2019, to attend upon a registrar of this Court for the purpose of entering into a bond, without surety or security, to be of good behaviour; and

(b) To comply, pending further order and until completion of the substantial hearing of these proceedings, with orders made by this Court today and on 3 May 2018.

The orders of 3 May 2018 are varied as follows:

(a) Supervision shall be provided by A Family Services rather than B Family Services;

(b) Each party shall be responsible for one half of all fees charged by A Family Services;

(c) The supervised contact service shall collect the children from the mother’s home at the commencement of each period and return them to that home at the end of each period.

The mother shall pay to the father as a contribution towards his legal costs (an order pursuant to both section 117 and section 70NEB(1)(f)) and his expenses (being payments made by the husband for supervised contact services which did not proceed), the sum of $7,000, such costs and expenses to be paid within 28 days of today’s date, and failing which:

(a) Interest shall then accrue upon that sum from the date 28 days hence until the date of eventual payment; and

(b) The father shall be entitled to commence recovery proceedings for that sum and interest and costs in a Court of competent jurisdiction.

Otherwise dismiss the Application for Contravention filed 29 March 2019 and the Application in a Case filed 3 April 2019.

Remove those applications from the list of cases waiting hearing.

Note the matter remains listed for trial, 11 to 13 September 2019.

Note the parties have filed their trial material, and a Part 15 report has been prepared, such that the matter is ready to proceed.

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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