TVT & TLM

Case [2006] FMCAfam 20

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TVT & TLM [2006] FMCAfam 20

FAMILY LAW – Contravention – reasonable steps to comply – children’s order – physical contact – whether mother had prepared child to hand-overs – mother refused to part with child – mother refused to use contact centre – extent of obligation to ensure order carried out.

FAMILY LAW – Contravention – reasonable excuse – children’s order – physical contact – Contact parent late for pick-up – obligations of residence parent if contact parent late generally – where contact parent travelling from Perth to Brisbane – ongoing obligation to comply with order in the circumstances.

FAMILY LAW – Contravention – reasonable steps to comply – counselling order – arrangements made for report to be obtained rather than counselling – failure to involve contact parent in process.
Evidence Act 1995, ss.136, 140
Family Law Act 1975, ss.70nc, 70ne, 70nea, 102a

D & C [2005] FamCA 1046

Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313; (2000) FLC ¶93-024

Fooks & Clark [2004] FamCA 212
Gaunt and Smith (1978) FLC ¶90–468; (1978) 4 Fam LR 305
Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553
O'Brien&O’Brien (1993) FLC ¶92-396
P & P [2002] FMCAfam 315 (Unrep.)
Reilly and Reilly (1995) FLC ¶92-616
Stavros and Stavros (1984) FLC ¶91-562
Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527)
W & N [2003] FMCAfam 240

Applicant: TVT
Respondent: TLM
File Number: (P)BRM4108/2005
Judgment of: Riethmuller FM
Hearing date: 12 October 2005
Date of Last Submission: 12 October 2005
Delivered at: Melbourne
Delivered on: 24 January 2006

REPRESENTATION

Counsel for the Applicant: In person
Counsel for the Respondent: Ms Miller
Solicitors for the Respondent: Fitz-Walter Lawyers

ORDERS

  1. That on the court making the following findings:

    (a)That from 2 July 2004 to March 2005 the mother, without reasonable excuse, contravened Orders 2 and 4(a) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to encourage the child’s relationship with the father during telephone contact.

    (b)That on 9 and 10 July 2004 the mother, without reasonable excuse, contravened Orders 4(c) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to make the child available at 9am on 9 July 2004, terminating contact early on 9 July 2004 and failing to make the child available for contact on 10 July 2004.

    (c)That from 24 December to 26 December 2004 the mother, without reasonable excuse, contravened Order 4(e) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to provide the child for contact in accordance with the orders.

    (d)That the mother, without reasonable excuse, contravened Orders 5 of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to ensure that the child obtained counselling prior to the first contact visits in Order 4(c) and 4(e).

    (e)That on 19…

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AGLC
TVT & TLM [2006] FMCAfam 20
Case
[2006] FMCAfam 20
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, a case involving TVT and TLM was heard where the mother was accused of contravening several orders made by the Southport Magistrates Court. The dispute centred on the mother's failure to comply with various provisions related to the children's contact with the father and the child's access to counselling. The mother was alleged to have failed to encourage the child's relationship with the father during telephone contact, refused to make the child available for contact, and did not ensure the child obtained counselling prior to contact visits. The father also claimed that the mother had not prepared the child for handovers and refused to part with the child or use a contact centre. Additionally, the father argued that the mother contravened the orders by not taking reasonable steps to ensure compliance when the contact parent was late for pick-up.

The court was required to determine whether the mother's actions constituted a contravention of the orders and whether there was a reasonable excuse for her failure to comply. Specifically, the court had to consider the mother's responsibility in encouraging the child's relationship with the father, the timing and manner of handovers, and the mother's role in ensuring the child received counselling. The court also needed to assess the father's obligations when the contact parent was late for pick-up, particularly given the distance involved in travelling from Perth to Brisbane.

In its reasoning, the court found that the mother had contravened several of the orders without reasonable excuse. It was determined that from 2 July 2004 to March 2005, the mother failed to encourage the child's relationship with the father during telephone contact, did not make the child available for contact on specified dates, and did not provide for contact over the holiday period. The court also found that the mother did not ensure the child obtained counselling before contact visits and failed to provide telephone and physical contact on specific dates. The court noted that the mother had not prepared the child for handovers, refused to part with the child, and refused to use a contact centre. The father's obligation to ensure compliance when the contact parent was late for pick-up was considered in light of the travel distance and circumstances.

The court made findings that the mother had contravened the orders without reasonable excuse and adjourned the application to a later date to consider appropriate consequential orders. The findings highlighted the mother's failure to encourage the child's relationship with the father, ensure timely handovers, and provide necessary counselling. The court's decision underscores the importance of compliance with court-ordered arrangements for the welfare of the child.

Orders

Orders of the court

1.

That on the court making the following findings:

(a) That from 2 July 2004 to March 2005 the mother, without reasonable excuse, contravened Orders 2 and 4(a) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to encourage the child’s relationship with the father during telephone contact.

(b) That on 9 and 10 July 2004 the mother, without reasonable excuse, contravened Orders 4(c) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to make the child available at 9am on 9 July 2004, terminating contact early on 9 July 2004 and failing to make the child available for contact on 10 July 2004.

(c) That from 24 December to 26 December 2004 the mother, without reasonable excuse, contravened Order 4(e) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to provide the child for contact in accordance with the orders.

(d) That the mother, without reasonable excuse, contravened Orders 5 of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to ensure that the child obtained counselling prior to the first contact visits in Order 4(c) and 4(e).

(e) That on 19 June 2005 the mother, without reasonable excuse, contravened Order 4(a) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to provide telephone contact.

(f) That on 20 June 2004 the mother, without reasonable excuse, contravened Order 4(f) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to provide physical contact.

The application be adjourned to a date to be fixed for further hearing as to the appropriate consequential orders.

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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