Vaughton and Randle (No. 3) - [2013] FamCA 467

FAMILY COURT OF AUSTRALIA

VAUGHTON & RANDLE (NO. 3)

[2013] FamCA 467

FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of nine counts – where the mother admitted the nine counts of contravention – where the mother was found not to have a reasonable excuse for the nine admitted counts of contravention – consideration of what orders to make arising out of these findings
FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – orders made adjourning father’s amended Application in a Case and the mother’s Response to final hearing to be given a priority listing.

Family Law Act 1975 (Cth) s 60CC, 70NAF, 70NBA, 70NFA, 70NFB, 70NFE, 70NFF, 70NFG

Burrows v R (1937) 58 CLR 249
Rice & Asplund (1979) FLC 90-275
R v Pahuja (1987) 49 SASR 191
Sandler & Kerrington [2007] FamCA 479 (24 May 2007)
Irvin & Carr [2007] FamCA 492 (29 May 2007)
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007)
Dobbs & Brayson [2007] FamCA 1261 (25 October 2007)
Walters & Walters [2008] FamCA 720 (25 August 2008)
Short & Trevilian (Contempt and Contraventions) [2008] FamCA 866 (8 October 2008)
Gervasis & Purdy [2009] FamCA 255 (25 March 2009)
McClintock & Levier (2009) 233 FLR 179
McLory & McLory [2010] FamCA 305 (23 March 2010)
Abud & Abud [2010] FamCA 1132 (15 November 2010)
Gravis & Major [2010] FamCAFC 239 (1 December 2010)

Spencer & Verity [2012] FamCAFC 210 (14 December 2012)

APPLICANT:

Mr Vaughton

RESPONDENT:

Ms Randle

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

3046

2010

DATE DELIVERED:

19 June 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

30 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Adey Lawyers and Mediators

COUNSEL FOR THE RESPONDENT:

Mr Wabnitz

SOLICITOR FOR THE RESPONDENT:

Daniel John Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

Within seven [7] days from today the mother Ms Randle enters into a bond for a period of TWO YEARS without surety but with ONE THOUSAND DOLLARS [$1,000.00] as security upon the following conditions:
(a)be of good behaviour during the period of the bond;
(b)comply with all current and future parenting orders.
The child R born on … July 2008 is to spend compensatory time with the father pursuant to s 70NFB(2)(c) of the Act from 9.00 am Saturday 6 July 2013 until 5.00 pm Wednesday 17 July 2013. Handovers are to be conducted in accordance with existing orders.
The mother is to pay the costs of the father pursuant to s 70NFG(2)(g) as agreed between the parties, and in default of such agreement, the sum to be paid by the mother is to be determined by a Registrar of this Court, being the costs of the contravention proceedings according to the scale.
The mother…

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: [2013] FamCA 467
Decision Date

CaseChat Overview and Summary

In Vaughton & Randle (No. 3) [2013] FamCA 467, the Family Court of Australia considered applications for contravention orders brought by the father, Mr Vaughton, against the mother, Ms Randle, concerning their child, R. The father's applications alleged a total of nine counts of contravention of existing parenting orders, specifically relating to the mother's failure to present the child for time with the father on specified alternate weekends. The mother admitted all nine counts of contravention.

The primary legal issues before the Court were to determine whether the mother had a reasonable excuse for the admitted contraventions and, if not, what orders should be made consequent to those findings. The Court was required to consider the provisions of the *Family Law Act 1975* (Cth), including sections relating to contravention of orders and the making of compensatory time and costs orders. The Court also had to consider the implications of the mother's prior suspended sentence of imprisonment for contravention of court orders.

Justice Dawe found that the mother had not established a reasonable excuse on the balance of probabilities for any of the nine admitted contraventions. In reaching this decision, the Court considered the total time the father had lost with the child due to these contraventions, amounting to 288 hours or 12 days. The Court applied principles regarding contravention of orders and the need to make orders that reflect the seriousness of such breaches while also considering the welfare of the child.

Consequently, the Court ordered that the mother enter into a bond for two years with a $1,000 security, requiring her to be of good behaviour and comply with all parenting orders. Compensatory time was ordered for the child to spend with the father from 9.00 am on Saturday, 6 July 2013, until 5.00 pm on Wednesday, 17 July 2013. The mother was also ordered to pay the father's costs for the contravention proceedings and the costs of the Independent Children's Lawyer. Certain existing parenting orders regarding the commencement of alternate weekends and the supervision of time were varied. The father's amended application and the mother's response were adjourned to a final hearing to be listed as a priority. Justice Dawe also disqualified himself from further hearings in the matter.

Orders