Vaughton & Randle (No.2) - [2013] FamCA 286

FAMILY COURT OF AUSTRALIA

VAUGHTON & RANDLE (NO. 2)

[2013] FamCA 286

FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of nine counts – where the primary order required the mother to bring the child to Adelaide from Tasmania to spend time with the father – where the mother admits all nine counts – consideration of whether the mother had a reasonable excuse for contravention – where the mother claims she has a reasonable excuse pursuant to s 70NAE(5) of the Family Law Act 1975 (Cth) – no reasonable excuse for contravention established.

Family Law Act 1975 (Cth) s 70NAC, 70NAE, 70NAF, 70NBA, 70NDB, 70NFA, 70NFB, 70NFG

Childers & Leslie (2008) 39 Fam LR 379

APPLICANT:

Mr Vaughton

RESPONDENT:

Ms Randle

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

3046

2010

DATE DELIVERED:

1 May 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

20 February 2013, 13 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Adey Lawyers

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

The contravention applications filed by the father on 29 September 2012 and 11 December 2012 are adjourned to Thursday 30 May 2013 at 10.00 am before the Honourable Justice Dawe for the Court to hear further submissions from each of the parties in relation to the orders.
The question of costs of the applications are adjourned to Thursday 30 May 2013 at 10.00 am before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3046 of 2010

Mr Vaughton

Applicant

And

Ms Randle

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment considers two applications for contravention orders filed by Mr Vaughton (“the father”). They allege that Ms Randle (“the mother”) has contravened various court orders relating to their child R, (“the child”). The child was born in July 2008 and was accordingly 4 years old at the date of the hearing.
The matter was initially listed for hearing on 20 February 2013. The mother failed to attend. Her then lawyer, Mr Guest of Ian Guest & Associates appearing via telephone link from Tasmania, sought that the matter be adjourned to allow him to receive further instructions from his client. The matter was subsequently adjourned to the 13 March 2013. I ordered the mother to attend Court on this date. I also ordered that the time the father spends with the child was to recommence on Saturday 23 February 2013 and Saturday 9 March 2013 and otherwise in accordance with the existing orders. The question…

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 Vaughton & Randle (No.2)

Details

AGLC: Vaughton & Randle (No.2) [2013] FamCA 286
Case: [2013] FamCA 286
Decision Date

CaseChat Overview and Summary

Mr Vaughton (the father) applied for contravention orders against Ms Randle (the mother) concerning their child, R. The father's applications alleged a total of nine counts of contravention, primarily relating to the mother's failure to present the child to the father in Adelaide for scheduled time together, as required by existing court orders. The proceedings were heard in the Family Court of Australia at Adelaide by Justice Dawe.

The central legal issue before the court was whether the mother had a reasonable excuse for contravening the parenting orders, as contemplated by section 70NAE of the *Family Law Act 1975* (Cth). The mother admitted to all nine alleged contraventions, thus shifting the focus to the existence of a lawful excuse for her conduct. The court was required to consider the specific circumstances of each alleged contravention and determine if they met the statutory criteria for a reasonable excuse, particularly in relation to protecting the health or safety of a person.

Justice Dawe found that the mother had not established a reasonable excuse for any of the nine contraventions. The court applied the provisions of Division 13A of Part VII of the *Family Law Act 1975* (Cth), which define contravention and outline circumstances that may constitute a reasonable excuse. Despite the mother's admission of the contraventions, the evidence presented did not satisfy the requirements of section 70NAE, specifically the belief on reasonable grounds that not allowing the child to spend time with the father was necessary to protect the health or safety of a person, and that the period of non-compliance was no longer than necessary for that protection.

The contravention applications were adjourned for further submissions on orders and costs.

Orders