Virtanen & Ferreyra

Case [2023] FedCFamC1F 1078

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Virtanen & Ferreyra [2023] FedCFamC1F 1078

File number: BRC 1134 of 2022
Judgment of: MCCLELLAND DCJ
Date of judgment: 14 December 2023
Catchwords: FAMILY LAW – CONTRAVENTION – Where the parties entered into final parenting consent orders in August 2022 – Father seeking 10 counts of contravention against the mother – Where Count 1 concerns the mother failing to provide details regarding the children’s medical practitioner to the father without reasonable excuse – Where the mother withheld the children from the father on nine occasions but pled reasonable excuse – Whether the mother understood her obligations of the final parenting orders – 10 counts proven without reasonable excuse – Application listed for consideration of determination of penalty.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, Div 13A, ss 60B, 70NAC, 70NAE, 70NAF
Cases cited:

Bunt & Charring (No.2) [2018] FCCA 1153

Childers & Leslie (2008) FLC 93-356; [2008] FamCAFC 5

Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24

Guant and Guant (1978) FLC 90-468; [1978] FamCA 97

Martin v Norton Rose Fulbright Australia (2021) 289 FCR 369; [2021] FCAFC 216

Division: Division 1 First Instance
Number of paragraphs: 128
Date of last submissions: 30 November 2023
Date of hearing: 10 October 2023
Place: Sydney (via videolink)
Counsel for the Applicant: Ms Davison
Solicitor for the Applicant: BGM Family Lawyers
Counsel for the Respondent: Mr Coe
Solicitor for the Respondent: HCM Legal

ORDERS

BRC 1134 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR FERREYRA

Applicant
AND:

MS VIRTANEN

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:

1.Count 1 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 17.2 of the orders made on 9 August 2022 without reasonable excuse.

2.Count 2 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.

3.Count 8 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 6.1.1 of the orders made on 9 August 2022 without reasonable excuse.

4.Count 9 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 11.5.2 of the orders made on 9 August 2022 without reasonable excuse.

5.Count 10 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.

6.Count 11 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.1 of the orders made on 9 August 2022 without reasonable excuse.

7.Count 12 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having…

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AGLC
Virtanen & Ferreyra [2023] FedCFamC1F 1078
Case
[2023] FedCFamC1F 1078
Decision Date

CaseChat Overview and Summary

The matter in the Federal Circuit and Family Court of Australia concerns a dispute between Mr Ferreyra and Ms Virtanen regarding alleged contraventions of final parenting consent orders made on 9 August 2022. The father filed an application on 12 May 2023, alleging 17 counts of contravention. The mother disputes the allegations and the case has proceeded to the determination of the merits of the allegations. The court was required to determine whether the mother had contravened the final parenting orders without reasonable excuse. The mother conceded to contravening the orders on nine occasions but claimed a reasonable excuse. The court was required to determine whether the mother's claims of reasonable excuse were valid and, if not, whether the contraventions were proved without reasonable excuse.

The court found that the mother had contravened the orders without reasonable excuse on ten counts. The court dismissed the mother’s claim that she did not understand her obligations under the orders, finding that the mother had demonstrated an understanding of the orders by her actions in complying with them in certain circumstances. The court found that the mother had a reasonable excuse for contravening the orders on nine occasions but held that the mother’s reasons did not amount to a reasonable excuse for the one count where she failed to provide the father with details of the children’s medical practitioner. The court found the mother had contravened the orders without reasonable excuse on that count and the nine counts where the mother claimed a reasonable excuse. The court listed the matter for 19 February 2024 to consider the issue of penalty and for further case management.

Orders

Orders of the court

BRC 1134 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR FERREYRA

Applicant

AND:

MS VIRTANEN

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

14 DECEMBER 2023

THE COURT ORDERS THAT:

1. Count 1 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 17.2 of the orders made on 9 August 2022 without reasonable excuse.

2. Count 2 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.

3. Count 8 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 6.1.1 of the orders made on 9 August 2022 without reasonable excuse.

4. Count 9 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 11.5.2 of the orders made on 9 August 2022 without reasonable excuse.

5. Count 10 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.

6. Count 11 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.1 of the orders made on 9 August 2022 without reasonable excuse.

7. Count 12 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 11.6 of the orders made on 9 August 2022 without reasonable excuse.

8. Count 15 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.

9. Count 16 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened Order 5.2.1.2 of the orders made on 9 August 2022 without reasonable excuse.

10. Count 17 of the Application – Contravention filed on 12 May 2023 is proved with the respondent having contravened order 5.2.1.1 of the orders made on 9 August 2022 without reasonable excuse.

11. The matter is listed for hearing at 9.30 am (AEST) on 19 February 2024 to consider the issue of penalty and for further case management.

12. By no later than 4.00 pm on 12 February 2024, the parties are to file and serve their respective case outlines in respect to the issue of penalty.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The mother disputes that she has withheld information concerning the identity of the medical practitioner, contending that, at all relevant times, the father was capable of obtaining the information through government records. The mother acknowledges failing to comply with the final parenting orders made on 9 August 2022, by failing to facilitate the children spending time with the father, in respect to the relevant dates identified in those contraventions pressed by the father. The mother contends, however, firstly, that she failed to understand the final orders and secondly that, in any event, she had a reasonable excuse for failing to comply with the obligations imposed by those orders. BACKGROUNDThe parties and the children In circumstances where both parties rely upon a Child Impact Report prepared by Court Child Expert, Mr C on 1 August 2022, it is convenient to refer to that document in setting out the background to the current dispute. Both parties are 30 years old. The mother was born in 1993 and the father was born in 1993. The mother generally works in the sales industry but for a limited period of time, engaged in an online business. The father works in the security industry which involves engaging in shiftwork. The party’s eldest son X, was born in 2017 and is currently 6 years of age. The party’s youngest son Y, was born in 2019 and is currently 4 years of age. Y was born after the date of the parties’ separation in late January 2019. The children live with the mother within the maternal grandmother’s home in Region B. The father lives in Brisbane with his partner, Ms D, approximately a 45 minute drive from where the mother lives. Proceedings were commenced by the father on 5 February 2022 following, firstly, a dispute which involved the mother enrolling the children in daycare and school without consulting the father and, secondly, the mother failing to comply with an informal agreement reached between the parties regarding the spend time arrangements for the children.History of the intact relationship The parties commenced cohabitation sometime in 2015 and lived together until their final separation on 23 January 2019. Both parties acknowledge that it was the father’s decision to end their relationship.Family dynamics post-separation In the Child Impact Report dated 1 August 2022, the Court Child Expert observed the children interacting with both parents and the father’s new partner, Ms D. The Court Child Expert observed that “the children have a close connection to both parents and there exists a natural and spontaneous affection between them”.[1][1] Child Impact Report dated 1 August 2022, paragraph 9. The Court Child Expert also observed an “uncomfortable tension” between the parties at changeover that occurred with “neither party exchanging pleasantries”.[2] Fortunately, the children did not, at that stage, appear to have been adversely impacted by the tension between their parents, with the children being observed to present as “happy and secure individuals” who comfortably explored their environment.[3] [2] Child Impact Report dated 1 August 2022, paragraph 10.[3] Child Impact Report dated 1 August 2022, paragraph 11.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The parties commenced cohabitation sometime in 2015 and lived together until their final separation on 23 January 2019. Both parties acknowledge that it was the father’s decision to end their relationship.Family dynamics post-separation In the Child Impact Report dated 1 August 2022, the Court Child Expert observed the children interacting with both parents and the father’s new partner, Ms D. The Court Child Expert observed that “the children have a close connection to both parents and there exists a natural and spontaneous affection between them”.[1][1] Child Impact Report dated 1 August 2022, paragraph 9. The Court Child Expert also observed an “uncomfortable tension” between the parties at changeover that occurred with “neither party exchanging pleasantries”.[2] Fortunately, the children did not, at that stage, appear to have been adversely impacted by the tension between their parents, with the children being observed to present as “happy and secure individuals” who comfortably explored their environment.[3] [2] Child Impact Report dated 1 August 2022, paragraph 10.[3] Child Impact Report dated 1 August 2022, paragraph 11. Y was too young to be interviewed but the Report recorded X as being “comfortable” in his interactions with the Court Child Expert and that he “chatted easily”.[4] When asked about his favourite activity, X mentioned that he enjoyed playing a video game with his father and that he enjoyed going to an activity park with his mother.[5] X also advised the Court Child Expert of the school he attends, his teachers’ names and the names of his best friends.[4] Child Impact Report dated 1 August 2022, paragraph 12.[5] Child Impact Report dated 1 August 2022, paragraph 13. X indicated that he had a close relationship with his maternal grandparents and that he felt safe in their company. When asked about his relationship with Ms D, X indicated that they played games in the car. That answer was provided in the context of the child explaining that they have to travel some distance between his mother’s house and his father’s house. The Report recorded X as being aware of tension in his parent’s relationship.[6][6] Child Impact Report dated 1 August 2022, paragraph 34. It is not in dispute that X has been diagnosed for Autism Spectrum Disorder (“ASD”) and is currently receiving assistance by way of occupational and speech therapy. While acknowledging that X has been diagnosed for ASD, the father said that he had some “doubts” about the diagnosis and thought that a review would be appropriate given that X was assessed at such a young age.[7] It has not been necessary to resolve the controversy between the parties as to the extent to which X’s behaviour is impacted by ASD in circumstances where the mother has not sought to rely upon X’s diagnosis as a reason for which she has withheld the children from the father on those dates that it is alleged she has contravened the orders.[7] Transcript 10 October 2023, p.18 line 39 to p.19 line 3.