FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Virtanen & Ferreyra (No 2) [2024] FedCFamC1F 104
File number: BRC 1134 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 1 March 2024 Catchwords: FAMILY LAW – CONTRAVENTION – Where it was proved that the mother contravened the final parenting consent orders on 10 counts – Issue of penalty – Orders made by consent for the mother to attend a post-separation parenting program and for the children to spend compensatory time with the father – Whether the mother should enter into a bond – Where the father submits it is appropriate for the Court to deal with the matter pursuant to Subdivision E, of Division 13A of Pt VII of the Family Law Act 1975 (Cth) which are considered “less serious contravention” – Where it is not appropriate for the mother to be placed on a “good behaviour” bond – Mother to enter into a bond of one year on the condition that she comply with all parenting orders – Where the mother has the financial burden to pay for the costs of the children – Mother to forfeit $500 if she is in breach of the bond.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the Court is empowered to vary the current parenting orders pursuant to s 70NBA of the Family Law Act 1975 (Cth) – Matter set down for final hearing – Trial directions.
FAMILY LAW – COSTS – Where the father seeks costs in a fixed sum following the completion of the contravention hearing – Mother has modest means – Mother ordered to pay costs of father in fixed sum of $1,000.
Legislation: Family Law Act1975 (Cth) Pt VII, Div 13A, ss 70NBA, 70NEA, 70NEB, 70NEC, 70NECA, 70NED, 70NEF, 70NEG, 117 Cases cited: Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Dowse v Gorringe [2004] QDC 477
Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341; [2007] FamCA 1072
Glassop & Glassop [2015] FCCA 3437
Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87
Legal Aid ACT & Westwell (2021) 62 Fam LR 546; [2021] FamCAFC 50
McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62
Randal & Karpati and Anor (No 2) [2019] FamCA 335
Virtanen & Ferreyra [2023] FedCFamC1F 1078
Division: Division 1 First Instance Number of paragraphs: 56 Date of last submissions: 13 February 2024 Date of hearing: Determined on the papers Place: Sydney Counsel for the Applicant: Ms Davison Solicitor for the Applicant: BGM Family Lawyers 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:
1 MARCH 2024
BY CONSENT, THE COURT ORDERS THAT:
Post-separation parenting program
1.Pursuant to s 70NEB(1) of the Family Law Act 1975 (Cth) (“the Act”), the respondent mother:
1.1attend and complete, as soon as practicable, a Post…
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CaseChat Overview and Summary
The court considered the mother's contraventions and the impact on the children. It was established that the mother had withheld the children from the father for an extended period, significantly impacting the father's access to his children. The father submitted that the contraventions were less serious and recommended the court deal with the matter under Subdivision E, Division 13A of Part VII of the Family Law Act 1975 (Cth). The court determined that it was not appropriate to place the mother on a "good behaviour" bond but instead ordered her to enter into a bond for one year, requiring her to comply with all parenting orders. The mother was also required to forfeit $500 if she breached the bond. Additionally, the court ordered the mother to attend a post-separation parenting program and for the children to spend compensatory time with the father. The mother was also ordered to pay the father's costs in a fixed sum of $1,000.
The court's reasoning was grounded in the need to protect the children's best interests and ensure compliance with the parenting orders. The court emphasised the importance of the father's role in the children's lives, particularly in relation to the children's medical and therapeutic needs. The court further noted that the mother had the financial burden to pay for the costs of the children. The court concluded that the orders made would best serve the children's welfare and ensure that the mother complied with the parenting orders in the future.
In summary, the court ordered the mother to attend a post-separation parenting program, for the children to spend compensatory time with the father, and for the mother to enter into a bond for one year with a financial penalty for any breaches. The mother was also ordered to pay part of the father's costs. The final hearing was set for 17 June 2024, with specific trial directions provided for the preparation and conduct of the hearing.
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:
1 MARCH 2024
BY CONSENT, THE COURT ORDERS THAT:
Post-separation parenting program
1. Pursuant to s 70NEB(1) of the Family Law Act 1975 (Cth) (“the Act”), the respondent mother:
1.1 attend and complete, as soon as practicable, a Post Separation Parenting Orders Program;
1.2 will attend at the organisation at such times as requested by the organisation;
1.3 will, upon completion provide a copy of certificate of completion of the program to the solicitors for the applicant father within twenty-eight (28) days of completion; and
1.4 will pay for the cost of the program.
Compensatory time between the children and the applicant father
2. Pursuant to s 70NEB of the Act, X born 2017 and Y born 2019 (hereinafter referred to as “the children”) will spend compensatory time with the applicant father pursuant to subsection 70NEB(4) of the Act as follows:
2.1 In the March/April 2024 school holidays, June/July 2024 school holidays, September 2024 school holidays, and March/April 2025 school holidays:
2.1.1 From after school on the final day of the relevant school terms, until 5.00 pm on the last Thursday of the applicable gazetted school holiday period, with changeover to occur pursuant to the final order made on 9 August 2022.
2.2 For the purpose of the children’s compensatory time with the applicant father, the time provided for in the final order made on 9 August 2022 will be suspended, and time will recommence at the conclusion of the children’s compensatory time with the applicant father as though there had been no suspension (such that the usual sequence of care is not disrupted).
3. During the applicant father’s compensatory time, the applicant father will continue to ensure the children’s attendance at regular treatment with medical, allied health or mental health professionals, specifically X’s engagement with therapists for his Autism Spectrum Disorder (ASD).
4. For the purpose of paragraph 3 above, the respondent mother will confirm the names of the children’s treating medical practitioners and any other relevant details within seven (7) days from the date of this Order.
THE COURT FURTHER ORDERS THAT:
5. Pursuant to s 70NEB of the Act, the respondent mother is required to enter into a bond pursuant to s 70NEC of the Act for a period of one (1) year on the following conditions:
5.1 that she complies with all parenting orders made and to be made under the Act;
5.2 that in the event that the respondent mother breaches the condition of that bond, she will then forfeit to the Commonwealth of Australia the sum of $500.
6. The respondent mother will attend the Brisbane Registry on a date to be fixed to sign the bond in the presence of a Judicial Registrar or other judicial officer of this Court.
7. Pursuant to s 70NEB(f) of the Act, the mother pay part of the father’s costs in the sum of $1,000 within 12 months of the date of these orders.
Trial directions
8. The matter is listed for hearing before the Honourable Deputy Chief Justice McClelland at 10.00 am, 17 June 2024 with an estimated hearing time of two (2) days.
9. No later than 4.00 pm on 6 May 2024, the applicant and the respondent file and serve:
9.1 a single consolidated trial affidavit;
9.2 other witness affidavits upon which they intend to rely.
10. Each party will be permitted to rely on one consolidated trial affidavit. Reliance on earlier or additional affidavits, will not be permitted.
11. All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
12. The parties have liberty to issue up to five (5) subpoenas each.
13. Any subpoena for production issued in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) shall be made returnable no later than 21 days before the commencement of the trial.
14. Unless objection is taken in accordance with the Rules, or a party gives notice in relation to medical records in accordance with the Rules, all parties have liberty to inspect, copy, and receive electronic copies of all subpoena material and arrangements for this should be made at least 14 days prior to the final hearing.
15. Not later than 4.00 pm on 10 June 2024, each of the applicant and the respondent is to prepare and serve a bundle of copies of documents not annexed to their affidavits, arranged chronologically, paginated and indexed, proposed to be tendered at the hearing, subject to objections.
16. If either party proposes to have the relevant Court Child Expert available for cross‑examination purposes at the final hearing, then such party is to notify the relevant Court Child Expert of his or her need to attend Court no less than 14 days prior to the final hearing.
17. The parties have liberty to provide to the Court Child Expert copies of the parties’ trial affidavits and any material produced under subpoena or pursuant to orders made under section 69ZW of the Family Law Act, with such material to be agreed by the parties.
18. No later than 4.00 pm on 10 June 2024, all parties are to file and serve a case outline document, of no more than 10 pages in length, which shall include:
18.1 a final Minute of Orders sought;
18.2 a list of the material relied upon;
18.3 a bullet point statement of the issues to be determined in the proceedings
18.4 a brief chronology listing significant events that are material to the issues to be determined by the Court;
18.5 A summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the children to make the orders sought.
19. Not later than 2 days prior to the commencement of the trial, the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time, including oral submissions.
20. In the event that the trial directions contained in Orders 8–19 above are not suitable, the parties are granted liberty to apply on apply on forty-eight (48) hours’ written notice to my Chambers and to the other parties.
THE COURT NOTES THAT:
A. Further information relevant to Post-Separation Parenting Orders Programs in Queensland can be accessed at www.familyrelationships.gov.au
B. Pursuant to s 102NA(1) of the Act, on 13 September 2023, the Court made an order that the requirements of subsection (2) are to apply to the cross-examination.
C. The parties have each been advised by the Court that:
a. pursuant to those requirements, neither party may cross-examine the other party personally;
b. pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
c. as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
d. a copy of these orders will be provided by the Court to Legal Aid Queensland, which administers the said scheme.
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Following confirmation that the issue would be determined on the papers, the parties communicated to chambers on 19 February 2024 that they have agreed to the following orders being made by consent and provided a Minute of Order as follows:Post-separation parenting program1.That pursuant to section 70NEB (1) of the Family Law Act 1975 (Cth) (“the Act”) the respondent mother will attend a post-separation parenting program and: 1.1the program will occur at an organisation as nominated by the Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia;1.2.the respondent mother will attend at the organisation at such times as requested by the organisation;1.3.the respondent mother will, upon completion provide a copy of certificate of completion of the program to the solicitors for the applicant father within twenty-eight (28) days of completion; and 1.4. the respondent mother will pay for the cost of the program. Compensatory time between the children and the Applicant Father 2.That pursuant to section 70NEB of the Act, [X] born […] 2017 and [Y] born […] 2019 (hereinafter referred to as “the children”) will spend compensatory time with the applicant father pursuant to subsection 70NEB(4) of the Act as follows:2.1In the March / April 2024 school holidays, June / July 2024 school holidays, September 2024 school holidays, and March / April 2025 school holidays:2.1.1From after school on the final day of the relevant school terms, until 5pm on the last Thursday of the applicable gazetted school holiday period, with changeover to occur pursuant to the final order made on 9 August 2022.2.3For the purpose of the children’s compensatory time with the applicant father, the time provided for in the final order made on 9 August 2022 will be suspended, and time will recommence at the conclusion of the children’s compensatory time with the applicant father as though there had been no suspension (such that the usual sequence of care is not disrupted). 3.During the Applicant Father’s compensatory time, the Applicant Father will continue to ensure the children’s attendance at regular treatment with medical, allied health or mental health professionals, specifically [X’s] engagement with therapists for his Autism Spectrum Disorder (ASD).4.For the purpose of paragraph 3 above, the Respondent Mother will confirm the names of the children’s treating medical practitioners and any other relevant details within seven (7) days from the date of this Order. Accordingly, I will make orders in terms agreed by the parties in respect to those issues that have been resolved. However, I will amend the structure of Order 1, including proposed Order 1.1 to reflect the practicality that the Court does not employ a “Dispute Resolution Coordinator of the Federal Circuit and Family Court of Australia” to assist litigants to enrol in a post-separation parenting course. Therefore, I will amend to order the mother to “attend and complete, as soon as practicable, a Post Separation Parenting Orders Program” and will include a notation of the appropriate services provided in Queensland.ISSUES TO BE RESOLVED