Waite and Fairbank - [2011] FMCAfam 824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAITE & FAIRBANK

[2011] FMCAfam 824

FAMILY LAW – Contravention – sentencing – 19 breaches of parenting orders – Mother acted in serious disregard of orders – deliberate – wilful – mother shows no respect for relationship between Father and children – suspended jail sentence.

Family Law Act 1975, ss.70 NEA, NEC, NFA, NF(2), NFB, NEB, NAF, 117

Elspeth & Peter, Mark & Peter and John & Peter (2007) FamCA 655
Curran & Jones [2001] FamCA 1314
Parsons & Parsons [2000] FamCA 1697
R & A [2001] FamCA 619
B & W [2003] FMCAfam 114
Black & Black [2005] FMCAfam 567
Denny & Denny [2006] FMCAfam 49
Dobbs & Brayson (2007) FLC 93-346
Penfold & Penfold (1980) FLC 98-100

Applicant:

MR WAITE

Respondent:

MS FAIRBANK

File Number:

TVC 24 of 2007

Judgment of:

Willis FM

Hearing date:

7 July 2011

Date of Last Submission:

7 July 2011

Delivered at:

Mackay

Delivered on:

7 July 2011

REPRESENTATION

Solicitors for the Applicant:

Macrossan & Amiet Solicitors

Solicitors for the Respondent:

In person

ORDERS

That the mother be sentenced to a term of imprisonment for a period of one month, to be suspended immediately for a period of 18 months subject to the mother entering into a Bond.
That pursuant to section 70NEB(1)(d)/70NFB(2)(b) of the Family Law Act 1975, the mother enter into a Bond in accordance with section 70NEC/70NFC. The mother is to be of good behaviour toward the father and act in compliance with the Orders of this Court at all times.
The mother has indicated her agreement to enter into a Bond to the Court today and she will sign the Bond on Friday 8 July 2011 in the presence of the Registrar.
The mother is directed to attend upon the Registrar of the Federal Magistrates Court of Australia at Mackay for the purposes of signing the Bond at 11:00am on 8 July 2011.
That the mother pay a contribution toward the father’s cost of and incidental to these proceedings fixed in the sum of nine thousand dollars ($9,000.00) within sixty (60) days of the date of this order.
This matter be listed for mention on 30 August 2011 at 9:30am in the Federal Magistrates Court of Australia at Mackay.

IT IS NOTED that publication of this judgment under the pseudonym Waite & Fairbank is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MACKAY

TVC 24 of 2007

MR WAITE

Applicant

And

MS FAIRBANK

Respondent

REASONS FOR JUDGMENT

This matter is a matter that has been before me on a number of occasions. In my reasons for judgment delivered on 3 June 2011 in relation to the contravention applications, some 20 contraventions, I made findings that the mother was guilty of contraventions in relation to all of the contraventions except contravention number 2, in which I found that the mother had a reasonable excuse. The mother has been found guilty of contravening orders as…

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 Waite and Fairbank

Details

AGLC: Waite and Fairbank [2011] FMCAfam 824
Case: [2011] FMCAfam 824
Decision Date: 7 July 2011

CaseChat Overview and Summary

In the case of Waite and Fairbank, the Federal Magistrates Court of Australia was called upon to address a matter involving a dispute between the parents of a child. The court was tasked with making decisions regarding sentencing, compliance with court orders, and financial contributions related to the proceedings.

The court was required to determine the appropriate sentence for the mother, considering her criminal conduct, and whether a suspended sentence with specific conditions was suitable. Additionally, the court had to decide on the terms of a bond to be entered into by the mother, as mandated by the Family Law Act 1975, to ensure she complied with court orders and behaved appropriately towards the father. The court also needed to assess the financial contribution the mother should make towards the father's legal costs.

In delivering its decision, the court considered the mother's admission of guilt and her agreement to enter into a bond as outlined in the Family Law Act 1975. The court imposed a one-month imprisonment term, suspended for 18 months, contingent on the mother fulfilling the conditions of the bond. The court also mandated the mother to pay a contribution of $9,000 towards the father's legal costs within 60 days. The court scheduled a future mention to review the matter, ensuring that the mother complied with the stipulated conditions and obligations.

Orders

Orders of the court

That the mother be sentenced to a term of imprisonment for a period of one month, to be suspended immediately for a period of 18 months subject to the mother entering into a Bond.

That pursuant to section 70NEB(1)(d)/70NFB(2)(b) of the Family Law Act 1975, the mother enter into a Bond in accordance with section 70NEC/70NFC. The mother is to be of good behaviour toward the father and act in compliance with the Orders of this Court at all times.

The mother has indicated her agreement to enter into a Bond to the Court today and she will sign the Bond on Friday 8 July 2011 in the presence of the Registrar.

The mother is directed to attend upon the Registrar of the Federal Magistrates Court of Australia at Mackay for the purposes of signing the Bond at 11:00am on 8 July 2011.

That the mother pay a contribution toward the father’s cost of and incidental to these proceedings fixed in the sum of nine thousand dollars ($9,000.00) within sixty (60) days of the date of this order.

This matter be listed for mention on 30 August 2011 at 9:30am in the Federal Magistrates Court of Australia at Mackay.

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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