WALLINGTON & WALLINGTON (No.5) - [2020] FCCA 2660

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLINGTON & WALLINGTON (No.5)

[2020] FCCA 2660

Catchwords:
FAMILY LAW – Contravention – sentencing.

Legislation:

Family Law Act 1975 (Cth), ss.70NAB, 70NAC

Applicant:

MR WALLINGTON

Respondent:

MS WALLINGTON

File Number:

NCC 1402 of 2014

Judgment of:

Judge Dunkley

Hearing dates:

27 August 2020

Date of Last Submission:

27 August 2020

Delivered at:

Parramatta

Delivered on:

23 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr J. Horowitz

Counsel for the Respondent:

Ms L. Hamilton

Solicitors for the Respondent:

Michael Jokovic & Associates

ORDERS

MS WALLINGTON, having on 7 August 2020 been found to have contravened in 4 counts parenting orders made on 25 January 2017, is sentenced as follows:
(a)With respect to count 9 laid on 3 February 2020 to enter into a bond pursuant to s.70NEB(1)(d) for a period of 12 months from the date hereof without surety with the conditions to be of good behaviour and pursuant to s.70NEC(4)(b) attend 5 sessions with a family counsellor as defined in s.10C within 12 months.
(b)With respect to each of counts 5, 7 and 11 laid on 3 February 2020 to enter into a bond pursuant to s.70NFB(2)(b) for a period of 18 months from the date hereof with surety in each case of $333.00 and with a condition of being of good behaviour.
The terms of the bonds in orders 1(a) and 1(b) are to be served concurrently.
The bonds are to be entered into forthwith and the surety is to be paid to the Collector of Public Monies at the Federal Circuit Court at Parramatta within 14 days of the date hereof.
If there is no proven breach of the bonds in order 1(b), the surety is to be refunded to Ms Wallington on effluxion of the bond period.
Pursuant to s.70NDB, in addition to time provided for in existing parenting orders Y born in 2012 shall spend compensatory time with her father for 3 additional nights during each term school holiday at the end of Term 3 in 2020, Term 4 in 2020 and Term 1 in 2021 and 2 nights at the end of Term 2 in 2021, such that the time in Terms 1 and 3 provided for in orders made on 23 May 2019 shall extend to 12 noon on the second Tuesday of those school holidays, and end at 12 noon on the second Tuesday of the Term 4 school holidays and end at 12 noon on the second Monday of the Term 2 school holidays.
Ms Wallington shall by 23 September 2021 complete either an online or an in person post separation parenting course of not less than 5 sessions.
(a) Ms Wallington shall ensure X born in 2010 has weekly sessions with the child’s psychologist, Ms E, for 2 months from the date hereof relevant to that child’s recent admission to F Hospital as a consequence of the child self‑harming.
(b)Ms Wallington shall direct X’s psychologist, Ms E, to prepare after 8 sessions a comprehensive treatment report…

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 WALLINGTON & WALLINGTON (No.5)

Details

AGLC: Wallington and Wallington (No.5) [2020] FCCA 2660
Case: [2020] FCCA 2660
Decision Date: 23 September 2020

CaseChat Overview and Summary

In the matter of *Wallington & Wallington (No.5)*, Judge Dunkley of the Federal Circuit Court of Australia considered the sentencing of Ms Wallington, who had previously been found to have contravened parenting orders on four counts. The dispute concerned the appropriate consequences for these contraventions.

The court was required to determine the appropriate sentence for Ms Wallington's contraventions of parenting orders. This involved considering the nature of the contraventions and the relevant provisions of the Family Law Act 1975 (Cth) concerning contravention and sentencing.

Judge Dunkley applied the provisions of the Family Law Act 1975 (Cth) to sentence Ms Wallington. For one contravention, she was ordered to enter into a 12-month bond with conditions to be of good behaviour and attend family counselling. For three other contraventions, she was ordered to enter into 18-month bonds with conditions of good behaviour and a surety. These bonds were to be served concurrently. Additionally, compensatory time was ordered for the child Y with her father, and Ms Wallington was directed to complete a post-separation parenting course. The court also made orders regarding the child X's psychological treatment and suspended X's time with her father pending further order.

Orders

Orders of the court

MS WALLINGTON, having on 7 August 2020 been found to have contravened in 4 counts parenting orders made on 25 January 2017, is sentenced as follows:

(a) With respect to count 9 laid on 3 February 2020 to enter into a bond pursuant to s.70NEB(1)(d) for a period of 12 months from the date hereof without surety with the conditions to be of good behaviour and pursuant to s.70NEC(4)(b) attend 5 sessions with a family counsellor as defined in s.10C within 12 months.

(b) With respect to each of counts 5, 7 and 11 laid on 3 February 2020 to enter into a bond pursuant to s.70NFB(2)(b) for a period of 18 months from the date hereof with surety in each case of $333.00 and with a condition of being of good behaviour.

The terms of the bonds in orders 1(a) and 1(b) are to be served concurrently.

The bonds are to be entered into forthwith and the surety is to be paid to the Collector of Public Monies at the Federal Circuit Court at Parramatta within 14 days of the date hereof.

If there is no proven breach of the bonds in order 1(b), the surety is to be refunded to Ms Wallington on effluxion of the bond period.

Pursuant to s.70NDB, in addition to time provided for in existing parenting orders Y born in 2012 shall spend compensatory time with her father for 3 additional nights during each term school holiday at the end of Term 3 in 2020, Term 4 in 2020 and Term 1 in 2021 and 2 nights at the end of Term 2 in 2021, such that the time in Terms 1 and 3 provided for in orders made on 23 May 2019 shall extend to 12 noon on the second Tuesday of those school holidays, and end at 12 noon on the second Tuesday of the Term 4 school holidays and end at 12 noon on the second Monday of the Term 2 school holidays.

Ms Wallington shall by 23 September 2021 complete either an online or an in person post separation parenting course of not less than 5 sessions.

(a) Ms Wallington shall ensure X born in 2010 has weekly sessions with the child’s psychologist, Ms E, for 2 months from the date hereof relevant to that child’s recent admission to F Hospital as a consequence of the child self‑harming.

(b) Ms Wallington shall direct X’s psychologist, Ms E, to prepare after 8 sessions a comprehensive treatment report relevant to the child X and provide a copy of that report to the father and to the Court.

Pursuant to s.70NBA and pending further order, the time X born in 2010 is to spend with her father, is suspended.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.