FEDERAL CIRCUIT COURT OF AUSTRALIA
| WATKINS & WATKINS | [2014] FCCA 2104 |
| Catchwords: FAMILY LAW – Children – contravention – consent to vary the order before breach – order open to two interpretations – reasonable excuse, respondent ought reasonably be excused. |
| Legislation: Family Law Act 1975, s.70NAE |
| Hale & Hale [2011] FMCAfam 1107 |
| Applicant: | MR WATKINS |
| Respondent: | MS WATKINS |
| File Number: | BRC 8468 of 2009 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 17 July 2014 |
| Date of Last Submission: | 17 July 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 24 September 2014 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | In person |
ORDERS
That the amended application for contravention filed 12 June 2014 be dismissed.
That all changeovers in relation to the child X born (omitted) 2009 occur with the father to collect the child from the (omitted) State School at the beginning of his time and the mother to collect the child from Gloria Jeans, (omitted) at the conclusion of such time.
IT IS NOTED that publication of this judgment under the pseudonym Watkins & Watkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8468 of 2009
| MR WATKINS |
Applicant
And
| MS WATKINS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application made by the father for contravention in relation to an order that was made by the Court on 30 October 2013.
Of the contraventions that were proceeded with, the mother admitted each of them but indicated that she had a reasonable excuse.
The Material
The father relied upon the following material:
a)The amended application for contravention filed 12 June 2014; and
b)The affidavit of Mr Watkins filed 12 June 2014.
The mother relied upon the following material:
a)The affidavit of Ms Watkins filed by leave on 17 July 2014.
The Law
The law in relation to contraventions has been carefully described by Federal Magistrate Brown, as he then was, in Hale & Hale [2011] FMCAfam 1107:
“The legal framework applicable
[39] Division 13A is the part of the Family Law Act 1975 which deals with the consequences of a failure to comply with orders, and other obligations, that affect children. Pursuant to section 70NAA(1), the division empowers the court to make orders “to enforce compliance with orders [made] under this act affecting children.” This power includes the authority to vary any order earlier made. These powers are contained in Subdivision B of Div 13A.
[40] The expression “order under this Act affecting children” is defined in section 4. It includes a parenting order. There is no controversy, in this case, that the orders of 21 August 2009 and the amending order of 14 December 2009 are parenting orders.
[41] Pursuant to section 70NAC, a person is taken to have contravened such an order “if, and only if:
(a) where the person is bound by the order — he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no…
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- Watkins and Watkins [2014] FCCA 2104
- Case
- [2014] FCCA 2104
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether a contravention of existing parenting orders had occurred. Implicitly, the court was also required to consider the appropriate orders to make in light of its determination on the contravention application, particularly concerning the practical arrangements for the child's changeovers.
Judge Cassidy dismissed the amended application for contravention. The court then made new orders regarding the child's changeovers, specifying that the father was to collect the child from the relevant State School at the commencement of his time with the child. Conversely, the mother was ordered to collect the child from Gloria Jeans at the conclusion of the father's time.
Orders
Orders of the court
1.
That the amended application for contravention filed 12 June 2014 be dismissed.
2.
That all changeovers in relation to the child X born (omitted) 2009 occur with the father to collect the child from the (omitted) State School at the beginning of his time and the mother to collect the child from Gloria Jeans, (omitted) at the conclusion of such time.
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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