Watkins and Watkins - [2014] FCCA 2104

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…

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 Watkins and Watkins

Details

AGLC: Watkins and Watkins [2014] FCCA 2104
Case: [2014] FCCA 2104
Decision Date: 24 September 2014

CaseChat Overview and Summary

In *Watkins and Watkins*, heard by Judge Cassidy, the dispute concerned an application for contravention filed on 12 June 2014, relating to a child born in 2009. The specific nature of the contravention alleged is not detailed in the provided text, but the court's orders indicate it related to child-related arrangements.

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

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.

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.