Webber and Budd (No 2) - [2011] FamCA 539

FAMILY COURT OF AUSTRALIA

WEBBER & BUDD (NO 2)

[2011] FamCA 539

FAMILY LAW – CONTRAVENTION – contravention found – where the contravention was of a serious kind – where the mother is required to enter into a bond – statutorily prescribed discussion of consequences of failing to enter into a bond or failing to act in accordance with it.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Webber

RESPONDENT:

Ms Budd

FILE NUMBER:

CAC

1614

2009

DATE DELIVERED:

28 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

28 March 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Watts McCray McGuinness Eley

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

MS BUDD having this day the 28^th day of March 2011 been found by the Family Court of Australia at Sydney to have contravened without reasonable excuse an order made by this Court on 15^th day of February 2011, is hereby ordered to enter into this bond pursuant to the provisions of section 70NFE of the Family Law Act 1975.

MS BUDD

HEREBY ACKNOWLEDGES THAT SHE IS BOUND BY THIS BOND ACCORDING TO THE FOLLOWING TERMS AND CONDITIONS:

(a)This bond starts on the 29^th day of March 2011 and continues in full force and effect until the 28^th day of March 2013.

(b) The conditions of this bond are as follows:

The mother shall comply with orders made by this Court on 15 February 2011 and any variation of those orders from time to time.
To be of good behaviour during the time this bond is in force.

IT IS NOTED that publication of this judgment under the pseudonym Webber & Budd (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 1614 of 2009

Mr Webber

Applicant

And

Ms Budd

Respondent

REASONS FOR JUDGMENT

Final parenting orders were made by His Honour Justice Rose on 15 February 2011. The father filed an application for contravention on 11 March 2011 asserting that the mother had failed to comply with those orders.
The father asserted that the mother, without reasonable excuse, had failed to allow the children to spend time with him on 26 February 2011 and on 27 February 2011 and further that the mother had failed to allow the father to have telephone contact with the children on 16 February 2011, 21 February 2011, 23 February 2011, 28 February 2011 and 2 March 2011.
The father filed an affidavit on 4 March 2011 which sets out the evidence upon which the father relies to support his contentions. I accept that evidence and it is more than ample for me to find that there is a prima facie case for the mother to answer in respect of each of the seven charges.
The mother offered by way of oral evidence an explanation which she said was a reasonable excuse for the…

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 Webber and Budd (No 2)

Details

AGLC: Webber and Budd (No 2) [2011] FamCA 539
Case: [2011] FamCA 539
Decision Date: 28 March 2011

CaseChat Overview and Summary

In the matter of *Webber and Budd (No 2)*, Ms Budd was found by the Family Court of Australia at Sydney to have contravened, without reasonable excuse, an order previously made by the Court on 15 February 2011. The proceedings concerned the enforcement of family law orders.

The primary legal issue before the Court was the appropriate consequence for Ms Budd's contravention of the existing court order. Specifically, the Court was required to determine whether to impose a bond under section 70NFE of the *Family Law Act 1975* and, if so, the terms and duration of that bond.

Watts J ordered Ms Budd to enter into a bond pursuant to section 70NFE of the *Family Law Act 1975*. The bond commenced on 29 March 2011 and was to remain in force until 28 March 2013. The conditions of the bond stipulated that Ms Budd must comply with the court's order of 15 February 2011, and any variations thereof, and remain of good behaviour during the bond period. The bond was ordered to be without security.

Orders

Orders of the court

MS BUDD having this day the 28th day of March 2011 been found by the Family Court of Australia at Sydney to have contravened without reasonable excuse an order made by this Court on 15th day of February 2011, is hereby ordered to enter into this bond pursuant to the provisions of section 70NFE of the Family Law Act 1975.

MS BUDD

HEREBY ACKNOWLEDGES THAT SHE IS BOUND BY THIS BOND ACCORDING TO THE FOLLOWING TERMS AND CONDITIONS:

(a) This bond starts on the 29th day of March 2011 and continues in full force and effect until the 28th day of March 2013.

(b) The conditions of this bond are as follows:

The mother shall comply with orders made by this Court on 15 February 2011 and any variation of those orders from time to time.

To be of good behaviour during the time this bond is in force.

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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