WILSON & MASON - [2012] FamCA 278

FAMILY COURT OF AUSTRALIA

WILSON & MASON

[2012] FamCA 278

FAMILY LAW - ORDERS – Contravention – finding on the balance of probabilities that the respondent contravened the order - reasonable excuse.

FAMILY LAW - ORDERS – Variation to parenting order

Family Law Act 1975 (Cth)

Childers & Leslie (2008) FLC 93-356
Feranti & Connor [2009] FamCAFC 178

APPLICANT:

Mr Wilson

RESPONDENT:

Ms Mason

FILE NUMBER:

MLC

6729

2007

DATE DELIVERED:

1 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

27 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Patricia Samson

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In person

IT IS ORDERED THAT

That paragraph 4 of the orders made on 10 June 2010 and paragraph 1 of the orders made on 26 July 2011 be varied such that all telephone calls between the father and the children shall take place between 6.00pm and 7.00pm on each Sunday with the mother being responsible for the facilitation of such telephone calls and the father being available to receive such calls.
That the Contravention Application filed by the father on 14 February 2012 and the Application in a Case filed by the father on 14 February 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Mason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6729 of 2007

Mr Wilson

Applicant

And

Ms Mason

Respondent

REASONS FOR JUDGMENT

This matter was listed for a final hearing before Cronin J on 16 January 2012 but was unable to proceed on that date. There is a significant level of conflict between the parties in this matter which was clearly evident during the proceedings before me and I have no doubt that it is that conflict that is the very genesis of this Contravention Application.
The children the subject of the order which it is alleged the mother has contravened are J (now 10 years of age) and N (now 8 years of age). The children live with the mother.
On 10 June 2011 Cronin J ordered:
that the children communicate with the father by telephone on a weekly basis on a Saturday after they have completed their soccer obligations and the mother shall facilitate such telephone call to the father notwithstanding any intervention order to the contrary.
On 26 July 2011 His Honour varied that order to provide that all telephone conversations between the father and children referred to in the order of 10 June 2011 take place at 6 pm on each Sunday, with the mother being responsible for the facilitation of such telephone call and the father being available to receive such call.
The father alleges that on each of the 23 October 2011, 30 October 2011, 6 November 2011, 20 November 2011, 27 November 2011, 1 January 2012, 8…

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 WILSON & MASON

Details

AGLC: WILSON & MASON [2012] FamCA 278
Case: [2012] FamCA 278
Decision Date: 1 May 2012

CaseChat Overview and Summary

In the matter of *Wilson & Mason*, heard before Macmillan J, the dispute concerned allegations of contravention of a parenting order and an application for variation of that order. The applicant sought findings that the respondent had contravened the existing order, while the respondent sought to vary the terms of the parenting arrangements.

The court was required to determine two primary legal issues. Firstly, whether the respondent had, on the balance of probabilities, contravened the parenting order as alleged by the applicant. Secondly, if a contravention was found, whether the respondent had a reasonable excuse for that contravention. The court also considered the separate application for variation of the parenting order.

Macmillan J found that the respondent had contravened the parenting order on the balance of probabilities. However, the court also determined that the respondent had established a reasonable excuse for the contraventions. Consequently, no further orders were made regarding the contravention, and the application for variation of the parenting order was dismissed.

Orders