XENNON & FRANGOULIS - [2018] FamCA 566

FAMILY COURT OF AUSTRALIA

XENNON & FRANGOULIS

[2018] FamCA 566

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – Where the father’s time spent with the children is ordered to be subject to supervision – Where the father admits a contravention of those orders – Classification of contravention – Contravention without reasonable excuse – whether the contravention is a less serious contravention or a more serious contravention – Power to require a person to enter into a bond.

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Variation – Whether the orders permitting the father to spend supervised time with the children should be suspended pending trial – Where the father has partially but not fully complied with previous orders to attend on a therapist or to obtain a report regarding those attendances – Where the family consultant considers that the children should continue to see the father.

Family Law Act 1975 (Cth) div 13A pt VII; ss 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 70NEB, 70NEC, 70NFA(2)

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655

APPLICANT:

Ms Xennon

RESPONDENT:

Mr Frangoulis

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

4110

2015

DATE DELIVERED:

27 July 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

20 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms O'Connor SC

SOLICITOR FOR THE APPLICANT:

SE Lawyers

COUNSEL FOR THE RESPONDENT:

Mrs Lindsay

SOLICITOR FOR THE RESPONDENT:

Harry Alevizos, Solicitor & Barrister

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That within seven (7) days from the date of this order the father enter into a Bond for a period of one (1) year upon the following conditions:-
(a) Be of good behaviour during the period of the Bond;
(b) Comply with all current and future parenting orders.
That the father shall attend upon Mr B (psychologist) or if unavailable, such other therapist nominated by the Independent Children’s Lawyer (“ICL”) with expertise in the area of anger management and family violence and to comply with all instructions and further counselling and/or therapy as may be recommended by him or her.
At the completion of five (5) visits with the nominated therapist which are to occur within ten (10) weeks of the date of this order, the father is to obtain a report from the therapist as to his engagement with therapy and that he has successfully completed the five (5) visits.
If the father has not completed the five (5) visits as nominated THEN until further order, paragraph 1 of orders made 4 August 2017 shall be suspended.
Upon the provision of a report from the nominated therapist that the father has successfully engaged with the therapy, paragraph 1 of the orders made 4 August 2017 shall be amended by the deletion of the words “supervised by Mr…

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.

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Details

AGLC: XENNON & FRANGOULIS [2018] FamCA 566
Case: [2018] FamCA 566
Decision Date: 27 July 2018

CaseChat Overview and Summary

In the matter of *Xennon & Frangoulis*, Berman J of the Family Court of Australia considered a dispute concerning parenting orders and the contravention of those orders. The father admitted to contravening orders that stipulated his time with the children was to be supervised. The court was required to classify the contravention as either less serious or more serious, and to determine whether the father had a reasonable excuse for the contravention. Additionally, the court considered whether the existing orders for supervised time should be suspended pending trial, given the father's partial compliance with previous therapeutic requirements.

The central legal issues before the court were the classification of the father's admitted contravention of supervised parenting orders and the appropriate response to that contravention, including the potential for requiring the father to enter into a bond. The court also had to assess whether the father's incomplete engagement with therapy warranted the suspension of his supervised time with the children, a decision to be made in light of a family consultant's view that continued contact was beneficial.

Berman J reasoned that the father's contravention, while admitted, was not accompanied by a reasonable excuse. The court applied principles relating to the classification of contraventions under the *Family Law Act 1975* (Cth) and the court's powers to enforce parenting orders. The court ultimately ordered the father to enter into a bond for one year, requiring him to be of good behaviour and comply with all parenting orders. Furthermore, the father was directed to attend therapy with a nominated psychologist specialising in anger management and family violence, and to obtain a report confirming completion of five visits within ten weeks. Failure to do so would result in the suspension of the supervised time orders. Upon successful engagement with therapy, the supervised time orders were to be amended to reflect supervision in the "substantial presence" of the supervisors, rather than direct supervision.

Orders

Orders of the court

That within seven (7) days from the date of this order the father enter into a Bond for a period of one (1) year upon the following conditions:-

(a) Be of good behaviour during the period of the Bond;

(b) Comply with all current and future parenting orders.

That the father shall attend upon Mr B (psychologist) or if unavailable, such other therapist nominated by the Independent Children’s Lawyer (“ICL”) with expertise in the area of anger management and family violence and to comply with all instructions and further counselling and/or therapy as may be recommended by him or her.

At the completion of five (5) visits with the nominated therapist which are to occur within ten (10) weeks of the date of this order, the father is to obtain a report from the therapist as to his engagement with therapy and that he has successfully completed the five (5) visits.

If the father has not completed the five (5) visits as nominated THEN until further order, paragraph 1 of orders made 4 August 2017 shall be suspended.

Upon the provision of a report from the nominated therapist that the father has successfully engaged with the therapy, paragraph 1 of the orders made 4 August 2017 shall be amended by the deletion of the words “supervised by Mr and Mrs C” and the addition of the words “in the substantial presence of Mr and Mrs C”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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