Zane & Ikeda (No 2) - [2022] FedCFamC2F 1395

Federal Circuit and Family Court of Australia
(DIVISION 2)
Zane & Ikeda (No 2) [2022] FedCFamC2F 1395

File number(s): MLC 3391 of 2018

Judgment of: JUDGE HARLAND

Date of judgment: 17 October 2022

Catchwords: FAMILY LAW – CONTRAVENTION – penalty hearing– costs – more serious category of contravention

Legislation: Family Law Act 1975 (Cth) pt VII, ss 60I, 64B(2)(g), 70NEB, 70NFB, 70NFE

Cases cited:
B & W (No 1) [2003] FMCAfam 101

Brown & Brown [2005] FMCAfam 567

[D & D] [2005] FamCA 141

Davis & Davis [2006] FMCAfam 49

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

H & V [2005] FMCAfam 519

Zane & Ikeda [2022] FedCFamC2F 867

Division: Division 2 Family Law

Number of paragraphs: 31

Date of hearing: 28 September 2022

Place: Melbourne

Counsel for the Applicant: Mr Glezakos

Solicitor for the Applicant: Leslie Family Law

Counsel for the Respondent: In person
ORDERS

MLC 3391 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ZANE

Applicant

AND:
MS IKEDA

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

17 October 2022

Amended pursuant to Rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 21 October 2022.
THE COURT ORDERS THAT:
1.Within 30 days of the date of these orders, the Respondent mother is to attend upon a Registrar at the Melbourne Registry of the Federal Circuit and Family Court of Australia to enter into a bond pursuant to the provisions of section 70NFE of the Family Law Act 1975 (Cth), with the following conditions:
(a)Such bond to be for a period of 24 months;
(b)The Respondent mother to be of good behaviour for the period of the bond;

AND IT IS DIRECTED THAT:
2.The Registrar explain to the Respondent mother:
(a)The purpose and effect of order 1; and
(b)The consequences that may follow if the Respondent mother fails to enter into the bond or having entered into the bond, fails to act in accordance with it.

AND THE COURT FURTHER ORDERS THAT:
3.Pursuant to section 70NBA of the Act:
(a)Order 16 of the Final Orders dated 26 November 2020 be discharged;
(b)Order 5 of the Final Orders dated 26 November 2020 insofar as it relates only to the child Y born in 2007 be discharged;
(c)The child X born in 2010 spend time and communicate with the Respondent mother at such times and on such conditions (including but not limited as to frequency, duration and supervision) as determined by the Applicant Father in writing, such time or communication to be initiated by the Applicant Father who is to have regard to X’s wishes in making such determination; and
(d)The Final Orders dated 26 November 2020 otherwise remain in full force and effect.

4.Pursuant to section 70NFB(2)(g) of the Act, the Respondent mother pay the Applicant father’s costs of these proceedings on an indemnity basis in the sum of $23,737 by 23 monthly instalments of $1,032 per month.

AND THE COURT…

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 Zane & Ikeda (No 2)

Details

AGLC: Zane & Ikeda (No 2) [2022] FedCFamC2F 1395
Case: [2022] FedCFamC2F 1395
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered the case of Zane v Ikeda, where the father, Zane, brought a contravention application against the mother, Ikeda. Zane alleged that Ikeda had contravened parenting orders in various ways, including by messaging the children without his consent and coaching them against him. The court found 40 counts proved against Ikeda without reasonable excuse and dismissed 13 counts. The court was required to decide whether the contraventions fell into the less serious or more serious category, and whether to impose penalties such as a bond and order Ikeda to pay Zane's costs. The court found that the contraventions were more serious in nature due to the persistent disregard of obligations and the potential for psychological and emotional harm to the children. The court ordered Ikeda to enter into a bond for two years to be of good behaviour and to comply with the orders, and to pay Zane's costs on an indemnity basis in the sum of $23,737 by 23 monthly instalments of $1,032 per month.

The court considered the nature of the harm identified by the court was and continues to be psychological and emotional harm to the children. The court acknowledged when taking the drastic step of changing the children’s residence and further it was always acknowledged that this might not be successful but there were real long term risks to the girls’ long term psychological and emotional wellbeing if nothing was done. It is apparent that Y has suffered significant mental health issues and continues to. It is significant that one of the goals noted in the plan to commence on 30 August 2022 and being in progress is to support Y having less presentations to the J Hospital and less crisis interventions. The fact that Y is intelligent and is doing well academically does not detract from the clearly serious concerns for Y’s long term wellbeing.

The court also considered the mother’s understanding of the seriousness of her contraventions and the importance of ensuring she complies with the orders in the future. The court considered that it is appropriate to require the mother to enter into a bond for two years to emphasise the importance of the mother complying with orders. The court further considered the costs order and found that the contraventions fell within the more serious category and ordered Ikeda to pay Zane's costs in the sum of $23,737.00. Zane proposed that Ikeda pay his costs by way of monthly instalments of $1,000.00 acknowledging his higher income. He further proposed that this could be offset from his monthly child support obligations which are currently $927.25. That would effectively require the mother to pay $72.75 a month subject to any changes to the father’s child support assessment. It will be a matter for the parties if they agree to offset these sums in that manner as agreed between them.

Orders