Zeller and Whitby (No.8) - [2018] FCCA 1477

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZELLER & WHITBY (No.8)

[2018] FCCA 1477

Catchwords:
FAMILY LAW – Contraventions – child aged 9 – Contraventions proved without reasonable excuse in previous decisions – penalty phase – sentence of imprisonment – sentence of imprisonment conditionally suspended.

Legislation:

Family Law Act 1975, ss.70NEA, 70NEB, 70NFA, 117

Federal Circuit Court Rules 2001, r.21.02

Cases cited:

McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; 41 Fam LR 245; 233 FLR 179

Zeller & Whitby(No.5) [2017] FCCA 2523
Zeller & Whitby (No.6) [2017] FCCA 3314
Zeller & Whitby (No.7) [2018] FCCA 1471

Applicant:

MR ZELLER

Respondent:

MS WHITBY

File Number:

SYC 2228 of 2011

Judgment of:

Judge Monahan

Hearing date:

16 May 2018

Date of Last Submission:

16 May 2018

Delivered at:

Sydney

Delivered on:

22 May 2018

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Childrens Lawyer:

Mr Ng of Adams Partners Lawyers

ORDERS

THE COURT ORDERS THAT:

In relation to paragraph 1 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.
In relation to paragraph 2 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.
In relation to paragraph 3 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.
In relation to Finding II of the Orders made on 16 May 2018 (as amended on 21 May 2018), the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give…

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.

Keep reading for free

Create a free CaseChat account to read Zeller and Whitby (No.8) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCCA 1477
Decision Date: 22 May 2018

CaseChat Overview and Summary

This matter concerned contravention proceedings before Judge Monahan in the Family Court of Australia. The proceedings involved the Respondent Mother and the Applicant Father, and related to orders previously made concerning their child, C. The core of the dispute revolved around the Respondent Mother's alleged contravention of earlier court orders.

The court was required to determine the appropriate sentence for the Respondent Mother in relation to multiple findings of contravention of court orders made by Judge Sexton and subsequently amended. Additionally, the court needed to consider variations to existing orders concerning the disclosure of information to the child about his biological father and the process for obtaining Australian citizenship for the child. The court also had to address the payment of costs.

Judge Monahan sentenced the Respondent Mother to a total of three months imprisonment, which was wholly suspended for two years on the condition that she complied with all court orders and took necessary steps to give effect to the amended orders. The court varied paragraph 2 of the December 2017 orders to specify that a psychologist would inform the child of his biological father, with the father to bear the costs. Further orders detailed the process for this disclosure, including the father's role in collecting and returning the child. The court also varied paragraph 7 of the December 2017 orders to require both parents to sign documents to commence the child's Australian citizenship application, with specific timelines for the mother to sign and return the forms. The Respondent Mother was ordered to pay $780.00 for wasted costs and $2,350.00 for the Independent Children's Lawyer's costs. All other extant contravention applications were dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

In relation to paragraph 1 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

In relation to paragraph 2 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

In relation to paragraph 3 of the Orders made by Judge Sexton on 18 October 2017, the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

In relation to Finding II of the Orders made on 16 May 2018 (as amended on 21 May 2018), the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served concurrently with paragraph 1 herein and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

In relation to Finding I of the Orders made on 16 May 2018 (as amended on 21 May 2018), the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served consecutively thereafter and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

In relation to Finding III of the Orders made on 16 May 2018 (as amended on 21 May 2018), the Respondent Mother be sentenced to a period of imprisonment of one (1) month to be served consecutively thereafter and to be wholly suspended for a period of two (2) years from this date on condition that she complies with all Orders of the Court and in addition does all things necessary to give effect to paragraph 2 of the Orders made on 21 December 2017, as amended by these Orders.

AND THE COURT FURTHER ORDERS THAT:

Paragraph 2 of the Orders dated 21 December 2017 be varied to read as follows:

"2. The parties do all acts and things to cause a psychologist to inform the child [C] (also known as [C]) born … 2008 (“the child”) of his biological father.”

For the purposes of these Orders:

(a) The child be told of his biological heritage by Ms A and the father pay all costs associated with the appointments with Ms A by making such payments no later than 48 hours before the appointment.

(b) The Independent Children’s Lawyer advise the father and B School in writing of the date and time and location of the appointment for the child to attend upon Ms A (“the Appointment”).

(c) The father is authorised to collect the child from B School and deliver the child to Ms A immediately after collecting the child from B School and return the child to B School immediately after the conclusion of the Appointment.

The Independent Children’s Lawyer provide a copy of these Orders to B School within 72 hours from the date of these Orders.

10.

The Independent Children’s Lawyer be at liberty to provide a copy of these Orders to Ms A.

11.

Paragraph 7 of Orders dated 21 December 2017 be varied to read as follows:

“7. The mother and the father do all acts and things and sign all documents to commence the process for the child [C] (also known as [C] and [C]) born … 2008 to obtain Australian Citizenship.”

12.

For the purposes of these Orders:

(a) the Applicant Father cause the necessary citizenship application forms to be sent to the Mother by not later than 5:00pm on 29 May 2018;

(b) the Respondent Mother is under a positive obligation to sign the citizenship application forms and cause the original signed documents to be forwarded to the Father by not later than 5:00pm on 5 June 2018; and

(c) the Applicant Father thereafter forthwith lodge the citizenship application forms with the Department of Home Affairs.

13.

Within three (3) months from the date of these Orders, the Respondent Mother pay to the Applicant Father the sum of $780.00 being Ms A’s costs thrown away.

14.

Within six (6) months from the date of these Orders, the Respondent Mother pay to NSW Legal Aid the sum of $2,350.00 being the costs of the Independent Children’s Lawyer in these Contravention proceedings.

15.

All extant Contravention Applications be otherwise dismissed.

AND THE COURT NOTES THAT:

A. For the purposes of these Orders the Respondent Mother has been sentenced to a period of three (3) months imprisonment in total which is wholly suspended for a period of two (2) years on the conditions stated above.

B. In the event that the Mother fails to comply with the conditions of the suspended sentence stated above, then a Warrant for Commitment can be issued for the Mother to serve the imprisonment term.

C. These Orders were made by the Court following the delivery of ex tempore reasons today.

D. Judge Sexton dismissed the Father’s application for costs on 18 October 2017.

E. The matter remains listed on 10 July 2018 before Judge Henderson.

F. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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.