Father Alleges Changeover Contraventions Against the Mother

Fullmer & Omeros (No 2) [2022] FedCFamC1A 110 (19 July 2022)

The father appeals from primary judge’s dismissal of multiple counts of alleged contravention against the mother. The Court, in determining whether to grant the appeal, assessed if there is a reasonable excuse for the respondent failing to comply with orders.

Facts:

X was born in 2014 (“the child”). She is now eight years old. Her parents separated when she was approximately one year old and have been involved in litigation not only in this Court, but also in state courts ever since. On repeated occasions, judges have expressed very real concern regarding the potential impact on the child of this ongoing litigation. 

On 5 November 2021, in which her Honour dismissed six counts of contravention of orders alleged by the appellant father, Mr Fullmer (“the father”) against the mother, Ms Omeros (“the mother”). The Court found that the mother had failed to comply with orders to facilitate changeover for the child to commence spending time with the father, but that she had nevertheless made reasonable attempts to comply and, further, had a reasonable excuse for failing to comply.

Two additional counts within his contravention application in which the father succeeded were in respect to incidents where the mother did not facilitate the child communicating with the father by way of electronic means.  The primary judge found, however, that those incidents were of a “less serious” nature and, accordingly, imposed no penalty on the mother.

In the context where the mother's defence of reasonable excuse for failing to comply with orders was based on ongoing disputation between the parties regarding changeover arrangements and also in respect to arrangements for electronic communication between the child and the father, the primary judge, after inviting submissions from the parties, determined that it was appropriate to amend orders previously made by the Court with a view to bringing clarity and certainty in respect to those arrangements.

The father appeals against those orders and the decision of the primary judge to dismiss his first six grounds of alleged contravention. The father has elected to proceed with this appeal in the absence of a transcript of the primary proceedings which, as explained to him in ex tempore reasons for judgment delivered by Austin J on 31 January 2022, has impeded his prospects of succeeding with the appeal. Pursuant to orders made on 6 March 2019 (“the orders”), the child is to live with the mother and spend time with the father. 

Issue:

Whether or not the appeal has merit. 

Applicable law:

Family Law Act 1975 (Cth) s 70NAE - defines reasonable excuse to include where the respondent believed “on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child)” and that the period of the contravention was “not longer than was necessary to protect the health or safety of the person”.

Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 - provides that an error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.

 

Insley & Maidment [2022] FedCFamC1A 48 - the Full Court per McClelland DCJ and Tree J noted the “essential nature of the record at first instance” in discharging the functions set out in s 35 of the FCFCOA Act.

 

Newett and Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11 - provides that unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors.

 

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 - provides that appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’. 

Analysis:

The primary judge traced the history of the parties’ dispute regarding the identification of an appropriate changeover location. The primary judge noted that the father's alleged contraventions are that the mother failed to facilitate changeover at the Suburb S library, which was the agreed changeover location prior to COVID-19 public safety measures being introduced by the Victorian government, during which the library remained closed.

The primary judge identified that, in the context of the mother's concerns, the parties had engaged in extensive communication with DD Family Services, who had been selected to supervise the changeover process. Despite extensive communication, the parties were unable to reach agreement save to the extent that on 17 and 20 July 2020 the parties agreed that, with the assistance of supervision, the changeover could occur outside the mother's home on the proviso that the father parked his car a sufficient distance away from the home in order to comply with an intervention order protecting the mother.

A reading of the relevant evidentiary material to which the father refers in his Amended Summary of Argument fails to establish any error on the part of the primary judge in dismissing alleged contravention counts one through six of the father's application. Even taking that evidence of the father at its highest, it does not detract from the primary judge’s conclusion that the mother had a reasonable excuse for failing to comply with the orders if the changeover location remained at the Suburb S library. 

Conclusion:

The Notice of Appeal filed 3 December 2021 is dismissed. No issue of costs arises.

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