Bertram and Bertram (No 2) - [2011] FamCA 375

FAMILY COURT OF AUSTRALIA

BERTRAM & BERTRAM (NO 2)

[2011] FamCA 375

FAMILY LAW – CONTEMPT – Contravention of Court Order – Whether this was a case involving a serious disregard – Where the mother had contravened orders – Where it was found that the mother did not have reasonable excuse for the contraventions – Court found no serious disregard – Whether requiring the mother to enter into a bond along with a costs order is an appropriate penalty – Court found that the mother not pay the father’s costs – Order that the parties undertake a post-separation parenting program.

Family Law Act Subdivision F of Part VII Division 13A, s 94A, s 70NEB(1)(a), s 11E(1)(f), s 70NEB(1)(f), s 70NEB, s 117(2A), s 117(2)

Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655

APPLICANT:

Mr Bertram

RESPONDENT:

Ms Bertram

FILE NUMBER:

SYC

2201

2010

DATE DELIVERED:

27 May 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

5 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Paul & Paul Lawyers

Orders

That each party shall attend and complete a post-separation parenting program within six months of the date of this order and provide the other party with evidence of the completion of such course.

IT IS NOTED that publication of this judgment under the pseudonym Bertram and Bertram (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 2201 of 2010

Mr Bertram

Applicant

And

Ms Bertram

Respondent

REASONS FOR JUDGMENT

Introduction

On 14 February, 2011, I heard contravention proceedings brought by Mr Bertram against Ms Bertram in which he alleged that she had contravened, on multiple occasions, final parenting orders made by his Honour Federal Magistrate Kemp on 8 June 2010, with the consent of Mr and Ms Bertram, in respect of their two young children, H, aged 7 and O, aged 5.

On 17 March, 2011, I delivered my reasons for judgment in which I concluded that Ms Bertram did, between 28 July, 2010 and 15 December, 2010, contravene various provisions of those final parenting orders as alleged by Mr Bertram and that Ms Bertram did not have reasonable excuse for the contraventions. I made an order that day that the matter be listed at a date and time to be fixed for the hearing of submissions as to which Subdivision of Division 13A of Part VII of the Family Law Act should apply in the circumstances of the contraventions found (this being the first time that a court was to impose a sanction on Ms Bertram for contravention of the primary order) and also as to penalty.

The earliest the hearing of such submissions could be conveniently arranged, given that I am based in the…

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 Bertram and Bertram (No 2)

Details

AGLC: Bertram and Bertram (No 2) [2011] FamCA 375
Case: [2011] FamCA 375
Decision Date: 27 May 2011

CaseChat Overview and Summary

In *Bertram and Bertram (No 2)*, Forrest J of the Federal Circuit and Family Court of Australia considered an application concerning post-separation parenting arrangements. The specific nature of the dispute between the parties, Bertram and Bertram, is not detailed beyond the context of post-separation parenting.

The central legal issue before the court was the appropriate orders to be made regarding the parties' engagement with post-separation parenting programs. The court was required to determine whether such an order was necessary and, if so, the terms and timeframe for its compliance.

Forrest J ordered that each party must attend and complete a post-separation parenting program within six months of the date of the order. Furthermore, the parties were directed to provide each other with evidence of their completion of the program.

Orders

Orders of the court

That each party shall attend and complete a post-separation parenting program within six months of the date of this order and provide the other party with evidence of the completion of such course.

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.