Forbes and Perry - [2011] FMCAfam 194

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FORBES & PERRY

[2011] FMCAfam 194

FAMILY LAW – Contravention proceedings – whether mother had reasonably excuse.

Family Law Act 1975, ss.70NEB; 70NDA; 71NAD; 65N

Childers & Leslie [2008] FamCAFC 5

Applicant:

MR FORBES

Respondent:

MS PERRY

File Number:

SYC 479 of 2010

Judgment of:

Walker FM

Hearing date:

19 January 2011

Date of Last Submission:

19 January 2011

Delivered at:

Sydney

Delivered on:

15 February 2011

REPRESENTATION

Solicitors for the Applicant:

Self-Represented

Solicitors for the Respondent:

Self-Represented

THE COURT ORDERS THAT:

a finding be recorded that the mother on 5 September 2010, without reasonable excuse, contravened order 2(e) of the orders made on 2 August 2010.
a finding be recorded that the mother on 6 September 2010, without reasonable excuse, contravened order 2(f) of the orders made on 2 August 2010.
a finding be recorded that the mother on 13 September 2010, without reasonable excuse, contravened order 2(g) of the orders made on 2 August 2010.
a finding be recorded that the mother on 15 November 2010, without reasonable excuse, contravened order 2(i) of the orders made on 2 August 2010.
pursuant to section 70NEB(1)(b) of the Family Law Act1975 (Cth), unless otherwise agreed, the child, [X] born [in] 2004, is to spend eight (8) hours of compensatory time with his father and that such compensatory time should be provided by extending [X]’s time with his father by a period of two (2) hours on each of the next four (4) occasions upon which he spends time with his father following the making of these orders;
should arrangements for [X]’s changeover between his parents at a Contact Centre not allow for such an extension of time as provided for in Order 2, unless otherwise agreed, the father’s compensatory time is to be implemented by the father giving the mother twenty-one (21) days written notice of a day when he is available to spend eight (8) hours with [X]. Provided the father gives such notice, the mother is required to make [X] available to spend the time with his father at the date and times nominated by the father in accordance with these orders.

IT IS NOTED that publication of this judgment under the pseudonym Forbes & Perry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 479 of 2010

MR FORBES

Applicant

And

MS PERRY

Respondent

REASONS FOR JUDGMENT

The father filed a Contravention Application on 28 October 2010 and a further Contravention Application on 30 November 2010. These applications both allege that the mother contravened parenting orders of 2 August 2010 which were interim consent orders made between the parties and the Independent Children’s Lawyer.
Order 1 of the orders made on 2 August 2010 provides that the child, [X], born [in] 2004, live with his mother.
Order 2 is as follows:
That the child spend time with the father supervised by either

Ms F or Mr F at [E]…

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 Forbes and Perry

Details

AGLC: Forbes and Perry [2011] FMCAfam 194
Case: [2011] FMCAfam 194
Decision Date: 15 February 2011

CaseChat Overview and Summary

The case of Forbes and Perry involves a dispute between the mother and father of a child born in 2004. The father sought to enforce existing orders regarding the child’s time and to impose additional compensatory time with the father. The case was heard in the Family Court of Australia.

The primary legal issues addressed by the court were whether the mother had contravened specific orders made on 2 August 2010 and whether the father was entitled to compensatory time. The court needed to determine if the mother's actions constituted a breach of the specified orders and, if so, what the appropriate remedy would be under section 70NEB(1)(b) of the Family Law Act 1975 (Cth).

The court found that the mother had contravened the orders on four separate occasions: 5 September, 6 September, 13 September, and 15 November 2010. The court found these breaches occurred without reasonable excuse. Given the established breaches, the court determined that the father was entitled to compensatory time. The court ordered that the child should spend eight hours of compensatory time with the father. This was to be achieved by extending the child’s time with the father by two hours on each of the next four occasions the child spends time with the father following the making of these orders. If the Contact Centre arrangements did not allow for such an extension, the father was to give the mother 21 days' written notice of a day when he was available to spend eight hours with the child, with the mother required to make the child available at the nominated time.

The court also made several findings as orders, including that the mother contravened specific orders on the dates mentioned, and that the child should spend compensatory time with the father under the conditions set out in the orders.

Orders

Orders of the court

a finding be recorded that the mother on 5 September 2010, without reasonable excuse, contravened order 2(e) of the orders made on 2 August 2010.

a finding be recorded that the mother on 6 September 2010, without reasonable excuse, contravened order 2(f) of the orders made on 2 August 2010.

a finding be recorded that the mother on 13 September 2010, without reasonable excuse, contravened order 2(g) of the orders made on 2 August 2010.

a finding be recorded that the mother on 15 November 2010, without reasonable excuse, contravened order 2(i) of the orders made on 2 August 2010.

pursuant to section 70NEB(1)(b) of the Family Law Act 1975 (Cth), unless otherwise agreed, the child, [X] born [in] 2004, is to spend eight (8) hours of compensatory time with his father and that such compensatory time should be provided by extending [X]’s time with his father by a period of two (2) hours on each of the next four (4) occasions upon which he spends time with his father following the making of these orders;

should arrangements for [X]’s changeover between his parents at a Contact Centre not allow for such an extension of time as provided for in Order 2, unless otherwise agreed, the father’s compensatory time is to be implemented by the father giving the mother twenty-one (21) days written notice of a day when he is available to spend eight (8) hours with [X]. Provided the father gives such notice, the mother is required to make [X] available to spend the time with his father at the date and times nominated by the father in accordance with these orders.

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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