Mitty & Mitty

Case [2012] FamCA 329

FAMILY COURT OF AUSTRALIA

MITTY & MITTY [2012] FamCA 329

FAMILY LAW - ORDERS - Contravention - where there is a positive obligation on the mother to comply with parenting orders - where the mother, by way of reasonable excuse for failing to deliver one of the children to spend time with the father, gave evidence that the 6 year old child did not want to see the father - where this was insufficient to constitute a reasonable excuse - found that the mother contravened court orders by failing to facilitate telephone and skype communication between the father and the children, failing to deliver one of the children to spend time with the father, and failing to inform the father of a medical condition of one of the children

FAMILY LAW - COSTS - Between parties - where the mother seeks orders that the father pay her costs thrown away by virtue of the father not being ready to proceed when the matter first came before the court - where the subject of proceedings was the mother’s failure to comply with orders of the court - mother’s application dismissed
Family Law Act 1975 (Cth) s 70NEB
Simpson & McDaniels [2011] FamCA 1041
Stevenson & Hughes (1993) FLC 92-363
APPLICANT: Mr Mitty
RESPONDENT: Ms Mitty
FILE NUMBER: SYC 8326 of 2007
DATE DELIVERED: 3 May 2012
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Rees J
HEARING DATE: 22 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person
COUNSEL FOR THE RESPONDENT: Mr Batey
SOLICITOR FOR THE RESPONDENT: Pearson Family Lawyers

Orders

IT IS ORDERED

  1. That the respondent must within 14 days contact the program provider, AB Parenting Orders Program (“the provider”) at …, Queensland, and arrange an appointment on or before 14 June 2012 for an initial assessment as to suitability for the post separation parenting program called “…– Parenting Orders Program” or such other program as may be recommended by the provider.

  2. That the respondent must attend the appointment for the initial assessment at any reasonable time and place nominated by the provider.

  3. That if assessed as suitable for the program or part of a program, and the program provider nominates a particular program for the respondent to attend, she must attend that program or part of the program (as the case may be) as soon as practicable.

  4. That the respondent notify the applicant in writing and provide documentary confirmation from the program provider of the dates upon which she complies with Orders 1 and 2.

  5. That the respondent notify the applicant forthwith and provide documentary confirmation from the program provider of the result of the assessment referred to in Order 3.

  6. That the respondent notify the applicant forthwith and provide documentary confirmation from the service provider upon the completion of the program referred to in Order 3.

  7. That the application by the respondent that the applicant pay her costs of 21 December 2011 be dismissed.

IT IS DIRECTED

  1. That the principal executive officer of the Family Court…

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Mitty & Mitty [2012] FamCA 329
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[2012] FamCA 329
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CaseChat Overview and Summary

In the Family Court of Australia, Rees J considered a dispute concerning the mother's alleged contravention of parenting orders. The mother had failed to facilitate telephone and Skype communication between the father and the children, failed to deliver one of the children for time with the father, and failed to inform the father of a child's medical condition. The mother sought costs thrown away due to the father's unpreparedness on a previous court date.

The court was required to determine whether the mother had contravened the parenting orders and, if so, whether she had a reasonable excuse for her non-compliance. Specifically, the court had to assess the mother's assertion that a six-year-old child's unwillingness to see the father constituted a reasonable excuse for failing to deliver the child for time with the father. The court also had to consider the mother's application for costs.

Rees J found that the mother had contravened the parenting orders. The court determined that the six-year-old child's reluctance to see the father was insufficient to constitute a reasonable excuse for the mother's failure to facilitate time with the father. The court dismissed the mother's application for costs, finding that the proceedings were primarily concerned with her failure to comply with court orders. The court made various orders requiring the mother to engage with a parenting program and to notify the father of her compliance, and directed the court to be informed of any non-compliance with these orders.

Orders

Orders of the court

IT IS ORDERED

1.

That the respondent must within 14 days contact the program provider, AB Parenting Orders Program (“the provider”) at …, Queensland, and arrange an appointment on or before 14 June 2012 for an initial assessment as to suitability for the post separation parenting program called “…– Parenting Orders Program” or such other program as may be recommended by the provider.

2.

That the respondent must attend the appointment for the initial assessment at any reasonable time and place nominated by the provider.

3.

That if assessed as suitable for the program or part of a program, and the program provider nominates a particular program for the respondent to attend, she must attend that program or part of the program (as the case may be) as soon as practicable.

4.

That the respondent notify the applicant in writing and provide documentary confirmation from the program provider of the dates upon which she complies with Orders 1 and 2.

5.

That the respondent notify the applicant forthwith and provide documentary confirmation from the program provider of the result of the assessment referred to in Order 3.

6.

That the respondent notify the applicant forthwith and provide documentary confirmation from the service provider upon the completion of the program referred to in Order 3.

7.

That the application by the respondent that the applicant pay her costs of 21 December 2011 be dismissed.

IT IS DIRECTED

8.

That the principal executive officer of the Family Court ensure that notice of the making of these orders is given to the proper officer of the AB Parenting Orders Program, together with a copy of these orders and the judgement, and request that the proper officer inform the court in writing as soon as possible if:

(a) A party to this order has failed to attend for assessment.

(b) A party to this order has failed to attend the program.

(c) The program provider considers a party a subject to this order is unsuitable to take any further part in the program or part of the program.

9.

That upon receipt of such notification the matter be re-listed.

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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