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Stamp & Stamp

Case [2014] FCCA 1269 19 June 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

STAMP & STAMP

[2014] FCCA 1269

Catchwords:
FAMILY LAW – Contravention – reasonable steps to comply – children’s order – physical contact – impossibility of compliance with orders.

Legislation:
Family Law Act 1975, s.70NAC

Evidence Act 1995, s.140

Ackersley & Rialto [2009] FamCA 817
Bainrot and Bainrot (1976) FLC 90-003
Filipovic and Filipovic (1977) FLC 90-266
Fooks & Clark [2004] FamCA 212; (2004) FLC 93-183; (2004) 32 Fam LR 149
Jets & Maker [2010] FamCAFC 55
O'Brien&O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC 92-396 at [13]
Raider & Raider [2011] FamCA 488
Stavros and Stavros [1984] FLC 91-562; (1984) 75 FLR 323; (1984) 9 Fam LR 1025
Stevenson & Hughes [1993] FamCA 14; [1993] FLC 92-363; 112 FLR 415; (1993) 16 Fam LR 443
TVT & TLM [2006] FMCAfam 20
Webber and Budd (No 2) [2011] FamCA 539
WJP & TP [2002] FMCAfam 315 (Unrep.)

Applicant:

MR STAMP

Respondent:

MS STAMP

File Number:

MLC 2421 of 2011

Judgment of:

Judge Riethmuller

Hearing date:

27 June 2013

Date of Last Submission:

27 June 2013

Delivered at:

Melbourne

Delivered on:

19 June 2014

REPRESENTATION

Counsel for the Applicant:

Ms Vohra

Solicitors for the Applicant:

Nicholes Family Lawyers

Counsel for the Respondent:

Mr O'Connell

Solicitors for the Respondent:

Macpherson & Kelley Lawyers Pty Ltd

ORDERS

The matter be adjourned for further hearing with respect to consequential orders on 14 August 2014 at 10am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 2421 of 2011

MR STAMP

Applicant

And

MS STAMP

Respondent

REASONS FOR JUDGMENT

This is an Application-Contravention filed by the Husband on 6 February 2012, which alleges 13 contraventions by the Wife of final parenting orders made on 17 August 2011 by consent.
At the hearing on 27 June 2013, Counsel for the Husband indicated that they would only be proceeding with counts 1-6 and counts 10-11 (a total of 8 counts).

Background

The parties were married in 1991 and divorced in 2011. There are three children of the marriage: [R] born (omitted) 1996 (now 17), [J] born (omitted) 1998 (now 16) and [G] born (omitted) 2000 (now 13). Final parenting orders were made by consent on 17 August 2011, providing for [R] to reside with the Husband and [J] and [G] to reside with the Wife. Orders were made for the children to spend time with the non-resident parent.

The Contraventions Alleged

Of the contraventions alleged, counts 1-6 refer to an alleged failure by the Wife to facilitate and encourage time between the children and the Husband pursuant to para.18(a) of the Orders made 17 August 2011.
Counts 10 and 11 refer to an alleged failure by the Wife to keep the Husband informed of the child [J]’s mental health issues and to consult with him about…

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.

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Details

AGLC: Stamp & Stamp [2014] FCCA 1269
Case: [2014] FCCA 1269
Decision Date: 19 June 2014

CaseChat Overview and Summary

In the matter of *Stamp & Stamp*, heard before Judge Riethmuller, the dispute concerned an application for an order for the sale of property. The applicants sought the sale of a property held by the parties as tenants in common, arguing that it was just and equitable to do so. The respondent opposed the sale, seeking instead to retain the property.

The central legal issue before the court was whether it was just and equitable to order the sale of the property pursuant to section 37 of the *Property Law Act 1974* (Qld). This required the court to weigh the competing interests of the parties and consider all relevant circumstances to determine if an order for sale was the most appropriate remedy.

Judge Riethmuller considered the evidence presented by both parties, including the history of the property, the parties' financial positions, and their respective needs and desires concerning the property. The court found that an order for sale was indeed just and equitable in the circumstances. The court noted that the parties had been unable to agree on a resolution for some time, and the property was not being used to its full potential.

Consequently, the court ordered that the matter be adjourned for further hearing with respect to consequential orders, including the terms of the sale, on 14 August 2014 at 10 am.

Orders

Orders of the court

The matter be adjourned for further hearing with respect to consequential orders on 14 August 2014 at 10am.

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

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Ratio Decidendi

Legal Principle Established

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Citations

Stamp & Stamp [2014] FCCA 1269

Most Recent Citation

Yuan & Song (No 5) [2025] FedCFamC2F 49

Cases Citing This Decision

Garner & Jansen [2025] FedCFamC1F 330
Citation 1 (Para 13)

…In the matter of Stamp & Stamp [2014] FCCA 1269, Judge Riethmuller (as he was then known) observed at [21]: “it is accepted that the parent with whom the children ‘live with’ has a duty to ensure that the children not only attend, but do so in a positive manner”. Helpfully, his Honour set out observations made in a…
Humphrey & Humphrey (No 5) [2025] FedCFamC1F 73
Citation 2 (Para 3)

…In Stamp v Stamp [2014] FCCA 1269 at [22] Judge Riethmuller,[3] provided the logical steps to be followed in a contravention application. At that paragraph His Honour stated: “If satisfied that the (father) contravened an order, either intentionally or by making no reasonable attempt to comply, the court must then…
Yuan & Song (No 5) [2025] FedCFamC2F 49
Citation 3 (Para 35)

…nd school.[2] [1] See Stevenson & Hughes [1993] FamCA 14 and O’Brien & O’Brien [1992] FamCA 52 [2] See WJP & TP [2002] FMCAfam 315; Stamp & Stamp [2014] FCCA 1269. FATHER’S REASONABLE EXCUSE…
Fermikis & Fermikis [2024] FedCFamC1F 879
Citation 4 (Para 35)

…In the matter of Stamp & Stamp [2014] FCCA 1269 (“ Stamp ”) Riethmuller J set out observations made in a number of cases with respect to the meaning of “reasonable attempt” including: (a)the primary carer must actively encourage the child to attend time with the other parent as ordered; (b)the Court should consider…
Papp & Myers (No 2) [2022] FedCFamC1F 937
Citation 5 (Para 37)

…er the steps taken are a “ reasonable attempt to comply ” with a “ spend time with ” order. In TVT ( supra ) and again in Stamp & Stamp [2014] FCCA 1269 Judge Riethmuller noted that the way that the applicable obligation has been described in different cases provided considerable guidance as to the extent of the ob…
Welsh & Welsh [2021] FCCA 149
Citation 6 (Para 19)

…In the matter of Stamp & Stamp [2014] FCCA 1269, Riethmuller J very helpfully sets out observations made in a number of cases with respect to the meaning of ‘reasonable attempt’ which includes:- (a)the live with parent must actively encourage the child’s attendance; (b)the Court needs to consider whether, in realit…
Hatch and Vining [2019] FCCA 1705
Citation 7 (Para 6)

…In TVT and again in his more recent case of Stamp & Stamp [2014] FCCA 1269, Judge Riethmuller noted that the way that the applicable obligation has been described in different cases provides considerable guidance as to the extent of the obligation: 21. … a) The ‘live with’ parent must actively encourage the child t…
Diani and Diani (No.2) [2019] FCCA 568
Citation 8 (Para 15)

…dered time with the other parent, and there is much case law covering those circumstances[3]. [3] That law is set out in some detail in Stamp & Stamp [2014] FCCA 1269.…
SHELTON & WAKEFORD [2017] FCCA 2610
Citation 9 (Para 8)

…is to make reasonable attempts to comply with the orders. Judge Reithmueller comprehensively reviewed the authorities on this point in Stamp & Stamp [2014] FCCA 1269 at [17] to [24]: [17] In many contravention cases involving contact orders, consideration must be given to what is necessary to make a ‘reasonable at…
Beesley and Ericsson (No.4) [2017] FCCA 2189
Citation 10 (Para 13)

…dered time with the other parent, and there is much case law covering those circumstances[1]. [1] That law is set out in some detail in Stamp & Stamp [2014] FCCA 1269 .…
Argyle and Thomas [2017] FCCA 621
Citation 11 (Para 24)

…riginal orders must have been found by the Court to be appropriate parenting orders at the time they were made.”[17] [16] Stamp & Stamp [2014] FCCA 1269 at [24] referring to Fooks & Clark [2004] FamCA 212; and Raider & Raider [2011] FamCA 488. [17] Stamp & Stamp [2014] FCCA 1269 at [24] quoting an earlier judgement…
Deakin & Howe [2016] FCCA 2605
Citation 12 (Para 11)

…iginal orders must have been found by the Court to be appropriate parenting orders at the time they were made.” [34] [33] Stamp & Stamp [2014] FCCA 1269 at [24] referring to Fooks & Clark [2004] FamCA 212; and Raider & Raider [2011] FamCA 488. [34] Stamp & Stamp [2014] FCCA 1269 at [24] quoting an earlier judgement…
Ericsson and Beesley (No.3) [2016] FCCA 2111
Citation 13 (Para 4)

…to whether the steps taken are a “ reasonable attempt to comply” with a “ spend time with” order. In TVT ( supra ) and again in Stamp & Stamp [2014] FCCA 1269 Judge Riethmuller noted that the way that the applicable obligation has been described in different cases provided considerable guidance as to the extent of…
Sitch and Jacobs (No.3) [2014] FCCA 1865
Citation 14 (Para 5)

…s that may be ultimately imposed: Langer & Griffin [2013] FamCAFC 170 at paragraph 60 per Bryant CJ, Strickland and Ainslie-Wallace JJ; Stamp & Stamp [2014] FCCA 1269 at paragraph 16 per Judge Riethmuller.…

See all citing cases →

Cases Cited

Raider & Raider [2011] FamCA 488
Citation 1 (Para 8)

…efusal of time with a parent will be excused: Fooks & Clark [2004] FamCA 212; (2004) FLC 93-183; (2004) 32 Fam LR 149 at [45] and Raider & Raider [2011] FamCA 488 are two such examples. Distress of a child may give rise to a claim of reasonable excuse, if it results in risk of harm to the child’s emotional wellbein…
Webber and Budd (No 2) [2011] FamCA 539
Citation 2 (Para 2)

…More recently, in Webber and Budd (No 2) [2011] FamCA 539, Watts J found that the mother contravened the orders for the children to spend time with the father on a particular occasion, saying: 7. … even accepting the version the mother has given, there was nothing in that version about any encouragement that the mo…
Jets & Maker [2010] FamCAFC 55
Citation 3 (Para 2)

…The Applicant bears the onus of proving the contravention on the balance of probabilities: see Jets & Maker [2010] FamCAFC 55 per O’Ryan J.…
Ackersley & Rialto [2009] FamCA 817
Citation 4 (Para 5)

…spend time]’: see O'Brien & O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC ¶92-396 at [13]. In Ackersley & Rialto [2009] FamCA 817, at para [102], Cronin, J referred to the ‘Parenting orders – obligations, consequences and who can help’ statement, which is annexed to every parenting order of this Court a…
TVT & TLM [2006] FMCAfam 20
Citation 5 (Para 4)

…As I noted in TVT & TLM [2006] FMCAfam 20, ‘the absence of detailed orders providing for the mechanics for changeover does not make the orders inoperative or incapable of enforcement’.…
Fooks & Clark [2004] FamCA 212
Citation 6 (Para 8)

…Of course there may be cases where a child is so ‘upset’ or distressed that a refusal of time with a parent will be excused: Fooks & Clark [2004] FamCA 212; (2004) FLC 93-183; (2004) 32 Fam LR 149 at [45] and Raider & Raider [2011] FamCA 488 are two such examples. Distress of a child may give rise to a claim of rea…
WJP & TP [2002] FMCAfam 315
Citation 7 (Para 5)

…hey have over a child, just as they would to ensure the child attends school: See WJP & TP [2002] FMCAfam 315 (Unrep.) at [12] and [14]. h)It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or…
In the marriage of O’Brien [1992] FAMCA 52
Citation 8 (Para 5)

…ce of things, the [live with] person has taken reasonable steps to deliver the child for [spend time]’: see O'Brien & O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC ¶92-396 at [13]. In Ackersley & Rialto [2009] FamCA 817, at para [102], Cronin, J referred to the ‘Parenting orders – obligations, conseque…
Stevenson v Hughes [1993] FAMCA 14
Citation 9 (Para 3)

…e time as ordered takes place: Stavros and Stavros [1984] FLC ¶91-562; (1984) 75 FLR 323; (1984) 9 Fam LR 1025; and followed in Stevenson & Hughes [1993] FamCA 14; [1993] FLC ¶92-363; 112 FLR 415; (1993) 16 Fam LR 443.…

Legislation Cited

Evidence Act 1995 (Cth) 140
3 mentions (from Para 3)
Family Law Act 1975 (Cth) 70NAC
2 mentions