Stokes and Stokes - [2010] FamCA 1007

FAMILY COURT OF AUSTRALIA

STOKES & STOKES

[2010] FamCA 1007

FAMILY LAW – PRACTICE AND PROCEDURE – Case management – Rule in Rice v Asplund

APPLICANT:

Mr Stokes

RESPONDENT:

Ms Stokes

INDEPENDENT CHILDREN’S LAWYER:

Bucknall Family Lawyers

FILE NUMBER:

BRC

9391

2007

DATE DELIVERED:

11 November 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

12 August 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Barbour of Anthony Black Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sara, instructed directly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bucknall of Bucknall Family Lawyers

Orders

Paragraphs 8 and 9 of the mother’s application filed on 11 March 2010 are dismissed.
The father’s application in relation to the parenting application is dismissed.
The matter is adjourned to 10.00am on 9 March 2011 for trial for three days.
The applicant is to file all affidavit material on which she intends to rely by 4.00pm on 14 February 2011.
The respondent is to file all affidavit material on which he intends to rely by 4.00pm on 28 February 2011.
The applicant is to file any document in response to the respondent’s material by 4.00pm on 2 March 2010.
The Independent Children’s Lawyer is to file any document on which she intends to rely by 4.00pm on 2 March 2010.
Each party must lodge in the Court by (2 clear days prior to trial) a document containing the following:
(a) A minute of orders sought by that party.
(b)A brief and concise statement of the material facts asserted by the party in support of the orders sought.
(c)A proposed minute of order in the event the other party’s case is made out.
(d)A list of the affidavits each party proposes to rely upon at trial.
Otherwise, all outstanding applications are dismissed.

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

FAMILY COURT OF AREADY USTRALIA AT BRISBANE

FILE NUMBER: BRC 9391 of 2007

MR STOKES

Applicant

And

MS STOKES

Respondent

REASONS FOR JUDGMENT

On 3 June 2005, an extensive Consent Order was made in this Court and I refer to it but do not intend to incorporate it in full since it is exceptionally lengthy. It deals not only with property as between Ms Stokes and her then husband, Mr Stokes, but also with children’s matters. The property settlement orders are from paragraph (1) to (26) and the parenting issues take up paragraph (27) to (49) of the Order and there are notations numbered from (a) to (e) inclusive.
On 11 March 2010, Ms Stokes, hereinafter referred to as the wife, applied for the property settlement Orders made on 3 June 2005 to be set aside pursuant to section 79A of the Family Law Act. For interest sakes only, the wife now seeks the distribution of the asset pool that exists today, such that the respondent receives 60 per cent and the applicant 40 per…

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 Stokes and Stokes

Details

AGLC: Stokes and Stokes [2010] FamCA 1007
Case: [2010] FamCA 1007
Decision Date: 11 November 2010

CaseChat Overview and Summary

In the matter of *Stokes and Stokes*, Bell J considered a dispute between the parents concerning parenting arrangements for their children.

The court was required to determine whether to dismiss certain paragraphs of the mother's application and the father's application in relation to parenting. The court also had to set a timetable for the further conduct of the proceedings, including the filing of affidavit material and the preparation for trial.

Bell J dismissed paragraphs 8 and 9 of the mother's application and the father's parenting application. The court then adjourned the matter for a three-day trial on 9 March 2011, setting strict deadlines for the filing of affidavit material by both parties and the Independent Children’s Lawyer. Further directions were given regarding the lodgement of documents containing minutes of orders sought, statements of material facts, proposed minutes of orders in the alternative, and lists of affidavits to be relied upon at trial. All other outstanding applications were dismissed.

Orders

Orders of the court

Paragraphs 8 and 9 of the mother’s application filed on 11 March 2010 are dismissed.

The father’s application in relation to the parenting application is dismissed.

The matter is adjourned to 10.00am on 9 March 2011 for trial for three days.

The applicant is to file all affidavit material on which she intends to rely by 4.00pm on 14 February 2011.

The respondent is to file all affidavit material on which he intends to rely by 4.00pm on 28 February 2011.

The applicant is to file any document in response to the respondent’s material by 4.00pm on 2 March 2010.

The Independent Children’s Lawyer is to file any document on which she intends to rely by 4.00pm on 2 March 2010.

Each party must lodge in the Court by (2 clear days prior to trial) a document containing the following:

(a) A minute of orders sought by that party.

(b) A brief and concise statement of the material facts asserted by the party in support of the orders sought.

(d) A list of the affidavits each party proposes to rely upon at trial.

Otherwise, all outstanding applications are dismissed.

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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