Stokes and Stokes (No 3) - [2011] FamCA 946

FAMILY COURT OF AUSTRALIA

STOKES & STOKES (NO 3)

[2011] FamCA 946

FAMILY LAW – CONTEMPT – Contravention of Court order – Whether the father has contravened Court orders – Where the mother alleges the father of five counts of contraventions, three of which the father conceded to, but asserts that he had reasonable excuse for the other two – Whether forgetting constitutes reasonable excuse – Court finds that it does not – Order that the parents complete a post separation parenting program

Family Law Act 1975 (Cth) s 70EB(1)(a)(ii), s 65LB, s 70NAE, s 70NB, s 11(1)(f)

Elspeth v Peter, Mike v Peter and John v Peter [2007] FamCA 655

APPLICANT:

Ms Stokes

RESPONDENT:

Mr Stokes

FILE NUMBER:

BRC

9391

2007

DATE DELIVERED:

13 July 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

13 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wright

SOLICITOR FOR THE APPLICANT:

Rada Milovanovic Solicitor

FOR THE RESPONDENT:

Mr Stokes in person

Orders

That pursuant to the provisions of section 70NEB(1)(a)(ii), the mother and the father shall each separately attend and complete a post separation parenting orders program conducted by a section 65LB provider of such programs;
that each of the mother and the father shall be personally responsible to access details of such programs through a Family Relationship Centre in their residential proximity and for making contact with the provider of such programs enrolling in, attending and completing such a program;
that each of the mother and the father shall complete such a post separation parenting orders program within six months of the date hereof and provide evidence in writing of the completion of such a program to the other parties.

IT IS NOTED that publication of this judgment under the pseudonym Stokes v Stokes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9391 of 2007

Ms Stokes

Applicant

And

Mr Stokes

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

I have before me for determination today an application alleging contraventions of parenting orders, in the matter between Ms Stokes, the mother, and Mr Stokes, the father, of B, born in 2001, now aged 10.
By way of some relevant background, these two parents have been in dispute in respect of the parenting of their daughter, B, for some seven years. On 8 April 2011, after a hearing that took place on 9, 10, 11, 24 March 2011 and 1 April 2011, before Bell J of this court, Bell J made lengthy orders in the parenting dispute as between the parties.
I shall incorporate in these reasons those orders:
1)The child [B] born … 2001 live with the mother [MS STOKES].
2)The mother have sole parental responsibility for decisions concerning the long term care, welfare and development of the child.
Child’s time with the father
3)(a) The father spend time with the child during school term at such times as…

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 (No 3)

Details

AGLC: Stokes and Stokes (No 3) [2011] FamCA 946
Case: [2011] FamCA 946
Decision Date

CaseChat Overview and Summary

In *Stokes and Stokes (No 3)*, the Family Court of Australia considered an application by Ms Stokes (the mother) alleging that Mr Stokes (the father) had contravened court orders concerning their child. The dispute arose shortly after the court made extensive parenting orders, with the mother alleging six counts of contravention against the father.

The court was required to determine whether the father had contravened specific parenting orders made by Bell J. The legal issues included whether the father had reasonable excuse for any admitted contraventions, and whether his actions constituted contraventions of the orders regarding communication and the return of the child. The court also had to assess whether the father had contravened the order requiring him to facilitate the child's telephone contact with the mother, and whether his communication with the mother via text message breached the order limiting communication to post and telephone calls.

Forrest J found that the father had contravened three of the five counts of contravention that proceeded to hearing. The court determined that forgetting to collect the child on the designated Friday evening, and subsequently failing to return the child at the ordered time on the Sunday, did not constitute a reasonable excuse under section 70NAE of the *Family Law Act 1975* (Cth). The court reasoned that parenting orders are made in the best interests of the child, not the parents, and that a parent has a positive obligation to comply with them. The father's assertion that the mother had not acted honourably was not accepted as a reasonable excuse for his own contraventions. Regarding the medication contravention, the court found the father's defence was an argument for mitigation rather than a reasonable excuse. The court was not satisfied, on the balance of probabilities, that the father had contravened the order preventing the child from contacting the mother, as the child had indeed made contact. However, the court found that the father had contravened the communication order by sending text messages, rejecting his argument that text messages did not fall within the definition of "post and telephone calls."

The court ordered that both the mother and the father attend and complete a post-separation parenting program within six months, and provide written evidence of completion to the other party.

Orders