STUBBS & STUBBS - [2013] FamCA 427

FAMILY COURT OF AUSTRALIA

STUBBS & STUBBS

[2013] FamCA 427

FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of four counts – where the primary order concerns the time the two children are to spend with the father – where the wife admits all four counts – consideration of whether the wife had a reasonable excuse for contravention – where the wife claims she has a reasonable excuse pursuant to s 70NAE(5) of the Family Law Act 1975 (Cth) – no reasonable excuse for contravention established – consideration as to the orders to be made consequent upon these findings adjourned to a date to be advised by the Docket Registrar upon receiving notification that the criminal proceedings against the father have been finalised.

Family Law Act 1975 (Cth) s 70NAA, 70NAC, 70NAE, 70NAF, 70NBA, 70NFA
Family Law Rules 2004 (Cth) r 21.08

Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007)
Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072 (13 September 2007)
Childers v Leslie (2008) 39 Fam LR 379
McClintock & Levier (2009) 41 Fam LR 245 at 283

APPLICANT:

Mr Stubbs

RESPONDENT:

Ms Stubbs

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

1974

2009

DATE DELIVERED:

11 June 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

9 and 10 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Helen McCance

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Georgina Parker Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

The issue of what, if any, orders should be made as a consequence of these findings is adjourned to a date to be advised by the Docket Registrar upon receiving notification that the criminal proceedings against the father have been finalised.
The question of the costs of the contravention applications is to be heard before me on the adjourned date yet to be advised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stubbs & Stubbs 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 ADELAIDE

FILE NUMBER: ADC 1974 of 2009

Mr Stubbs

Applicant

And

Ms Stubbs

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment concerns two applications for contravention orders filed by Mr Stubbs (“the father”) alleging a total of four counts of contravention on the part of Ms Stubbs (“the mother”). The first application was filed on 13 December 2011. The second was filed on 20 December 2011.
These applications for contravention orders assert various breaches of parenting orders made by O’Reilly J on 9 May 2011 concerning the two children of the marriage, namely, D born in September 2002 (aged 10 at the…

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 STUBBS & STUBBS

Details

AGLC: STUBBS & STUBBS [2013] FamCA 427
Case: [2013] FamCA 427
Decision Date: 11 June 2013

CaseChat Overview and Summary

In *Stubbs & Stubbs*, Dawe J of the Family Court of Australia considered applications concerning contravention of parenting orders. The proceedings involved allegations of contravention by the father, with the mother seeking orders in relation to these alleged breaches.

The central legal issue before the court was to determine whether the father had contravened the parenting orders as alleged by the mother. Following the determination of this issue, the court was required to consider what consequential orders, if any, should be made, and to address the question of costs associated with the contravention applications.

Dawe J made findings in relation to the contravention applications. However, the court determined that the finalisation of consequential orders and the determination of costs should be adjourned. This adjournment is contingent upon the finalisation of separate criminal proceedings against the father. The court indicated that the Docket Registrar would advise of a date for these matters to be heard once the criminal proceedings have concluded.

Orders

Orders of the court

The issue of what, if any, orders should be made as a consequence of these findings is adjourned to a date to be advised by the Docket Registrar upon receiving notification that the criminal proceedings against the father have been finalised.

The question of the costs of the contravention applications is to be heard before me on the adjourned date yet to be advised.

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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