Thompson and Reid - [2008] FMCAfam 686

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THOMPSON & REID

[2008] FMCAfam 686

FAMILY LAW – Contravention – adjournment – sanction.

Family Law Act 1975, s.70NEB

Dobbs & Brayson [2007] FamCA 1261
Rice & Asplund (1978) 6 Fam LR 570

Applicant:

MR THOMPSON

Respondent:

MS REID

File Number:

LEC 10 of 2008

Judgment of:

Jarrett FM

Hearing date:

2 April 2008

Date of Last Submission:

2 April 2008

Delivered at:

Brisbane

Delivered on:

2 April 2008

REPRESENTATION

Solicitors for the Applicant:

Bothwick & Butler

Solicitors for the Respondent:

Filewood Carty Lawyers

ORDERS

That pursuant to section 70NEB of the Family Law Act 1975, the mother enter into a bond.
That by way of compensatory time, the child [A] born in 1996 spend time with his father:
(a)From 6.00pm on Friday 11 April 2008 until 5.00pm Sunday
27 April 2008 (first term of school holidays);
(b)From 6.00pm on 26 September 2008 until 5.00pm on Sunday
12 October 2008 (third term of school holidays);
(c)
From 6.00pm on Friday 19 December 2008 until 6.00pm on

28 January 2009
(all of Christmas/January school holidays).
That the mother pay the father’s costs of and incidental to the contravention application filed on 9 January 2008, fixed in the sum of $2,131.00.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

LEC 10 of 2008

MR THOMPSON

Applicant

And

MS REID

Respondent

REASONS FOR JUDGMENT

Ex tempore

This is a contravention application that came before me for hearing in Lismore on 11 March, 2008. On that day I dealt with the contravention in the mother's absence. I was satisfied by an affidavit of service that was filed 5 March, 2008 that she had been served with the application for contravention and the supporting affidavit material personally on 18 January, 2008 at her address in [X]. She signed an acknowledgement of service on that day.
When the matter came before me on 11 March, 2008 the mother did not appear. I determined the application in her absence insofar as the contraventions were concerned. I found on the material before me that she had contravened the orders made by Lucev FM on 23 October, 2007 in a number of respects. It is fair to say, I think, that from the first point at which those orders had an opportunity to afford contact between the child who is the subject of the orders and the father, the mother did not comply and there was repeated non compliance until the filing of the contravention application.
Whether the non-compliance is continuing or not is not clear and, according to the decision of the Full Court in Dobbs & Brayson [2007] FamCA 1261 probably not relevant. The mother applies this morning for an adjournment of the sanctioning process. I should say that I adjourned the matter from Lismore to yesterday because I thought it important that the mother…

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 Thompson and Reid

Details

AGLC: Thompson and Reid [2008] FMCAfam 686
Case: [2008] FMCAfam 686
Decision Date: 2 April 2008

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Thompson and Reid involved a dispute between the mother and father of a child born in 1996, concerning parenting arrangements and compliance with prior orders. The father filed an application for contravention of prior orders, alleging that the mother failed to comply with specific visitation provisions agreed upon in their parenting orders.

The central legal issue before the court was whether the mother had contravened the parenting orders by failing to allow the father to exercise his visitation rights. The court was also required to determine whether the mother should enter into a bond and to decide on appropriate compensatory arrangements for the child’s missed visitation periods with the father.

The court found that the mother had indeed contravened the parenting orders by failing to allow the father his specified visitation times. Consequently, the court ordered the mother to enter into a bond and set compensatory visitation periods during the child's upcoming school holidays. Additionally, the court awarded costs to the father in relation to the contravention application, fixing the amount at $2,131.00.

The court's orders, as outlined, require the mother to enter into a bond and provide the child with specified visitation periods with the father during the upcoming school holidays. Furthermore, the mother was directed to pay the father's costs in the sum of $2,131.00, which were associated with the contravention application.

Orders

Orders of the court

That pursuant to section 70NEB of the Family Law Act 1975, the mother enter into a bond.

That by way of compensatory time, the child [A] born in 1996 spend time with his father:

(a) From 6.00pm on Friday 11 April 2008 until 5.00pm Sunday

27 April 2008 (first term of school holidays);

(b) From 6.00pm on 26 September 2008 until 5.00pm on Sunday

12 October 2008 (third term of school holidays);

(c)

From 6.00pm on Friday 19 December 2008 until 6.00pm on

28 January 2009

(all of Christmas/January school holidays).

That the mother pay the father’s costs of and incidental to the contravention application filed on 9 January 2008, fixed in the sum of $2,131.00.

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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