Archer & Starling - [2024] FedCFamC2F 1615

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Archer & Starling [2024] FedCFamC2F 1615

File number(s): CAC 288 of 2020

Judgment of: JUDGE MANSFIELD

Date of judgment: 22 November 2024

Catchwords: FAMILY LAW - PRACTICE & PROCEDURE – CONTEMPT – Despite final orders made by consent over three years ago, a real property in Ireland has still not been sold and the proceeds have not been disbursed between the parties – Where the Court initiated a charge of contempt pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) against the husband – Despite many findings made against the husband, the charge is bad for duplicity and is invalid - Charge of contempt dismissed

Legislation:
Family Law Act 1975 (Cth) ss 79A, 81, 112AP

Federal Circuit andFamily Court of Australia (Family Law) Rules 2021 r 11.70
Family Law Act 1995 (Republic of Ireland).s 23

Cases cited:

Abduramanoski v Abduramanoska (2005) 33 Fam LR 1; [2005] FamCA 88

Australasian Meat Industry Employees Union v Mudginberri StationPty Ltd (1986) 161 CLR 98

Galvis & Galvis [2024] FedCFamC2F 429

Ibbotson and Wincen (1994) FLC 92-496

Lim v Comcare (2019) 165 ALD 217

Mead v Mead (2007) FLC 93-327

Medlow & Medlow [2017] FamCAFC 159

Rand v Rand (2010) 43 Fam LR 570

Repatriation Commission v Nation (1995) 57 FCR 25

Witham v Holloway (1995) 183 CLR 525

Division: Division 2 Family Law

Number of paragraphs: 85

Date of last submission/s: 5 November 2024

Date of hearing: 5 November 2024

Place: Canberra

Counsel for the Applicant: Mr Hogg

Solicitor for the Applicant: Orman Solicitors

Solicitor for the Respondent: Litigant appearing in person
ORDERS

CAC 288 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ARCHER

Applicant

AND:
MR STARLING

Respondent

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

22 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The charge of contempt against the husband dated 18 September 2024 is dismissed.
2.The parties are permitted to use these Orders and the Reasons for Judgment dated 22 November 2024 in connection with their proceedings in the Republic of Ireland.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSFIELD:
BACKGROUND

The parties commenced cohabitation in or 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.

Continue reading Archer & Starling

Details

AGLC: Archer & Starling [2024] FedCFamC2F 1615
Case: [2024] FedCFamC2F 1615
Decision Date: 22 November 2024

CaseChat Overview and Summary

In the case of Archer & Starling, the parties were involved in a protracted dispute over the sale of a real property in Ireland and the subsequent distribution of proceeds. The matter was before the Federal Circuit and Family Court of Australia, Division 2, where the Court had to consider a charge of contempt against the husband, Mr Starling, for his failure to comply with final orders made by consent three years earlier. The applicant, Ms Archer, sought enforcement of these orders through the contempt charge. The central legal issue before the Court was whether the charge of contempt against Mr Starling was valid, considering the multiple findings against him for non-compliance with the final orders.

The Court found that the charge of contempt was invalid due to duplicity. The charge contained multiple allegations of contempt in a single count, which the Court determined to be a procedural flaw that rendered the charge invalid. Despite acknowledging the husband's non-compliance with the orders, the Court could not uphold the contempt charge because it did not meet the statutory requirements for a valid charge. Consequently, the charge of contempt was dismissed.

The Court's order dismissed the charge of contempt against Mr Starling and permitted the parties to use the Orders and the Reasons for Judgment in their proceedings in the Republic of Ireland. The dismissal of the contempt charge did not prejudice the applicant's right to seek further remedies in relation to the non-compliance with the final orders. The decision underscores the importance of procedural correctness in initiating contempt charges under the Family Law Act 1975 (Cth).

Orders

Orders of the court

CAC 288 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ARCHER

Applicant

AND:

MR STARLING

Respondent

ORDER MADE BY:

JUDGE MANSFIELD

DATE OF ORDER:

22 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The charge of contempt against the husband dated 18 September 2024 is dismissed.

2. The parties are permitted to use these Orders and the Reasons for Judgment dated 22 November 2024 in connection with their proceedings in the Republic of Ireland.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	CAC 288 of 2020
Judgment of:	JUDGE MANSFIELD
Date of judgment:	22 November 2024
Catchwords:	FAMILY LAW - PRACTICE & PROCEDURE – CONTEMPT – Despite final orders made by consent over three years ago, a real property in Ireland has still not been sold and the proceeds have not been disbursed between the parties – Where the Court initiated a charge of contempt pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) against the husband – Despite many findings made against the husband, the charge is bad for duplicity and is invalid - Charge of contempt dismissed
Legislation:	Family Law Act 1975 (Cth) ss 79A, 81, 112AP Federal Circuit andFamily Court of Australia (Family Law) Rules 2021 r 11.70 Family Law Act 1995 (Republic of Ireland).s 23
Cases cited:	Abduramanoski v Abduramanoska (2005) 33 Fam LR 1; [2005] FamCA 88 Australasian Meat Industry Employees Union v Mudginberri StationPty Ltd (1986) 161 CLR 98 Galvis & Galvis [2024] FedCFamC2F 429 Ibbotson and Wincen (1994) FLC 92-496 Lim v Comcare (2019) 165 ALD 217 Mead v Mead (2007) FLC 93-327 Medlow & Medlow [2017] FamCAFC 159 Rand v Rand (2010) 43 Fam LR 570 Repatriation Commission v Nation (1995) 57 FCR 25 Witham v Holloway (1995) 183 CLR 525
Division:	Division 2 Family Law
Number of paragraphs:	85
Date of last submission/s:	5 November 2024
Date of hearing:	5 November 2024
Place:	Canberra
Counsel for the Applicant:	Mr Hogg
Solicitor for the Applicant:	Orman Solicitors
Solicitor for the Respondent:	Litigant appearing in person

CAC 288 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ARCHER Applicant
AND:	MR STARLING Respondent

ORDER MADE BY:	JUDGE MANSFIELD
DATE OF ORDER:	22 NOVEMBER 2024