Bain (Deaceased) and Bain - [2016] FamCA 600

FAMILY COURT OF AUSTRALIA

BAIN (DEACEASED) & BAIN

[2016] FamCA 600

FAMILY LAW – CONTEMPT - flagrant challenge to the authority of the Court

Family Law Act 1975 (Cth)

G & H (1994) 181 CLR 387
Angelis & Angelis (1978) FLC 90-503
LGM & CAM(Contempt) (No. 2) (2008) FLC 93-355

APPLICANTS:

Ms Little and Ms Searle, the Legal Personal Representatives for Ms Bain (Deceased)

RESPONDENT:

Mr Bain

FILE NUMBER:

BRC

2481

2010

DATE DELIVERED:

25 May 2016 (orally); settled and amended pursuant to Rule 17.02A of the Family Law Rules 2004 and provided to the parties 26 July 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

6 October 2015, 4 February 2016, 8 & 31 March 2016, 22 April 2016 and 25 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr D.J. Morgan

SOLICITOR FOR THE APPLICANTS:

Blair Anderson Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

IT IS ORDERED THAT

The Application – Contempt filed 30 July 2015 is adjourned to 10.00 am on Monday, 25 July 2016.

IT IS DIRECTED THAT

By 4.00 pm on Monday, 11 July 2016 the Respondent file and serve any affidavit material intended to be relied upon at the hearing on 25 July 2016.
By 4.00 pm on Monday, 18 July 2016 the Applicant provide written notice to the Respondent’s legal representatives detailing those witnesses intended to be relied upon by the Respondent at the hearing on 25 July 2016 who are not required for cross-examination.

NOTATION

In the event that the proceedings are not completed on 25 July 2016 the Court intends to list the matter on 26 July 2016 to complete it.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2481 of 2010

Ms Little And Ms Searle, the Legal Personal Representatives for Ms Bain (Deceased)

Applicants

And

Mr Bain

Respondent

These Reasons, which were delivered orally on 25 May 2016, have been amended pursuant to Rule 17.02A of the Family Law Rules 2004 to correct the typographical error, arising from an accidental slip, in paragraph [72], [73] and [74].

REASONS FOR JUDGMENT

On 30 July 2015, the legal personal representatives for Ms Bain, now deceased, filed an Application for Contempt alleging that Mr Bain, former husband of Ms Bain, was in contempt of Court when, on 19 August 2014, he failed to pay…

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 Bain (Deaceased) and Bain

Details

AGLC: Bain (Deaceased) and Bain [2016] FamCA 600
Case: [2016] FamCA 600
Decision Date: 25 May 2016 (orally); settled and amended pursuant to Rule 17.02A of the Family Law Rules 2004 and provided to the parties 26 July 2016

CaseChat Overview and Summary

The proceedings concerned an application for contempt filed by the Applicant against the Respondent. The matter came before Hogan J.

The primary legal issue before the Court was the determination of the contempt application. This involved considering the evidence and submissions presented by both parties in relation to the alleged contempt.

Hogan J adjourned the contempt application to a future date, directing the Respondent to file and serve affidavit material by a specified date. Further directions were given regarding the provision of written notice by the Applicant concerning witnesses not requiring cross-examination. The Court also noted its intention to list the matter for a further day if the proceedings were not completed on the scheduled hearing date.

Orders

Orders of the court

IT IS ORDERED THAT

The Application – Contempt filed 30 July 2015 is adjourned to 10.00 am on Monday, 25 July 2016.

IT IS DIRECTED THAT

By 4.00 pm on Monday, 11 July 2016 the Respondent file and serve any affidavit material intended to be relied upon at the hearing on 25 July 2016.

By 4.00 pm on Monday, 18 July 2016 the Applicant provide written notice to the Respondent’s legal representatives detailing those witnesses intended to be relied upon by the Respondent at the hearing on 25 July 2016 who are not required for cross-examination.

NOTATION

In the event that the proceedings are not completed on 25 July 2016 the Court intends to list the matter on 26 July 2016 to complete it.

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

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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