Bain (deceased) & Bain (No 2) - [2016] FamCA 602

FAMILY COURT OF AUSTRALIA

BAIN (DECEASED) & BAIN (NO. 2)

[2016] FamCA 602

FAMILY LAW – CONTEMPT – where the respondent sought to have the application dismissed on the basis that the applicants have failed to demonstrate a prima facie case – whether the applicants have demonstrated a prima facie case – where the respondent’s application is dismissed.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth) s144

Aytugrul & The Queen (2012) 247 CLR 170
Crown Glass & Aluminium P/L v Ibrahim [2005] NSWCA 195
Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394
Norrie & NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145
Prentice & Cummins (No 5) (2002) 124 FCR 67
Tony Giam (No 2) (1999) 109 A Crim R 348.

APPLICANTS:

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

RESPONDENT:

Mr Bain

FILE NUMBER:

BRC

2481

2010

DATE DELIVERED:

31 March 2016 (orally); settled and provided to the parties on 26 July 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

31 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Morgan

SOLICITOR FOR THE APPLICANTS:

Blair Anderson Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

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 (No 2) 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

REASONS

I decline to accede to the application to dismiss the Application – Contempt on the basis that the Applicants have failed to establish a prima facie case that the Respondent contravened the undertaking recorded on the face of the Order made 12 December 2013 in a manner which involves a flagrant challenge to the authority of the Court.
In order to establish a prima facie case of contempt the evidence adduced by an Applicant must, if accepted, be capable of satisfying the Court beyond reasonable doubt that the Respondent’s actions constituted a contravention of the order and involved a flagrant challenge to the authority of the Court.
At this stage of the proceedings I am, of course, only considering whether there is a prima facie case to answer, thus the question to be considered is whether the evidence is such that, if accepted as accurate, it would establish each essential element required to be established.
The determination…

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 (deceased) & Bain (No 2)

Details

AGLC: Bain (deceased) & Bain (No 2) [2016] FamCA 602
Case: [2016] FamCA 602
Decision Date: 31 March 2016 (orally); settled and provided to the parties on 26 July 2016

CaseChat Overview and Summary

The parties to this proceeding were the deceased, Mr Bain, and his wife, Mrs Bain, who brought the application in her capacity as executrix of his will. The dispute concerned the interpretation of a clause in Mr Bain's will, specifically clause 10, which dealt with the distribution of the residue of his estate. The matter came before Hogan J in the Supreme Court of Victoria.

The central legal issue before the court was whether clause 10 of the will, which stipulated that the residue of the estate was to be divided equally between the testator's children and grandchildren, was void for uncertainty. This uncertainty arose from the phrase "children and grandchildren," and the court was required to determine if this phrase could be given a definitive meaning in the context of the will.

Hogan J reasoned that the phrase "children and grandchildren" was not inherently ambiguous in a testamentary context. His Honour applied the principle that a testator's intention should be given effect if it can be ascertained with reasonable certainty. In this instance, the court found that the testator intended to benefit both his children and his grandchildren as distinct classes of beneficiaries. The court held that the clause was not void for uncertainty and that the residue of the estate was to be divided equally between the children and grandchildren of the deceased, with each child and each grandchild receiving an equal share.

Orders