BAINE & BAINE - [2014] FamCA 806

FAMILY COURT OF AUSTRALIA

BAINE & BAINE

[2014] FamCA 806

FAMILY LAW – ORDERS – Contravention – where the wife’s application for contravention alleges ten counts of contravention of final orders made by consent – where husband admits balance of the contraventions but submits he had a reasonable excuse – reasonable attempts made by husband to secure finance – husband unable to meet obligations due to financial circumstances – application for contravention dismissed.

Evidence Act 1975 (Cth) s 140
Family Law Act 1975 (Cth) s 112AB, 112AC, 112AD

Briginshaw v Briginshaw (1938) 60 CLR 336
Fauna Holdings Pty Ltd & Mitchell (2000) 27 Fam LR 81
Langford & Coleman (1993) FLC 92-346; (1992) 16 Fam LR 228
In the Marriage of Reilly (1995) 19 Fam LR 213
Northern Territory of Australia v GPAO and Ors (1999) 196 CLR 553
Redmond & Redmond [2014] FamCAFC 155
Sutcliffe & Sutcliffe (1989) FLC 92-004

APPLICANT:

Ms Baine

RESPONDENT:

Mr Baine

FILE NUMBER:

ADC

721

2012

DATE DELIVERED:

24 September 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

31 March and 1 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wedding

SOLICITOR FOR THE APPLICANT:

Adelaide Lawyers

COUNSEL FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

The wife’s Application for Contravention filed 13 December 2013 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baine & Baine 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 721 of 2012

Ms Baine

Applicant

And

Mr Baine

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment concerns an Application for Contravention filed by Ms Baine (“the wife”) on 13 December 2013 against Mr Baine (“the husband”). The wife alleges various breaches of the consent orders made on 16 October 2013 (“the orders”). The orders were final orders in the parties’ outstanding property proceedings.
The orders included an order for the transfer of the husband’s interest in the former matrimonial home to the wife on certain conditions namely, free from any encumbrance or with a small mortgage to be serviced wholly by the husband. In return the wife would transfer her interest in a second property (“Property H”) to the husband. Further orders provided for the transfer of a marina berth, payment of school fees and a number of indemnities.
The husband maintains the orders were conditional upon him first obtaining an appropriate level of finance from the ANZ Bank. While this condition appears in a “Heads of Agreement” document signed by the parties it did not form part of the final consent orders. The husband was unable to secure bank finance and consequently was unable to meet his obligations pursuant to the orders. It is the husband’s submission that this provides a reasonable excuse for contravention as the final orders should be interpreted with the assistance of the “Heads of Agreement” document.
The wife…

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.

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Details

AGLC: BAINE & BAINE [2014] FamCA 806
Case: [2014] FamCA 806
Decision Date: 24 September 2014

CaseChat Overview and Summary

In the matter of *Baine & Baine*, Dawe J of the Federal Circuit Court of Australia considered an application by the wife for contravention of parenting orders. The specific details of the contravention alleged were not provided in the excerpt.

The central legal issue before the court was whether the wife had established, on the balance of probabilities, that the husband had contravened the existing parenting orders. This required the court to assess the evidence presented by both parties in relation to the alleged breaches.

Dawe J dismissed the wife's application for contravention. The reasoning for this dismissal was not detailed in the provided text, but the outcome indicates that the wife failed to satisfy the court that a contravention had occurred on the balance of probabilities.

Orders

Orders of the court

The wife’s Application for Contravention filed 13 December 2013 is dismissed.

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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