BAMKIN & TATE (No.2) - [2015] FCCA 1562

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMKIN & TATE (No.2)

[2015] FCCA 1562

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – consequential orders – less serious contravention – where no previous contravention of primary order – imposition of bond.

FAMILY LAW – Costs – whether respondent should pay applicant’s costs – consideration of parties’ financial circumstances – where Applicant has significant arrears of child support – where neither party in receipt of legal aid – where Respondent not wholly unsuccessful – proceedings necessitated by failure to comply with previous orders of the court – where Respondent ordered to meet some but not all of Applicant’s costs.

Legislation:

Family Law Act 1975 (Cth), ss.70NEA, 70NEB, 70NEC, 117

Federal Circuit Court Rules 2001, Sch.1

Cases cited:
Bamkin & Tate [2015] FCCA 779
Mallet v Mallet (1984) 156 CLR 605; FLC 91-507
Penfold v Penfold (1980) 144 CLR 311
Woodley & Time & Anor [2008] FamCA 162

Applicant:

MR BAMKIN

Respondent:

MS TATE

File Number:

SYC 1276 of 2008

Judgment of:

Judge Scarlett

Hearing date:

3 June 2015

Date of Last Submission:

3 June 2015

Delivered at:

Sydney

Delivered on:

11 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Davis

Solicitors for the Applicant:

Robertson Saxton Primrose Dunn

Counsel for the Respondent:

Ms Barker

Solicitors for the Respondent:

Marsdens Law Group

ORDERS

The Respondent mother is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975, without surety or security, for a period of twelve (12) months from the date of this Order on the following conditions:
(a)that she be of good behaviour during the term of the bond; and
(b)that she comply with Orders of this Court.
The Respondent is to pay one-half of the Applicant’s costs and disbursements calculated according to Schedule 1 Part 1 of the Federal Circuit Court Rules 2001 fixed in the sum of $5,059.75 within six (6) months of the date of this Order.

IT IS NOTED that publication of this judgment under the pseudonym Bamkin & Tate (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1276 of 2008

MR BAMKIN

Applicant

And

MS TATE

Respondent

REASONS FOR JUDGMENT

Further Proceedings

On 20 March 2015 the Court found that the Respondent had, without reasonable excuse, contravened the primary Orders in this matter. Three other counts were dismissed, and the Respondent was found to have stablished a reasonable excuse in respect of another count.
As a result, there are two matters that need to be decided. First, the Court needs to consider what orders should be made in respect of the five contraventions that have been established. Second, the Applicant seeks an order for his costs.

An Appropriate Sanction

Section 70NEA of the Family Law Act 1975 (Cth) provides that where the Court is satisfied that a person has committed a contravention of a primary order without a reasonable excuse and no…

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 BAMKIN & TATE (No.2)

Details

AGLC: BAMKIN & TATE (No.2) [2015] FCCA 1562
Case: [2015] FCCA 1562
Decision Date: 11 June 2015

CaseChat Overview and Summary

This matter concerned an application by the Applicant father against the Respondent mother for contravention of parenting orders. The dispute centred on the Respondent mother's alleged failure to comply with existing orders concerning the children. The proceedings were heard by Judge Scarlett in the Family Court of Australia.

The primary legal issues before the court were whether the Respondent mother had contravened the parenting orders, and if so, whether such contravention was a "less serious contravention" given the absence of prior contraventions of the primary order. The court was also required to determine the appropriate consequential orders to be made, including the imposition of a bond, and to consider the question of costs, taking into account the parties' respective financial circumstances and the overall success of the parties in the proceedings.

In her reasoning, Judge Scarlett found that the Respondent mother had contravened the parenting orders. However, she characterised the contravention as "less serious" due to the lack of previous contraventions. Applying the principles of section 70NEC of the *Family Law Act 1975*, the court ordered the Respondent mother to enter into a twelve-month bond, without surety or security, on the conditions that she be of good behaviour and comply with court orders. Regarding costs, the court acknowledged that neither party had legal aid and that the Respondent was not wholly unsuccessful. Nevertheless, the proceedings were necessitated by the Respondent's failure to comply with previous orders. Consequently, the Respondent was ordered to pay one-half of the Applicant's costs and disbursements, fixed at $5,059.75, to be paid within six months.

Orders

Orders of the court

The Respondent mother is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975, without surety or security, for a period of twelve (12) months from the date of this Order on the following conditions:

(a) that she be of good behaviour during the term of the bond; and

(b) that she comply with Orders of this Court.

The Respondent is to pay one-half of the Applicant’s costs and disbursements calculated according to Schedule 1 Part 1 of the Federal Circuit Court Rules 2001 fixed in the sum of $5,059.75 within six (6) months of the date of this Order.

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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