Bande & Cade - [2011] FamCAFC 93

FAMILY COURT OF AUSTRALIA

BANDE & CADE

[2011] FamCAFC 93

FAMILY LAW - APPEAL – CONTEMPT – Contravention of Court order - Matters which can amount to a contempt within s 112AP of the Family Law Act 1975 (Cth) – Denial of natural justice – Appeal allowed.

FAMILY LAW - COSTS – Costs certificate granted to the appellant.

Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Proceedings (Costs) Act 1981 (Cth)

English & English (1986) FLC 91-729
Ibbotson & Wincen (1994) FLC 92-496
Tate & Tate (2002) FLC 93-107

APPELLANT:

Ms Bande

RESPONDENT:

Mr Cade

FILE NUMBER:

HBC

1233

2008

APPEAL NUMBER:

EAA
SA

123
72

Of
of

2010
2009

DATE DELIVERED:

Amended pursuant to the slip rule
28 April 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace and Johnston JJ

HEARING DATE:

15 March 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 August 2010

LOWER COURT MNC:

[2010] FamCA 789

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Goodchild

SOLICITOR FOR THE APPELLANT:

Neisha Shepherd Solicitor

THE RESPONDENT:

No appearance

Orders

The father’s contempt application filed on 28 January 2009 is dismissed.
The appeal against the conviction imposed by Benjamin J on 24 August 2010 is allowed and the sentence set aside.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Bande & Cade is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 123 of 2010 and SA 72 of 2009
File Number: HBC 1233 of 2008

Ms Bande

Appellant

And

Mr Cade

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal against a conviction and sentence for contempt imposed by Benjamin J on 24 August 2010.
The matter arises out of orders made by Burr J on 31 October 2008.
The respondent father, although ordered to file a written outline of argument and list of authorities, declined to do so. On the morning of the hearing of the appeal the mother was represented by counsel. The father was called twice, once at 10 am and again at 10.15 am. He failed to appear. The hearing was thus conducted in his absence.
The procedural history of the matter is somewhat convoluted and it is necessary to traverse it in some detail to give context to the appeal before us.
When the appeal was argued, counsel for the mother said that on some occasions when the matter was before Benjamin J the proceedings had not been recorded and no transcript was available. After the appeal hearing it came…

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 Bande & Cade

Details

AGLC: Bande & Cade [2011] FamCAFC 93
Case: [2011] FamCAFC 93
Decision Date: 28 April 2011

CaseChat Overview and Summary

The appeal before the court involved a dispute between Bande and Cade, the mother and father of a child. The father had applied for a contempt order against the mother for breaching a court-made order. The appeal was brought before the Family Court of Australia, where the mother contested the conviction and sentence imposed by Benjamin J. The primary issue before the court was whether the mother's actions constituted a contempt of court under section 112AP of the Family Law Act 1975 (Cth). Additionally, the court had to consider whether the mother had been denied natural justice during the proceedings.

The court found that the mother's actions did not constitute contempt of court as defined by section 112AP of the Family Law Act 1975 (Cth). The court held that the mother's conduct did not amount to a serious interference with the administration of justice or a serious obstruction of the court's process. Furthermore, the court found that the mother had been denied natural justice during the proceedings, as the father had not provided her with an opportunity to be heard before the contempt application was made. Consequently, the appeal against the conviction imposed by Benjamin J on 24 August 2010 was allowed, and the sentence was set aside. The court also granted the mother a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth), which would allow the Attorney-General to authorise a payment to the mother in respect of the costs incurred by her in relation to the appeal.

Orders

Orders of the court

The father’s contempt application filed on 28 January 2009 is dismissed.

The appeal against the conviction imposed by Benjamin J on 24 August 2010 is allowed and the sentence set aside.

The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

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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