BEST & BEST - [2016] FamCAFC 190

FAMILY COURT OF AUSTRALIA

BEST & BEST

[2016] FamCAFC 190

FAMILY LAW – APPEAL – CONTEMPT – JURISDICTION – Where the trial judge dismissed an application for contempt in which the father alleged commissions of perjury by the mother – Where the father asserted that the trial judge erred in limiting his consideration of the issue to sections 35 and 112AP of the Family Law Act 1975 (Cth) – Where these were the appropriate provisions under which the Court deals with applications for contempt – Where it was not necessary for the Court to have recourse to its accrued jurisdiction – No appealable error demonstrated.

FAMILY LAW – APPEAL – CONTEMPT – Where the father asserted that the trial judge erred in finding that the contempt application was incompetent – Where the contempt application did not particularise the alleged acts of perjury in sufficient detail – No appealable error demonstrated.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the father asserted that the trial judge had an obligation to re-formulate the charges of contempt on the father’s behalf – Where the father alleged that the trial judge failed to follow the procedures for hearing contempt applications – Where the trial judge found the father’s application to be incompetent and thus the further procedures did not apply – No appealable error demonstrated.

FAMILY LAW – APPEAL – BIAS – Where the father asserted that the trial judge’s reasons for judgment demonstrated apprehended bias – Where there was no basis for such findings to be made – No appealable error demonstrated.

Family Law Act 1975 (Cth) ss 35, 112AP, 117
Family Law Rules 2004 (Cth) Part 21.1

Coward v Stapleton (1953) 90 CLR 573
LGM & CAM (Contempt)(No 2) (2008) FLC 93-355
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Tate v Tate (2002) 29 Fam LR 195

APPELLANT:

Mr Best

RESPONDENT:

Ms Best

FILE NUMBER:

WOC

2010

APPEAL NUMBER:

164

2015

DATE DELIVERED:

27 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Cronin JJ

HEARING DATE:

15 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 September 2015

LOWER COURT MNC:

[2015] FamCA 1164

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders

The appeal against the order of Le Poer Trench J made on 1 September 2015 is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be assessed in default of agreement, and paid within twenty-eight (28) days of agreement or assessment.

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 Best & Best 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…

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: BEST & BEST [2016] FamCAFC 190
Case: [2016] FamCAFC 190
Decision Date: 27 September 2016

CaseChat Overview and Summary

The appeal involved a dispute between the father and mother regarding an application for contempt made by the father. The father alleged that the mother had committed perjury, and the trial judge dismissed the application. The case was heard in the Family Court of Australia. The father's appeal was based on several grounds, including the trial judge's handling of the contempt application, the sufficiency of the particulars of the alleged perjury, the trial judge's obligation to re-formulate the charges, and the apprehension of bias.

The primary legal issues before the court were whether the trial judge erred in limiting his consideration of the contempt application to sections 35 and 112AP of the Family Law Act 1975 (Cth), whether the application was sufficiently particularised, whether the trial judge should have re-formulated the charges, and whether the trial judge demonstrated apprehended bias. The court found that the trial judge did not err in limiting his consideration to the relevant sections of the Family Law Act, as these were the appropriate provisions for dealing with contempt applications. The court also found that the application did not particularise the alleged acts of perjury in sufficient detail, and that the trial judge did not have an obligation to re-formulate the charges as the application was found to be incompetent. Finally, the court found that there was no basis for the apprehension of bias, as the trial judge's reasons for judgment did not demonstrate any such bias.

The court dismissed the appeal and ordered the appellant to pay the respondent's costs of and incidental to the appeal. The appeal against the order of Le Poer Trench J made on 1 September 2015 was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal, such costs to be assessed in default of agreement, and paid within twenty-eight days of agreement or assessment. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal against the order of Le Poer Trench J made on 1 September 2015 is dismissed.

The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be assessed in default of agreement, and paid within twenty-eight (28) days of agreement or assessment.

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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