CARY & DALGARD (No.2) - [2019] FCCA 2206

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARY & DALGARD (No.2)

[2019] FCCA 2206

Catchwords:
CHILD SUPPORT – Contravention of financial and disclosure orders – contravention application – separate enforcement proceedings on foot.

Legislation:

Family Law Act 1975 (Cth), ss.112AB, 112AC, 112AD, 117

Federal Circuit Court Rules 2001 (Cth) rr.25B.16(1)(b)(i), 25B.17(2)

Cases cited:

Cary & Dalgard [2018] FCCA 2942

Applicant:

MS CARY

Respondent:

MR DALGARD

File Number:

MLC 7706 of 2009

Judgment of:

Judge Harland

Hearing dates:

30 April and 20 May 2019

Date of Last Submission:

20 May 2019

Delivered at:

Melbourne

Delivered on:

13 August 2019

REPRESENTATION

Solicitors for the Applicant:

Ms Geros of WMB Lawyers

The Respondent appearing in person

ORDERS

Count 1 of the contravention application is proved with the respondent having contravened order 6(a) of the orders made on 15 February 2018 without reasonable excuse.
Count 2 of the contravention application is proved with the respondent having contravened order 6(b) of the orders made on 15 February 2018 without reasonable excuse.
Count 3 of the contravention application is proved with the respondent having contravened orders 4 and 6 of the orders made on 12 April 2018 without reasonable excuse.
Count 4 of the contravention application is proved with the respondent having contravened orders 3 and 4 of the orders made on 25 June 2018 without reasonable excuse.
Count 5 be struck out.
Count 6 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 25 June 2018 without reasonable excuse.
In the event of any change in the Respondent’s employment circumstances, the Respondent is to inform applicant’s lawyers and the Department of Human Services: Child Support within 7 days of such change.
The Respondent is to keep the Applicant’s solicitor and the Department of Human Services informed of his current address, email and phone number until all outstanding debts are paid in full.
The Respondent pay costs in the sum of $10,414 with such sum to be paid in instalments in accordance with Order 3(b) of the Orders made 24 September 2018 in addition to the original amount owing for the applicant’s costs.
In respect of the contraventions found in Orders (1) to (4) and (6) above the Respondent is required to attend before Registrar Kaur on 13 August 2019 to enter into a bond without surety or security in accordance with section 112AF of the Family Law Act 1975 for a period of twelve (12) months upon the following conditions:
(a)to be of good behaviour;
(b)to comply with orders made on 24 September 2018 until the outstanding sums are paid in full;
(c)to pay the sum of $10,414 in further costs, such sum to be added to the amount owing pursuant to sum of $15,815.50 in legal costs.
(d)to notify the Department of Human Services: Child Support and the Applicant in writing within seven (7) days of commencing employment with any new employer the name address and telephone number of that employer.
The Applicant is at liberty to…

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

Case: [2019] FCCA 2206
Decision Date: 13 August 2019

CaseChat Overview and Summary

In *Cary & Dalgard (No.2)*, Judge Harland considered a contravention application brought by the applicant against the respondent concerning alleged breaches of financial and disclosure orders. The dispute centred on the respondent's failure to comply with various orders relating to child support payments and the disclosure of financial information.

The court was required to determine whether the respondent had contravened specific orders made on 15 February 2018, 12 April 2018, and 25 June 2018, and whether these contraventions were committed without reasonable excuse. Additionally, the court had to consider the appropriate orders to make in light of any proved contraventions, including the imposition of a bond and the payment of costs.

Judge Harland found that the respondent had contravened several of the applicant's orders without reasonable excuse, specifically relating to financial obligations and disclosure requirements. The court applied the principles of the *Family Law Act 1975* concerning contraventions and the imposition of bonds. The court ordered that counts 1, 2, 3, 4, and 6 of the contravention application be proved, while count 5 was struck out. The respondent was ordered to enter into a bond for twelve months, to be of good behaviour, comply with existing orders, and pay significant legal costs. Further orders were made regarding the respondent's ongoing obligation to inform the applicant and the Department of Human Services of any changes in employment circumstances and personal contact details until all outstanding debts were paid in full. The applicant was granted liberty to apply to restore the matter to the list in the event of any default.

Orders

Orders of the court

Count 1 of the contravention application is proved with the respondent having contravened order 6(a) of the orders made on 15 February 2018 without reasonable excuse.

Count 2 of the contravention application is proved with the respondent having contravened order 6(b) of the orders made on 15 February 2018 without reasonable excuse.

Count 3 of the contravention application is proved with the respondent having contravened orders 4 and 6 of the orders made on 12 April 2018 without reasonable excuse.

Count 4 of the contravention application is proved with the respondent having contravened orders 3 and 4 of the orders made on 25 June 2018 without reasonable excuse.

Count 5 be struck out.

Count 6 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 25 June 2018 without reasonable excuse.

In the event of any change in the Respondent’s employment circumstances, the Respondent is to inform applicant’s lawyers and the Department of Human Services: Child Support within 7 days of such change.

The Respondent is to keep the Applicant’s solicitor and the Department of Human Services informed of his current address, email and phone number until all outstanding debts are paid in full.

The Respondent pay costs in the sum of $10,414 with such sum to be paid in instalments in accordance with Order 3(b) of the Orders made 24 September 2018 in addition to the original amount owing for the applicant’s costs.

10.

In respect of the contraventions found in Orders (1) to (4) and (6) above the Respondent is required to attend before Registrar Kaur on 13 August 2019 to enter into a bond without surety or security in accordance with section 112AF of the Family Law Act 1975 for a period of twelve (12) months upon the following conditions:

(a) to be of good behaviour;

(b) to comply with orders made on 24 September 2018 until the outstanding sums are paid in full;

(c) to pay the sum of $10,414 in further costs, such sum to be added to the amount owing pursuant to sum of $15,815.50 in legal costs.

(d) to notify the Department of Human Services: Child Support and the Applicant in writing within seven (7) days of commencing employment with any new employer the name address and telephone number of that employer.

11.

The Applicant is at liberty to apply on seven (7) days’ notice by way of an Application in a Case and an affidavit in support to restore the matter to the List in the event of any default of payment by the Respondent or the Respondent notifying the applicant of any change of employment.

NOTATION

(A) The applicant’s lawyer advises that as at 14 May 2019 the respondent owed $5,560.01 in outstanding child support and $15,815.50 in legal costs, which does not include the additional amount of legal costs set out in Order 11.

(B) Order 3 of the Orders dated 24 September 2018 are as follows:

3. The Applicant has leave to file with the Registrar of the Court two Third Party Debt Notices (‘TPDN’) for issuing on Company B Pty Ltd being:

(a) In the sum of $350.00 per week to be paid to the Registrar of Child Support; and

(b) In the sum of $150.00 per week to be paid to WMB Lawyers.

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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