Coalter & Loxton - [2021] FedCFamC1F 283

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Coalter & Loxton [2021] FedCFamC1F 283

File number(s): SYC 4681 of 2016

Judgment of: HENDERSON J

Date of judgment: 15 December 2021

Catchwords: FAMILY LAW – CONTRAVENTION – Respondent pled guilty to 3 counts of breaching financial orders of the Court – Serious, ongoing and flagrant breaches of the Court orders and obligations of disclosure – Respondent failed to attend hearing – Where no reasonable excuse was found
Sentence – applicant mother seeks a term of imprisonment pursuant to the Courts powers under section 112AD(2)(d) of the Family Law Act 1975 (Cth)(“the Act”) – Where the court is satisfied that it would not be appropriate to deal with the contravention under any other option as set out in subsections (a) to (c) of section 112AD(2) of the Act other than term of imprisonment – applicant sentenced to a term of imprisonment of 6 months, suspended on conditions – Warrant to issue, to lie in registry and to be activated in event father fails to comply with conditions of the suspended sentence.

Legislation:
Family Law Act 1975 (Cth) Part XIIA, ss112AD, 112AE, 112AF, 112AG

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.02

Cases cited: Cluny & Skinner(No 2) [2017] FamCA 547

Division: Division 1 First Instance

Number of paragraphs: 132

Date of hearing: 30 November 2021

Place: Sydney

Solicitor for the Applicant: Ms Carroll

Solicitor for the Respondent: Mr Yakenian
ORDERS

SYC 4681 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS COALTER

Applicant

AND:
MR LOXTON

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

15 DECEMBER 2021

THE COURT FINDS THAT:
1.The respondent, Mr Loxton born … 1985, is found guilty without reasonable excuse of contravening orders made on 12 May 2020.
2.The respondent, is found guilty without reasonable excuse of contravening Orders 1 and 2 of orders made on 20 August 2020
3.The respondent is found guilty without reasonable excuse of contravening Order 3 of orders made on 1 October 2020.

THE COURT ORDERS THAT:
4.Pursuant s 112AD(2)(d) of the Family Law Act 1975 (Cth), the respondent, Mr Loxton born … 1985, is sentenced to a term of imprisonment for 6 months commencing 15 December 2021 and ceasing on 15 June 2022.
5.The sentence is suspended on the following terms and conditions being complied with by the respondent by no later than 4 pm on 2 February 2022 which conditions are as follows;
6.That the respondent, Mr Loxton provide to the Solicitors for the Applicant the following:-
(a)all documents, records, writings, minutes and correspondence pertaining to the purchase and sale of real property by him, B Pty Ltd, C Pty Ltd and any other entity in which he has an interest or control, including by way of a business name, both within the States of New South Wales and Queensland or any other place within Australia;
(b)That the Respondent comply with the Orders of the Court made 16…

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 Coalter & Loxton

Details

AGLC: Coalter & Loxton [2021] FedCFamC1F 283
Case: [2021] FedCFamC1F 283
Decision Date

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia involved a hearing of the respondent father's reasonable excuse for his failure to comply with court orders to provide full and frank disclosure of his financial dealings and attend court hearings. The applicant, the respondent's former de facto partner, sought a term of imprisonment for the respondent's serious, ongoing, and flagrant breaches of court orders and obligations of disclosure. The court found the respondent guilty of the counts of contravening court orders without reasonable excuse. The court considered the legal issues surrounding the imposition of a sanction for failure to comply with orders under the Family Law Act 1975 (Cth) and determined that a term of imprisonment was the most appropriate sanction in this case. The court sentenced the respondent to a term of imprisonment of 6 months, suspended on conditions, to give him a last chance to comply with his obligations and the court's orders. If the respondent fails to comply with the conditions of the suspended sentence by 2 February 2022, a warrant for his arrest will issue, and he will be imprisoned until he complies with the conditions of his suspended sentence or the sentence expires.

Orders