Coalter & Loxton (No 2) - [2022] FedCFamC1F 869

Federal Circuit and Family Court of Australia
(DIVISION 1)
Coalter & Loxton (No 2) [2022] FedCFamC1F 869

File number: SYC 4681 of 2016

Judgment of: HENDERSON J

Date of judgment: 27 September 2022

Catchwords:
FAMILY LAW – CONTRAVENTION – Where the applicant has filed a fourth Contravention Application against the respondent – Where the respondent has previously been found guilty of contravening orders without reasonable excuse and sentenced to a term of imprisonment for six months – Where the alleged contraventions are breaches of the orders made following the sentencing of the respondent – Finding the respondent guilty on three counts of breaching orders without a reasonable excuse – Matter adjourned for sentencing.

FAMILY LAW – CONTEMPT – In the face of Court – Whether the respondent’s continued contraventions of orders made to appear in Court in-person or via Microsoft Teams can appear as a contempt in the face of or hearing of Court sufficient to justify issuing a warrant for his arrest to attend Court for sentencing – Finding the respondent’s conduct appears to the Court to be a contempt in the face of or hearing of Court – Application of rule 11.70(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Orders made for a warrant to lie in the registry for the arrest of the respondent to ensure his attendance at the adjourned date for sentencing.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.70(1)(a), (1)(b).

Cases cited:
Coalter & Loxton [2021] FedCFamC1F 283.

Witham v Holloway (1995) 131 ALR 401; [1995] HCA 3.

Division: Division 1 First Instance

Number of paragraphs: 36

Date of last submissions: 27 September 2022

Date of hearing: 26–27 September 2022

Place: Sydney (via Microsoft Teams)

Solicitor Advocate for the Applicant: Ms Carroll

Solicitor for the Applicant: Crawford Ryan Lawyers Pty Ltd

Solicitor Advocate for the Respondent: Mr Yakenian

Solicitor for the Respondent: Juris League Consultancy
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:

27 SEPTEMBER 2022

THE COURT FINDS THAT:
1.The respondent, Mr Loxton born 1985, is found guilty without reasonable excuse of contravening Order 3 of the orders made 19 May 2022.
2.The respondent, Mr Loxton born 1985, is found guilty without reasonable excuse of contravening Order 2 of the orders made 10 August 2021.
3.The respondent, Mr Loxton born 1985, is found guilty without reasonable excuse of contravening Order 6(d), (j) and (k) of the orders made 15 December 2021.

AND THE COURT ORDERS THAT:
4.The Contravention Application filed on 4 August 2022 be adjourned to 10:00am on 9 November 2022 via Microsoft Teams for sentence.
5.The respondent is to attend the Contravention Hearing on 9 November 2022 via Microsoft Teams.
6.Pursuant to rule 11.70(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, a warrant be…

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 (No 2)

Details

AGLC: Coalter & Loxton (No 2) [2022] FedCFamC1F 869
Case: [2022] FedCFamC1F 869
Decision Date

CaseChat Overview and Summary

In the matter of Coalter & Loxton (No 2), Ms Coalter, the applicant, filed a fourth Contravention Application against Mr Loxton, the respondent, alleging he had breached various court orders. Mr Loxton had previously been found guilty of contravening orders without reasonable excuse and sentenced to imprisonment. The legal issues before the court included whether Mr Loxton was guilty of breaching specific orders and whether his conduct constituted contempt in the face of the court, warranting a warrant for his arrest. The court found Mr Loxton guilty of breaching three orders without reasonable excuse and determined his conduct to be a contempt in the face of the court. Consequently, the court issued a warrant for his arrest to ensure his attendance at the sentencing hearing.

The court began by examining the evidence presented by Mr Loxton, who failed to appear for the hearing on the grounds of poor reception and lack of a computer. The court rejected these excuses, noting that Mr Loxton had previously failed to comply with court orders, even when sentenced to imprisonment. The court found Mr Loxton guilty of breaching Order 3 of the orders made on 19 May 2022, Order 2 of the orders made on 10 August 2021, and Order 6 of the orders made on 15 December 2021. The breaches included failing to appear via Microsoft Teams, failing to pay costs, and failing to provide financial information as ordered. The court concluded that Mr Loxton's conduct demonstrated a clear disregard for the court's orders and the administration of justice.

The court then addressed whether Mr Loxton's conduct constituted contempt in the face of the court, which would justify issuing a warrant for his arrest. The court found that Mr Loxton's repeated failures to comply with court orders and attend hearings, despite multiple opportunities and legal representation, indicated a serious interference with the court's processes. Citing the High Court decision in Witham v Holloway, the court emphasised that non-compliance with court orders constitutes an interference with the administration of justice. The court determined that issuing a warrant was necessary to ensure Mr Loxton's attendance at the sentencing hearing and to maintain the integrity of the court's processes. Therefore, the court issued a warrant for Mr Loxton's arrest to lie in the registry until the sentencing hearing on 9 November 2022. If Mr Loxton failed to appear, the warrant would be executed, and he would be brought before the court as soon as practicable.

Orders