Danks and McCabe (No.3) - [2016] FCCA 2367

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANKS & MCCABE (No.3)

[2016] FCCA 2367

Catchwords:
FAMILY LAW – Property – contravention application – one count – failure to remove property – alleged contravention is not made out – contravention application dismissed – costs ordered.

Legislation:

Family Law Act 1975, ss.112AB, 117, 117(2A)

Federal Circuit Court Rules 2001 (Cth), Sch. 1
Planning and Environment Act 1987 (Vic)

Cases cited:

Davint & Malburon [2015] FamCAFC 176

Applicant:

MR DANKS

Respondent:

MS MCCABE

File Number:

MLC 4677 of 2012

Judgment of:

Judge Hartnett

Hearing date:

31 August 2016

Delivered at:

Melbourne

Delivered on:

9 September 2016

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Lampe Family Lawyers

ORDERS

Count 5 of the further amended application alleging contravention filed on 10 June 2014 is not proven on the balance of probabilities and the allegation is dismissed.
The Applicant pay the costs of the Respondent in respect of the remitted proceedings involving Count 5 fixed in the sum of $8,832. There be a stay on such payment of 90 days.
The Applicant otherwise pay the costs of the further amended application alleging contravention filed on 10 June 2014 as to Counts 1, 2 and 3 fixed in the sum of $7,000. There be a stay on such payment of 90 days.

IT IS NOTED that publication of this judgment under the pseudonym Danks & McCabe (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4677 of 2012

MR DANKS

Applicant

And

MS MCCABE

Respondent

REASONS FOR JUDGMENT

On the 3 February 2014, the Applicant filed a contravention application alleging breach of orders of the Court by the Respondent. That contravention application was amended by the Applicant on 12 February 2014 and further amended by him in an application filed on 10 June 2014.
Orders made by Judge Turner on 1 September 2014 dismissed the Applicant’s further amended contravention application of 10 June 2014 and provided for the Applicant to pay the Respondent’s costs.
By notice of appeal filed on 8 September 2014, the Applicant appealed against the orders made by Judge Turner on 1 September 2014. The Respondent opposed the appeal. The appeal proceeded before Strickland J in the appellate jurisdiction of the Family Court of Australia at Melbourne on 25 February 2015. In respect of that appeal, on 15 September 2015, His Honour ordered, relevantly, as follows:-
“1. The appeal be allowed in part.
2. Paragraph 1 of the orders made on 1 September 2014 be set aside to the extent that it dismisses count 5 of the Further Amended Application Alleging Contravention filed on 10 June 2014.
3. Paragraph 2 of the orders made on 1 September 2014 be set aside.
4. The oral applications of the parties for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
5. The Notice of Appeal be adjourned for a directions…

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 Danks and McCabe (No.3)

Details

AGLC: Danks and McCabe (No.3) [2016] FCCA 2367
Case: [2016] FCCA 2367
Decision Date: 9 September 2016

CaseChat Overview and Summary

In *Danks and McCabe (No.3)*, Judge Hartnett considered allegations of contravention brought by the Applicant against the Respondent. The dispute concerned the Applicant's claims as set out in a further amended application filed on 10 June 2014, specifically relating to Counts 1, 2, 3, and 5.

The primary legal issue before the Court was whether Count 5 of the Applicant's amended application, alleging contravention, had been proven on the balance of probabilities. The Court was also required to determine the appropriate orders for costs in light of its findings.

Judge Hartnett found that the Applicant had failed to prove Count 5 of the further amended application on the balance of probabilities, and accordingly, that allegation was dismissed. The Court ordered that the Applicant pay the Respondent's costs in respect of the remitted proceedings concerning Count 5, fixed at $8,832, with a 90-day stay on payment. Furthermore, the Applicant was ordered to pay the Respondent's costs for the remainder of the further amended application (Counts 1, 2, and 3), fixed at $7,000, also with a 90-day stay on payment.

Orders

Orders of the court

Count 5 of the further amended application alleging contravention filed on 10 June 2014 is not proven on the balance of probabilities and the allegation is dismissed.

The Applicant pay the costs of the Respondent in respect of the remitted proceedings involving Count 5 fixed in the sum of $8,832. There be a stay on such payment of 90 days.

The Applicant otherwise pay the costs of the further amended application alleging contravention filed on 10 June 2014 as to Counts 1, 2 and 3 fixed in the sum of $7,000. There be a stay on such payment of 90 days.

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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