Darley and Darley - [2017] FamCA 827

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY

[2017] FamCA 827

FAMILY LAW – ORDERS – Contravention

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Ms Darley

RESPONDENT:

Mr Darley

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

FILE NUMBER:

BRC

2317

2013

DATE DELIVERED:

13 October 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

12 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston, Norman & Kingston (excused)

Orders

IT IS ORDERED THAT

Counts 6 and 7 on the 3^rd page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 8 and 9 on the 4^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 10 and 11 on the 5^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 12 and 13 on the 6^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 14 and 15 on the 7^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 16 and 17 on the 8^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 18 and 19 on the 9^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 20 and 21 on the 10^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 22 and 23 on the 11^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 24 and 25 on the 12^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 26 and 27 on the 13^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 28 and 29 on the 14^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 30 and 31 on the 15^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 32 and 33 on the 16^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 34 and 35 on the 17^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 48 and 49 on the 24^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 50 and 51 on the 25^th page of the Application – Contravention filed 5 May 2016 are dismissed.
Counts 54 and 55 on the 27^th page of the Application – Contravention filed 5 May 2016 are dismissed.
No sanction is imposed for the Respondent’s contravention, without reasonable excuse, of Clause 4 of the Order made on 12 September 2013, being Counts 52 and 53 on the 26^th page of the Application – Contravention filed 5 May 2016.

NOTATION

(A)Counts 54 and 55…

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 Darley and Darley

Details

AGLC: Darley and Darley [2017] FamCA 827
Case: [2017] FamCA 827
Decision Date: 13 October 2017

CaseChat Overview and Summary

This matter concerned an application for contravention filed on 5 May 2016, brought by the applicant against the respondent. The court, presided over by Hogan J, was required to determine a series of alleged contraventions of court orders.

The central legal issues before the court were whether the respondent had contravened specific clauses of prior court orders made on 3 June 2013 and 12 September 2013, and if so, whether such contraventions were committed with or without reasonable excuse. The court also had to consider the imposition of sanctions for any proven contraventions.

Hogan J's reasoning led to the dismissal of numerous counts alleging contraventions. However, the court found that the respondent, with reasonable excuse, contravened Clause 4 of the Order made on 12 September 2013 by failing to return the keys to the applicant. Conversely, the court found that the respondent, without reasonable excuse, contravened the same Clause 4 by failing to return the gate opener to the applicant. Despite these findings, no sanction was imposed for the contravention concerning the gate opener. Additionally, counts 54 and 55 were dismissed as a consequence of findings that the respondent contravened Clause 10 of the Order made on 3 June 2013 with reasonable excuse.

Orders

Orders of the court

IT IS ORDERED THAT

Counts 6 and 7 on the 3rd page of the Application – Contravention filed 5 May 2016 are dismissed.

Counts 8 and 9 on the 4th page of the Application – Contravention filed 5 May 2016 are dismissed.

Counts 10 and 11 on the 5th page of the Application – Contravention filed 5 May 2016 are dismissed.

Counts 12 and 13 on the 6th page of the Application – Contravention filed 5 May 2016 are dismissed.

Counts 14 and 15 on the 7th page of the Application – Contravention filed 5 May 2016 are dismissed.

Counts 16 and 17 on the 8th page of the Application – Contravention filed 5 May 2016 are dismissed.

Counts 18 and 19 on the 9th page of the Application – Contravention filed 5 May 2016 are dismissed.

Counts 20 and 21 on the 10th page of the Application – Contravention filed 5 May 2016 are dismissed.

Counts 22 and 23 on the 11th page of the Application – Contravention filed 5 May 2016 are dismissed.

10.

Counts 24 and 25 on the 12th page of the Application – Contravention filed 5 May 2016 are dismissed.

11.

Counts 26 and 27 on the 13th page of the Application – Contravention filed 5 May 2016 are dismissed.

12.

Counts 28 and 29 on the 14th page of the Application – Contravention filed 5 May 2016 are dismissed.

13.

Counts 30 and 31 on the 15th page of the Application – Contravention filed 5 May 2016 are dismissed.

14.

Counts 32 and 33 on the 16th page of the Application – Contravention filed 5 May 2016 are dismissed.

15.

Counts 34 and 35 on the 17th page of the Application – Contravention filed 5 May 2016 are dismissed.

16.

Counts 48 and 49 on the 24th page of the Application – Contravention filed 5 May 2016 are dismissed.

17.

Counts 50 and 51 on the 25th page of the Application – Contravention filed 5 May 2016 are dismissed.

18.

Counts 54 and 55 on the 27th page of the Application – Contravention filed 5 May 2016 are dismissed.

19.

No sanction is imposed for the Respondent’s contravention, without reasonable excuse, of Clause 4 of the Order made on 12 September 2013, being Counts 52 and 53 on the 26th page of the Application – Contravention filed 5 May 2016.

NOTATION

(A) Counts 54 and 55 on the 27th page of the Application – Contravention filed 5 May 2016 were dismissed consequent upon findings that the Respondent contravened Clause 10 of the Order made on 3 June 2013 with reasonable excuse.

(B) The Court found that the Respondent, with reasonable excuse, contravened Clause 4 of the Order made on 12 September 2013, being Counts 52 and 53 on the 26th page of the Application – Contravention filed 5 May 2016, by failing to return the keys to the Applicant.

(C) The Court found that the Respondent, without reasonable excuse, contravened Clause 4 of the Order made on 12 September 2013, being Counts 52 and 53 on the 26th page of the Application – Contravention filed 5 May 2016, by failing to return the gate opener to the Applicant.

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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