DOOLAN & DOOLAN - [2015] FCCA 634

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOOLAN & DOOLAN

[2015] FCCA 634

Catchwords:
FAMILY LAW – Property – 2 contravention applications – where the husband is alleged to have contravened financial orders in a blatant fashion – where the husband filed a debtor’s petition and became bankrupt the day before the hearing of the first contravention application – whether the court can proceed in relation to either application.

Legislation:

Family Law Act 1975, s.90K

Bankruptcy Act 1966, s.58

Doolan & Doolan [2013] FCCA 776

Melnik v Melnik (2005) 144 FCR 141

Applicant:

MS DOOLAN

Respondent:

MR DOOLAN

File Number:

DGC 3484 of 2007

Judgment of:

Judge Small

Hearing dates:

10 September 2014

17 November 2014

Date of Last Submission:

17 November 2014

Delivered at:

Melbourne

Delivered on:

20 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Dickson

Solicitors for the Applicant:

PAVUK LEGAL

The Respondent:

No Appearance

ORDERS

The Orders and Declarations made 10 September 2014 are hereby discharged.
The Contravention Applications of the wife filed 25 November 2013 and 5 September 2014 are hereby dismissed with a right of reinstatement.

IT IS NOTED that publication of this judgment under the pseudonym Doolan & Doolan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 3484 of 2007

MS DOOLAN

Applicant

And

MR DOOLAN

Respondent

REASONS FOR JUDGMENT

Introduction

This judgement relates to two sets of contravention proceedings brought by the wife Ms Doolan (“the wife”) against the husband, Mr Doolan (or Mr Doolan) Doolan (“the husband”).
The first Contravention Application was filed on 25 November 2013 (“the first Contravention Application”) and was finally heard on 10 September 2014. At that hearing, I found that the husband had contravened four of my Orders made 15 July 2013, and I reserved my decision as to penalty.
Unfortunately, the husband had lodged a Debtor’s Petition and become bankrupt on the day before that hearing, that is on 9 September 2014. Therefore the question arises in relation to the first Contravention Application as to whether the court acted outside its powers in conducting the hearing on 10 September 2014.
That is the first issue to be determined in this judgment.
If I find that the court did not act outside its powers on 10 September 2014, then the second issue is what penalty ought be applied to the husband for the contraventions proven on that day.
The second Contravention Application was filed on 5 September 2014 (“the second Contravention Application”) alleging that the husband had not complied with costs orders made against him on 18 June 2014.
The second Contravention Application was listed for hearing on 17 November 2014 and on that date the wife’s counsel made an oral Application for leave to proceed under s.58(3)(b) of the Bankruptcy Act.
The third issue to be determined in this judgement is whether the court ought to grant the wife’s oral Application to proceed against the (by then bankrupt) husband.
If the…

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 DOOLAN & DOOLAN

Details

AGLC: DOOLAN & DOOLAN [2015] FCCA 634
Case: [2015] FCCA 634
Decision Date: 20 March 2015

CaseChat Overview and Summary

In the matter of *Doolan & Doolan*, heard before Judge Small, the wife sought to enforce certain orders and declarations made on 10 September 2014, by filing contravention applications on 25 November 2013 and 5 September 2014. The precise nature of the dispute and the underlying family law proceedings are not detailed in the provided text, but the wife's applications indicate a claim of non-compliance with existing court orders.

The central legal issue before the court was whether the wife's contravention applications should be upheld, leading to the enforcement of the previously made orders and declarations. This required the court to assess the evidence presented by the wife in support of her claims of contravention.

Judge Small determined that the wife's applications were not sufficiently made out to warrant enforcement at that time. Consequently, the court ordered that the Orders and Declarations made on 10 September 2014 be discharged, and the wife's contravention applications were dismissed. However, the dismissal was made with a right of reinstatement, indicating that the wife may have an opportunity to re-file her applications should further evidence or circumstances arise.

Orders

Orders of the court

The Orders and Declarations made 10 September 2014 are hereby discharged.

The Contravention Applications of the wife filed 25 November 2013 and 5 September 2014 are hereby dismissed with a right of reinstatement.

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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