Faukland and Shikia - [2016] FamCAFC 83

FAMILY COURT OF AUSTRALIA

FAUKLAND & SHIKIA

[2016] FamCAFC 83

FAMILY LAW – APPEAL – SENTENCING – CONTEMPT – Where the appellant appeals against the severity of his sentence – Where appellant sentenced to three months imprisonment for each contempt to be served consecutively and wholly suspended indefinitely – Whether the primary judge erred in ordering that the term of imprisonment be served consecutively – Whether the primary judge erred in suspending the term of imprisonment for an indefinite period – Where as a general rule a suspended sentence should only be suspended for a fixed term – Appeal allowed in part – Appellant re-sentenced – Consecutive terms to be wholly suspended for fixed term upon conditions.

Family Law Act 1975 (Cth): s 112AP

Abduramanoski and Abduramanoska (2005) FLC 93-215
Ascot Investments Pty Ltd and Harper (No. 3) (1982) FLC 91-253
Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319
Khademollah & Khademollah [2004] FamCA 26
Myers and Myers (2006) FLC 93-291

APPELLANT:

Mr Faukland

RESPONDENT:

Ms Shikia

FILE NUMBER:

MLC

4987

2014

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

25 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Ryan & Murphy JJ

HEARING DATE:

9 May 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 August 2015

LOWER COURT MNC:

[2015] FCCA 2307

REPRESENTATION

FOR THE APPELLANT:

In person

FOR THE RESPONDENT:

Not participating in the appeal

Orders

The appeal be allowed in part.
Order 3 made on 6 August 2015 be set aside.
The terms of imprisonment imposed pursuant to Orders (1) and (2) of the orders made on 6 August 2015 shall be served consecutively which terms are wholly suspended until 31 December 2018 upon condition that the appellant complies with Order 5 of the orders made on 6 August 2015 and all orders and undertakings made as and from the date of these orders pursuant to the Family Law Act 1975 (Cth) in proceedings between him and the respondent.
In the event that it is alleged that the appellant has committed a breach of the orders referred to in Order 3 of these orders, he be brought before Judge Bender, or in her absence another judge of the Federal Circuit Court of Australia, to show cause why the terms of imprisonment imposed by the orders of 6 August 2015 should not be served forthwith.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Faukland & Shikia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 62 of 2015
File Number: MLC 4987 of 2014

Mr Faukland

Appellant

And

Ms Shikia

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed on 31 August 2015, Mr Faukland (“the appellant”) appeals against the severity of the sentence imposed on him for contempt. The contempt arises in the context…

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.

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Details

Case: [2016] FamCAFC 83
Decision Date: 25 May 2016

CaseChat Overview and Summary

The case of Faukland and Shikia was before the Family Court of Australia, with an appeal subsequently heard by the Full Court of the Federal Circuit Court of Australia. The dispute between the parties revolved around issues of family law, specifically breaches of court orders and subsequent penalties imposed by the Family Court. The appellant, Faukland, appealed certain aspects of the orders made by the Family Court on 6 August 2015, which included terms of imprisonment and conditions for their suspension.

The legal issues before the court were whether the appeal should be allowed, and if so, to what extent. Specifically, the court needed to determine if the penalties imposed by the Family Court were appropriate and whether the conditions of suspension were adequately justified. The court was also required to consider whether the appeal had merit in relation to the terms of imprisonment and their application.

In its reasoning, the court found that the appeal should be allowed in part. The terms of imprisonment imposed by the Family Court were deemed appropriate, but the court found fault with the manner in which the imprisonment was to be served. The court ruled that the terms of imprisonment should be served consecutively, not concurrently as ordered by the Family Court. Additionally, the court determined that the orders of 6 August 2015 should be suspended until 31 December 2018, contingent on compliance with specified conditions. Should a breach of the orders be alleged, the appellant would be required to appear before the court to justify why the imprisonment terms should not be enforced immediately.

Orders

Orders of the court

The appeal be allowed in part.

Order 3 made on 6 August 2015 be set aside.

The terms of imprisonment imposed pursuant to Orders (1) and (2) of the orders made on 6 August 2015 shall be served consecutively which terms are wholly suspended until 31 December 2018 upon condition that the appellant complies with Order 5 of the orders made on 6 August 2015 and all orders and undertakings made as and from the date of these orders pursuant to the Family Law Act 1975 (Cth) in proceedings between him and the respondent.

In the event that it is alleged that the appellant has committed a breach of the orders referred to in Order 3 of these orders, he be brought before Judge Bender, or in her absence another judge of the Federal Circuit Court of Australia, to show cause why the terms of imprisonment imposed by the orders of 6 August 2015 should not be served forthwith.

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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