Fowles & Fowles (No 7) - [2024] FedCFamC1F 880

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fowles & Fowles (No 7) [2024] FedCFamC1F 880

File number: MLC 8587 of 2015

Judgment of: HARTNETT J

Date of judgment: 19 December 2024

Catchwords: FAMILY LAW – PROPERTY – Enforcement Application – No need to resolve the judicial controversy – Earlier orders superseded by orders made within jurisdiction.

Legislation:
Family Law Act 1975 (Cth) s 149

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Division 11.2.1

Cases cited:
Gilford & Cavaco (2024) FLC 94-183

Vang & Chung (No 3) [2024] FedCFamC1A 199

Division: Division 1 First Instance

Number of paragraphs: 18

Date of hearing: 12 December 2024

Place: Melbourne

Counsel for the Applicant: Mr Sheales

Solicitor for the Applicant: Lander & Rogers

Solicitor for the Respondent: Nicholes Family Lawyers

ORDERS

MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FOWLES

Applicant

AND:
MR FOWLES

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS THAT:
1.Pursuant to rule 11.07(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and until further order:
(a)the husband MR FOWLES be and is hereby restrained by injunction from departing from the Commonwealth of Australia;
(b)the current passports of the husband MR FOWLES as issued by Australia, Country U and the United States of America remain in the Registry of the Court and continue to be held by the Registry without release to the husband;
(c)the name of the husband MR FOWLES born 1962 be placed on the Airport Watchlist and remain on the Airport Watchlist pending further order of the Court.

2.It is requested that the Australian Federal Police give effect to this order by placing the name MR FOWLES on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watchlist pending further order of the Court.
3.Otherwise the Enforcement Application filed 8 August 2024 be adjourned for hearing to a date to be fixed following the determination of the Contravention Application filed by the wife on 27 November 2024.
4.The Contravention Application filed 27 November 2024 is listed for hearing before Justice Hartnett on 9 April 2025 at 10.00am.
5.Each of the parties file and serve any affidavit material on which they seek to rely with the wife filing and serving such material at least 28 days prior to the hearing date, with the husband filing and serving any material at least 14 days prior to the hearing date, and thereafter with the wife filing and serving any further responsive material at least 7 days prior to the hearing date.

AND THE COURT NOTES THAT:
A.Pursuant to rule 11.67 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the husband may file material but is not required to do so.

Note: The form of the order is subject to the entry in…

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 Fowles & Fowles (No 7)

Details

AGLC: Fowles & Fowles (No 7) [2024] FedCFamC1F 880
Case: [2024] FedCFamC1F 880
Decision Date: 19 December 2024

CaseChat Overview and Summary

The case of Fowles & Fowles (No 7) involves the applicant, Ms Fowles, and the respondent, Mr Fowles. The matter pertains to an enforcement application seeking to restrain Mr Fowles from leaving Australia, to retain his passports in the custody of the court registry, and to place him on the Airport Watchlist. The application was heard by Justice Hartnett in the Federal Circuit and Family Court of Australia.

The central legal issues addressed by the court were whether the enforcement application should proceed and if it could be resolved without addressing broader judicial controversies. The court also had to determine if the earlier orders could be superseded by the current orders, ensuring they aligned with the jurisdiction of the Family Court.

Justice Hartnett determined that there was no need to resolve the judicial controversy as the current orders would supersede any earlier orders. The court found that the enforcement application could proceed within the jurisdiction of the Family Court. The orders granted included restraining Mr Fowles from leaving Australia, retaining his passports in the court registry, and placing his name on the Airport Watchlist. The enforcement application was adjourned pending the outcome of a contravention application. Each party was required to file and serve affidavit material within specified timelines for the hearing of the contravention application.

The court's final orders included restraining Mr Fowles from leaving Australia, retaining his passports in the court registry, and placing his name on the Airport Watchlist. The enforcement application was adjourned, and the contravention application was scheduled for a future hearing.

Orders

Orders of the court

MLC 8587 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FOWLES

Applicant

AND:

MR FOWLES

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS THAT:

1. Pursuant to rule 11.07(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and until further order:

(a) the husband MR FOWLES be and is hereby restrained by injunction from departing from the Commonwealth of Australia;

(b) the current passports of the husband MR FOWLES as issued by Australia, Country U and the United States of America remain in the Registry of the Court and continue to be held by the Registry without release to the husband;

(c) the name of the husband MR FOWLES born 1962 be placed on the Airport Watchlist and remain on the Airport Watchlist pending further order of the Court.

2. It is requested that the Australian Federal Police give effect to this order by placing the name MR FOWLES on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the husband’s name on the Watchlist pending further order of the Court.

3. Otherwise the Enforcement Application filed 8 August 2024 be adjourned for hearing to a date to be fixed following the determination of the Contravention Application filed by the wife on 27 November 2024.

4. The Contravention Application filed 27 November 2024 is listed for hearing before Justice Hartnett on 9 April 2025 at 10.00am.

5. Each of the parties file and serve any affidavit material on which they seek to rely with the wife filing and serving such material at least 28 days prior to the hearing date, with the husband filing and serving any material at least 14 days prior to the hearing date, and thereafter with the wife filing and serving any further responsive material at least 7 days prior to the hearing date.

AND THE COURT NOTES THAT:

A. Pursuant to rule 11.67 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) the husband may file material but is not required to do so.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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File number:	MLC 8587 of 2015
Judgment of:	HARTNETT J
Date of judgment:	19 December 2024
Catchwords:	FAMILY LAW – PROPERTY – Enforcement Application – No need to resolve the judicial controversy – Earlier orders superseded by orders made within jurisdiction.
Legislation:	Family Law Act 1975 (Cth) s 149 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Division 11.2.1
Cases cited:	Gilford & Cavaco (2024) FLC 94-183 Vang & Chung (No 3) [2024] FedCFamC1A 199
Division:	Division 1 First Instance
Number of paragraphs:	18
Date of hearing:	12 December 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Sheales
Solicitor for the Applicant:	Lander & Rogers
Solicitor for the Respondent:	Nicholes Family Lawyers

MLC 8587 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FOWLES Applicant
AND:	MR FOWLES Respondent

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	12 DECEMBER 2024