Hatfield & Rivas

Case [2024] FedCFamC1A 202

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hatfield & Rivas [2024] FedCFamC1A 202

Appeal from: Hatfield & Rivas [2024] FedCFamC2F 916
Appeal number: NAA 176 of 2024
File number: MLC 5988 of 2021
Judgment of: AUSTIN J
Date of judgment: 31 October 2024
Catchwords: FAMILY LAW – APPEAL – Where an appeal is brought from the dismissal of the husband’s contravention application – Where the primary judge fell into error by conflating the different burdens of proof borne by the parties – Where the primary judge incorrectly applied new legislation to historic contraventions – Appeal allowed – Contravention application remitted for re-hearing by another judge – Where the husband is granted a costs certificate.
Legislation:

Acts Interpretation Act 1901 (Cth) Sch 2

Family Law Act 1975 (Cth) Pt VII, Div 6, 13A, ss 60CA, 65AA, 70NAC, 70NAD, 70NADA

Family Law Amendment Act 2023 (Cth) ss 2, 7

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.69

Cases cited:

Dobbs & Dobbs (2021) FLC 94-021; [2021] FamCAFC 78

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edinger & Duy (2023) 68 Fam LR 55; [2023] FedCFamC1A 194

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Huda v Huda (2018) FLC 93-837; [2018] FamCAFC 85

Lim v Comcare (2019) 165 ALD 217; [2019] FCAFC 104

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Repatriation Commission v Nation (1995) 57 FCR 25; [1995] FCA 1277

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Number of paragraphs: 77
Date of hearing: 31 October 2024
Place: Melbourne
Counsel for the Appellant: Mr Werner
Solicitor for the Appellant: Johnston Family Law
The Respondent: Litigant in person

ORDERS

NAA 176 of 2024
MLC 5988 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR HATFIELD

Appellant
AND:

MS RIVAS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

31 OCTOBER 2024

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The order made on 12 June 2024 is set aside.

3.The Application-Contravention filed by the appellant on 9 February 2024 (confined to Counts 1, 2, 7, 8 and 10) is remitted for re-hearing by another judge of the Federal Circuit and Family Court of Australia (Division 2).

4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.

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

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Details
AGLC
Hatfield & Rivas [2024] FedCFamC1A 202
Case
[2024] FedCFamC1A 202
Decision Date

CaseChat Overview and Summary

The appeal in this matter was brought by the father, Mr Hatfield, against the mother, Ms Rivas, from a decision made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 12 June 2024. The decision dismissed the father’s contravention application, wherein he sought to prosecute the mother for multiple breaches of parenting orders. The mother had been found to have contravened certain parenting orders but had argued that her contraventions were reasonably excused. The father's appeal to this court was allowed on the basis of errors in the application of the law by the primary judge.

The appeal raised several legal issues, including whether the primary judge correctly identified and applied the different burdens of proof applicable to the parties in contravention proceedings. The father argued that the primary judge incorrectly conflated the mother's burden to prove the reasonableness of her excuse with the father's burden to prove the contravention. Furthermore, the appeal contested whether the primary judge had correctly applied the new provisions of Pt VII, Div 13A of the Family Law Act 1975 (Cth) to the mother’s contraventions, which were alleged to have occurred before the new provisions came into effect.

In allowing the appeal, the court found that the primary judge had indeed erred in applying the new provisions to the contraventions which occurred prior to their enactment. This misapplication meant that the contravention proceeding could not be concluded within the appeal. Additionally, the court found that the primary judge had incorrectly understood the respective burdens of proof for the parties. The misapplication of the law by the primary judge led to the conclusion that the appeal must be allowed and the contravention application remitted for re-hearing by another judge. The father was granted a costs certificate for the appeal, while the mother’s application for costs was dismissed as she was not at fault for the error.

The court made several orders to reflect its decision. The appeal was allowed, and the order made on 12 June 2024 was set aside. The contravention application filed by the father was remitted for re-hearing by another judge of the Federal Circuit and Family Court of Australia (Division 2). The father was granted a costs certificate for the appeal, while the mother's application for costs was dismissed. These orders ensure that the contravention application is reconsidered with the correct legal framework and that the father is appropriately compensated for the costs incurred in the appeal process.

Orders

Orders of the court

NAA 176 of 2024

MLC 5988 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HATFIELD

Appellant

AND:

MS RIVAS

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

31 OCTOBER 2024

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The order made on 12 June 2024 is set aside.

3. The Application-Contravention filed by the appellant on 9 February 2024 (confined to Counts 1, 2, 7, 8 and 10) is remitted for re-hearing by another judge of the Federal Circuit and Family Court of Australia (Division 2).

4. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.

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).

Background

Background to the litigation

These reasons explain why the father’s appeal from a decision made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 12 June 2024 to dismiss the contravention application by which he prosecuted the wife for multiple breaches of parenting orders must be allowed and the dispute remitted for re-hearing.Background The parties have two children, now aged 17 and 12 years. Final parenting orders in respect of the children were made between the parties in March 2023. Contextually, the orders provided for the parties to have equal shared parental responsibility for the children, for the children to live predominantly with the mother, and for them to live with the father for substantial periods of time. More specifically for the purposes of the contravention proceedings, the orders provided for:(a)the parties to inform one another as soon as practicable about any injury or medical condition suffered by the children requiring professional care and to keep one another informed of the children’s treating doctors (Order 2(h)) – the alleged breach of which order was the subject of Count 2;(b)the parties to inform one another within 24 hours of any school absence or late attendance by either child and the reason therefor (Order 18) – the alleged breaches of which order were the subject of Counts 7 and 8;(c)the parties’ joint obligation to keep the children’s passports current and for the passports to be furnished to the other within seven days of a request to facilitate travel and the acquisition of visas (Order 19) – the alleged breach of which order was the subject of Count 10;(d)the parties’ joint obligation to attend upon a psychologist to improve their communication and, in the event of their failure to agree upon a psychologist, the mother to choose one from a list of three provided by the father (Order 20) – the alleged breach of which order was the subject of Count 1. The father filed an Application-Contravention in February 2024 alleging 10 counts of the mother’s breach of the parenting orders. On the first day of the hearing before the primary judge, five counts were withdrawn and dismissed, so the father prosecuted only the remaining five counts (at [9]), in support of which he relied upon his affidavit affirmed on 11 January 2024 (at [6]-[7]). The reasons for judgment record the mother denied each of the remaining five counts (at [10] and [12]), but that is not strictly correct. The mother denied Counts 2, 7, 8 and 10. However, in respect of Count 1, she admitted the contravention but maintained the breach was reasonably excused. In relation to that count, the mother had this exchange with the primary judge:HIS HONOUR: [The mother] is alleged by contravention application filed 9 February 2024 that on 14 April 2024, you did contravene without reasonable excuse, order 20 of the final orders made 1 March 2023. Do you admit or deny the allegation?[The mother]: I’m just reading it. I admit to that, yes. Oh sorry, so without reasonable excuse, I deny that.(Transcript 11 June 2024, p.22 lines 8–14) (Emphasis added)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, in this instance, while cognisant of the issue, the primary judge expressly applied the new, rather than the old, provisions of Pt VII, Div 13A of the Act (at [14]). That error precludes the contravention proceeding from now being concluded within the appeal, either by hearing the mother’s evidence of “reasonable excuse” in defence of Count 1 or by determining the penalties imposed upon her for the proven contraventions.Conclusion The appeal is allowed. There is no option but to remit the contravention application for re-hearing by another judge, as the father sought, though the remitter is confined to the five counts which the appellant prosecuted at first instance (Counts 1, 2, 7, 8 and 10). The father’s application for costs against the mother is refused as she was not at fault for the error. However, the father is granted a costs certificate for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth), as he alternatively sought. The appeal succeeded for an error of law. The mother was self-represented in the appeal and is ineligible for a costs certificate.

Ratio Decidendi

Legal Principle Established

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