Herriot & Howes - [2020] FCCA 3483

FEDERAL CIRCUIT COURT OF AUSTRALIA
Herriot & Howes [2020] FCCA 3483

File number(s): BRC 32 of 2014

Judgment of: JUDGE MIDDLETON

Date of judgment: 21 December 2020

Catchwords: FAMILY LAW – contravention and contempt applications – where there are two children of the relationship – where final orders were made 12 July 2019.

Legislation: Family Law Act 1975 (Cth) Pt VII Div 13A, ss 60CA, 70NAC

Cases cited: Re Group Pty Ltd v Kazal (No.4) [2017] FCA 1084

Number of paragraphs: 52

Date of last submission/s: 28 October 2020

Date of hearing: 28 October 2020

Place: Brisbane

Counsel for the Applicant: Mr Galloway

Solicitor for the Applicant: HCM Legal

Counsel for the Respondent: Mr Baston

Solicitor for the Respondent: Hofstee Lawyers
ORDERS

BRC 32 of 2014

BETWEEN:
MR HERRIOT
Applicant

AND:
MS HOWES
Respondent

ORDER MADE BY:

JUDGE MIDDLETON

DATE OF ORDER:

21 DECEMBER 2020

THE COURT ORDERS:
1.The application for contravention filed 7 May 2020 is dismissed.
2.The application for contempt filed on 26 June 2020 is dismissed.
3.The application for contempt filed on 1 July 2020 is dismissed.
4.That the application in a case be adjourned for further mention to 9:30am on 11 February 2021 in the Federal Circuit Court of Australia at Brisbane.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Herriot & Howes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MIDDLETON
BACKGROUND

On 28 October 2020 I heard three applications filed by the applicant father on 7 May 2020 (contravention application), 26 June 2020 (contempt application) and 1 July 2020 (contempt application) respectively.
The applications relate to two children, X born 2005 (aged 15) and Y born 2007 (aged 13).
All three applications allege breaches of orders made on 12 July 2019.
The mother acknowledges that the child Y is not spending time with the father in accordance with the orders made 12 July 2019 but argues that she has a reasonable excuse for the non-compliance.
MATERIAL
The father relied upon the following:
(1)contravention application filed 7 May 2020,
(2)affidavit filed 7 May 2020,
(3)application for contempt filed 26 June 2020,
(4)affidavit filed 26 June 2020,
(5)application for contempt filed 1 July 2020,
(6)Affidavit filed 1 July 2020,
(7)Affidavit filed 14 October 2020 (submissions), and
(8)the order of 12 July 2019.
The mother relied upon the material as set out in her written submissions handed to the court on 28 October 2020. It should be noted that items 9, 10 and 11 were not filed with the court and as a result will not be relied upon. It is of course noted that the mother alleges that either there is no basis for the contravention or contempt alleged or that she has a reasonable excuse for the breach of 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 Herriot & Howes

Details

AGLC: Herriot & Howes [2020] FCCA 3483
Case: [2020] FCCA 3483
Decision Date: 21 December 2020

CaseChat Overview and Summary

Herriot & Howes concerned applications for contravention and contempt brought by one party against the other, relating to two children of the relationship. Final orders had been made on 12 July 2019. The proceedings were heard by Judge Middleton.

The court was required to determine whether the respondent had contravened the final orders of 12 July 2019, and whether the respondent had committed contempt of court in relation to those orders.

Judge Middleton dismissed all applications for contravention and contempt. The reasons for dismissal are not detailed in the provided text. The court noted that publication of the judgment under the pseudonym Herriot & Howes was approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth), which generally prohibits the publication of identifying information in family law proceedings.

The application in the case was adjourned for further mention to 9:30am on 11 February 2021 in the Federal Circuit Court of Australia at Brisbane.

Orders

Orders of the court

THE COURT ORDERS:

1. The application for contravention filed 7 May 2020 is dismissed.

2. The application for contempt filed on 26 June 2020 is dismissed.

3. The application for contempt filed on 1 July 2020 is dismissed.

4. That the application in a case be adjourned for further mention to 9:30am on 11 February 2021 in the Federal Circuit Court of Australia at Brisbane.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 32 of 2014
Judgment of:	JUDGE MIDDLETON
Date of judgment:	21 December 2020
Catchwords:	FAMILY LAW – contravention and contempt applications – where there are two children of the relationship – where final orders were made 12 July 2019.
Legislation:	Family Law Act 1975 (Cth) Pt VII Div 13A, ss 60CA, 70NAC
Cases cited:	Re Group Pty Ltd v Kazal (No.4) [2017] FCA 1084
Number of paragraphs:	52
Date of last submission/s:	28 October 2020
Date of hearing:	28 October 2020
Place:	Brisbane
Counsel for the Applicant:	Mr Galloway
Solicitor for the Applicant:	HCM Legal
Counsel for the Respondent:	Mr Baston
Solicitor for the Respondent:	Hofstee Lawyers

BRC 32 of 2014
BETWEEN:	MR HERRIOT Applicant
AND:	MS HOWES Respondent

ORDER MADE BY:	JUDGE MIDDLETON
DATE OF ORDER:	21 DECEMBER 2020