Keightley and Keightley (No 4) - [2010] FamCA 1160

FAMILY COURT OF AUSTRALIA

KEIGHTLEY & KEIGHTLEY (NO. 4)

[2010] FamCA 1160

FAMILY LAW – ORDERS – contravention – where the parties have filed applications alleging contravention of previous orders by the other – where the alleged contraventions have been brought pursuant to Part VII Division 13A – consideration of whether contraventions have been pursued through the appropriate legislative avenue – where it was held that the contraventions could be dealt with either under Part VIIA Division 13A or Part XIIIA – whether there exists a reasonable excuse – where it was held that the father did not have a reasonable excuse – where the matter was adjourned in relation to the sanctions to be imposed

Family Law Act 1975 (Cth) ss 64B, 68A, 68B, 70NAC, 70NAE, 112AA, 112AB, 112AC & 114

Family Law Rules 2004 r 1.04, 1.12, 2.01, 11.10, 11.12 & 21.01

Cales & Cales [2010] FamCAFC 237
Elspeth & Peter; Mark & Peter and John & Peter (Penalty & Costs) (2008) 37 FamLR 696

APPLICANT:

Ms Keightley

RESPONDENT:

Mr Keightley

FILE NUMBER:

ADC

4573

2008

DATE DELIVERED:

20 December 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

6 and 7 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

The Contravention Application filed by the father alleging contravention by the mother of paragraph 25 of the order of 7 December 2009 is dismissed.
Upon noting that the Court finds that the father contravened paragraphs 26 and 29 of the order of 7 December 2009 without reasonable excuse the applications are adjourned for submissions on the sanctions to be imposed.
The matter is therefore adjourned to 1 March 2011 at 9.15 am before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4573 of 2008

MS KEIGHTLEY

Applicant

And

MR KEIGHTLEY

Respondent

REASONS FOR JUDGMENT

Introduction

By Contravention Application filed on 5 March 2010 the mother Ms Keightley (“the mother”) made numerous allegations that the father Mr Keightley (“the father”) had contravened an order under Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Judgment was reserved in relation to the two contraventions referred to in paragraph 15 and paragraph 17 of the Application for Contravention filed on 5 March 2010, namely that the father had contravened paragraph 26 of the order of 7 December 2009 having without reasonable excuse failed to pay the mother the amount of $3,500 and that the father had contravened paragraph 29 of the order of 7 December 2009 having without reasonable excuse failed to pay the mother the amount of $2,500. (See document 79 on the Court file).
The other alleged contraventions were dealt with at the hearing by way of ex-tempore judgment,…

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: [2010] FamCA 1160
Decision Date: 20 December 2010

CaseChat Overview and Summary

In the matter of *Keightley and Keightley (No 4)*, Justice Dawe of the Federal Circuit Court of Australia considered an application by the father alleging contravention of court orders by the mother, and cross-applications by the mother alleging contravention by the father. The dispute concerned the parties' compliance with orders made on 7 December 2009, which likely related to parenting arrangements.

The primary legal issues before the Court were whether the mother had contravened paragraph 25 of the 7 December 2009 order, and whether the father had contravened paragraphs 26 and 29 of the same order. The Court was required to determine if any contraventions had occurred and, in the case of the father, whether any such contraventions were without reasonable excuse.

Justice Dawe dismissed the father's application, finding that the mother had not contravened paragraph 25 of the order. However, the Court found that the father had contravened paragraphs 26 and 29 of the order without reasonable excuse. Consequently, the Court adjourned the applications for submissions on the sanctions to be imposed for the father's contraventions and listed the matter for further hearing.

Orders

Orders of the court

The Contravention Application filed by the father alleging contravention by the mother of paragraph 25 of the order of 7 December 2009 is dismissed.

Upon noting that the Court finds that the father contravened paragraphs 26 and 29 of the order of 7 December 2009 without reasonable excuse the applications are adjourned for submissions on the sanctions to be imposed.

The matter is therefore adjourned to 1 March 2011 at 9.15 am before the Honourable Justice Dawe.

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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