Keogh and Kenyon - [2015] FCCA 3212

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEOGH & KENYON

[2015] FCCA 3212

Catchwords:
FAMILY LAW – Practice and procedure – matter listed for final hearing for 3 days with priority – father filed a contravention application the day before the final hearing – as a result the hearing could not proceed.

Kettle & Baker [2014] FamCAFC 85
Kovacs & Grahame [2015] FamCAFC 98
Caballes & Tallant (2014) FLC 93-596

Applicant:

MR KEOGH

Respondent:

MS KENYON

File Number:

MLC 4104 of 2011

Judgment of:

Judge Harland

Hearing date:

18 November 2015

Date of Last Submission:

18 November 2015

Delivered at:

Melbourne

Delivered on:

18 November 2015

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Knight

Solicitors for the Applicant:

Knight Family Lawyers

Solicitor Advocate for the Respondent:

Ms Rothschild

Solicitors for the Respondent:

Elisa Rothschild Lawyer

Counsel for the Independent Children's Lawyer:

Ms Jenkinson

Solicitors for the Independent Children's Lawyer:

Macgregor Solicitors

ORDERS

That this matter be listed for final hearing on a date to be fixed, with an estimated hearing time of 3 days.
That the contravention application filed on 17 November 2015 be heard at the same time as the final hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4104 of 2011

MR KEOGH

Applicant

And

MS KENYON

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a matter that was listed for final hearing today, with priority. The father filed a contravention application the day before the final hearing. The father wants that contravention application to proceed. In the circumstances, the hearing cannot proceed this week. It is not a simple issue of technicality and it is not simply an issue of saying the mother is generally on notice of the issues in dispute. Contravention proceedings are quasi-criminal. That is a very serious proceeding and therefore it is important that the respondent to such an application has proper notice of it and be accorded procedural fairness.
In my view, whilst it may well be true that she is aware of the allegations generally, that she has not complied with the orders is a different matter for her lawyer to be in a position to advise her as to the consequences if she is found to have contravened the orders. In those circumstances, I think it would be totally unfair to the respondent to proceed with the contravention application this week.
As a consequence of the father wanting to proceed with the contravention, that means that the hearing must be adjourned. The next issue is whether or not the contravention should be heard separately from the final hearing. In this regard, I refer to a decision of Kettle & Baker [2014] FamCAFC…

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 Keogh and Kenyon

Details

AGLC: Keogh and Kenyon [2015] FCCA 3212
Case: [2015] FCCA 3212
Decision Date: 18 November 2015

CaseChat Overview and Summary

In the matter of *Keogh and Kenyon*, heard before Judge Harland, the dispute concerned an application for contravention filed on 17 November 2015. The specific nature of the contravention and the underlying dispute between the parties are not detailed in the provided text.

The court was required to determine the procedural steps necessary for the resolution of the contravention application. This involved deciding how and when the application would be heard in relation to the final hearing of the substantive matter.

Judge Harland ordered that the matter be listed for a final hearing on a date to be fixed, estimating a hearing duration of three days. Crucially, the court also ordered that the contravention application filed on 17 November 2015 be heard concurrently with the final hearing.

Orders

Orders of the court

That this matter be listed for final hearing on a date to be fixed, with an estimated hearing time of 3 days.

That the contravention application filed on 17 November 2015 be heard at the same time as the final hearing.

Background

Background to the litigation

Full text does not contain this section.

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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