LAFFY & GEORGE - [2012] FMCAfam 775

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAFFY & GEORGE

[2012] FMCAfam 775

FAMILY LAW – Contravention application – contraventions admitted – orders – sentence of imprisonment.

FAMILY LAW – Contravention application – application previously dismissed by consent – res judicata.

Family Law Act 1975, ss.112AD, 112AD(2), 112(AD(2)(b), 112AD(2A), 112AE, 112AG

Chamberlain v Deputy Federal Commissioner of Taxation (1988) 164 CLR 502
Clout & Ors v Klein & Ors [2001] QSC 401
Effem Foods Pty Ltd & Trawl Industries of Australia Pty Ltd, (1993) 43 FCR 510
Lin & Rail Corporation of New South Wales (2011) FCA 261
M67 v The Hon. Phillip Ruddock & Minister for Immigration (2004) FMCA 79
Port of Melbourne Authority & Anshun (1981) 147 CLR 589
Reid & Lynch [2010] FamCAFC 184

Applicant:

MS LAFFY

Respondent:

MR GEORGE

File Number:

BRC 830 of 2011

Judgment of:

Jarrett FM

Hearing date:

11 July 2012

Date of Last Submission:

11 July 2012

Delivered at:

Brisbane

Delivered on:

11 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr Hackett

Solicitors for the Applicant:

Hirst & Co

The Respondent appeared on his own behalf

ORDERS

Upon the Court finding that the respondent husband has, without reasonable excuse, contravened:

(A)the orders made under the Family Law Act1975 by Federal Magistrate Cassidy in the Federal Magistrates Court of Australia at Brisbane on 23 May 2011, in that:
(a)in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property A as and when it fell due on 30 November 2011;
(b)in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property B as and when it fell due on 30 November 2011;
(c)in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property B as and when it fell due on 30 December 2011;
(d)in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property B, as and when it fell due on 31 January 2012;
(e)in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property B as and when it fell due on 29 February 2012;
(f)in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the rates levy in the amount of $265.50 from the (omitted) Council dated 24 November 2011 in relation to the property at Property B as and…

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 LAFFY & GEORGE

Details

AGLC: LAFFY & GEORGE [2012] FMCAfam 775
Case: [2012] FMCAfam 775
Decision Date: 11 July 2012

CaseChat Overview and Summary

The matter before the court involved a contravention application brought by the wife, Laffy, against the husband, George. The wife alleged that the husband had failed to comply with several court-ordered obligations relating to mortgage repayments and the surrender of a motor vehicle. The husband admitted to the contraventions. The case was heard in the Federal Circuit Court of Australia.

The legal issues the court had to address included whether the husband's failure to comply with the orders was without reasonable excuse, and if so, what sentence should be imposed. Additionally, the court had to consider whether the husband's previous contravention application, which had been dismissed by consent, could be cited as a precedent that would prevent the imposition of a sentence.

The court found that the husband had failed to comply with the orders without reasonable excuse. The court noted that the husband had previously been given a chance to comply with the orders, but had failed to do so. The court held that the dismissal of the previous contravention application by consent did not prevent the imposition of a sentence in this case. The court imposed a sentence of imprisonment for three months, to be served immediately. The court also ordered the husband to pay the wife's costs on an indemnity basis.

In summary, the court found that the husband had contravened several court orders without reasonable excuse and imposed a sentence of imprisonment and ordered the husband to pay the wife's costs.

Orders

Orders of the court

Upon the Court finding that the respondent husband has, without reasonable excuse, contravened:

(A) the orders made under the Family Law Act 1975 by Federal Magistrate Cassidy in the Federal Magistrates Court of Australia at Brisbane on 23 May 2011, in that:

(a) in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property A as and when it fell due on 30 November 2011;

(b) in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property B as and when it fell due on 30 November 2011;

(c) in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property B as and when it fell due on 30 December 2011;

(d) in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property B, as and when it fell due on 31 January 2012;

(e) in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the mortgage repayment on the mortgage registered in favour of the National Australia Bank over the property at Property B as and when it fell due on 29 February 2012;

(f) in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the rates levy in the amount of $265.50 from the (omitted) Council dated 24 November 2011 in relation to the property at Property B as and when it fell due on 28 December 2011; and

(g) in contravention of paragraph 8 of those orders the respondent, without reasonable excuse, failed to pay the rates levy in the amount of $525.25 from the (omitted) Council dated 5 January 2012 in relation to the property at Property B, as and when it fell due on 6 February 2012; and

(B) the orders made under the Family Law Act 1975 by Federal Magistrate Cassidy in the Federal Magistrates Court of Australia at Brisbane on 7 March 2012, in that:

(a) in contravention of paragraphs 3 and 4 of the orders dated 7 March 2012 the respondent, without reasonable excused, failed to do all things necessary to deliver possession of the BMW (model omitted) motor vehicle and all instruments of title, log books, service histories, keys and accessories pertaining to that vehicle to the wife outside the Property B property by 4.00 pm on 8 March 2012.

THE COURT ORDERS THAT:

The respondent husband MR GEORGE born (omitted) 1962 be sentenced to a period of imprisonment for a period of three (3) months, to be served immediately.

The respondent husband pay to the applicant wife costs to be taxed and paid in accordance with the Family Law Rules 2004 on an indemnity basis.

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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