NARRA & FARLEY - [2015] FCCA 3335

FEDERAL CIRCUIT COURT OF AUSTRALIA

NARRA & FARLEY

[2015] FCCA 3335

Catchwords:
CHILD SUPPORT – Enforcement of Orders.

FAMILY LAW – Contravention – sanctions for failure to comply with orders – imprisonment – whether contravention was intentional or fraudulent – whether in all the circumstances it would not be appropriate to deal with the contravention pursuant to any other paragraph of Family Law Act 1975 (Cth) s.112AD(2).

FAMILY LAW – Contravention – addiction to methamphetamine held not a reasonable excuse for contravening court orders.

PRACTICE AND PROCEDURE – Delay – discretion to refuse relief – unwarrantable and poorly explained delay.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth)

Evidence Act 1995 (Cth), s.128
Family Law Act 1975 (Cth), ss.112AB, 112AC, 112AE, 112AF, 112AG
Federal Circuit Court Rules 2001, r.22.01

Cases cited:
Binns & Binns [2011] FMCAfam 92
Child Support Registrar & Balzano (No.2) [2011] FMCAfam 578
Child Support Registrar & Cook [2008] FMCAfam 599
Hayes & Stapleton [2015] FCCA 1948

Applicant:

MS NARRA

Respondent:

MR FARLEY

File Number:

SYC 3355 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

8 & 15 December 2015

Date of Last Submission:

15 December 2015

Delivered at:

Sydney

Delivered on:

18 December 2015

REPRESENTATION

Solicitor for the Applicant:

Mr McCulloch

Solicitors for the Applicant:

Legal Aid NSW

Respondent:

In person on 15 December 2015

ORDERS

The Respondent did on 15 October 2013 without reasonable excuse contravene Order 2 made on 13 August 2013 in that he failed to produce the documents required in compliance with a Notice to Produce attached to an Application in a Case filed on 18 June 2013.
The Respondent did on 7 October 2014 without reasonable excuse contravene Order 2 made on 13 August 2013 in that he failed to file and serve a Financial Statement within 28 days or at all.
The Respondent did on 5 November 2014 and subsequent dates to 28 January 2015 without reasonable excuse contravene Order 2 made on 21 October 2014 in that he failed to pay to the Applicant the sum of $8,464.46 at a rate of $500.00 per week commencing on 5 November 2014 or at all.
The Court makes no order in respect of the contravention found in Order (1) above.
In respect of the contraventions found in Orders (2) and (3) above the Respondent is required within seven (7) days of the date of this Order to enter into a bond without surety or security in accordance with section 112AF of the Family Law Act 1975 for a period of twelve (12) months upon the following conditions:
(a)to be of good behaviour;
(b)to pay on a timely basis and in full the sum of $8,464.46 to the Applicant at the rate of $250.00 per week payable to the Applicant by way of internet banking to her (omitted) Bank on-line saver account number (omitted) until the said sum of $8,464.46 until the said sum has been paid in full together with any interest accrued on any amount outstanding at 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 NARRA & FARLEY

Details

AGLC: Narra and Farley [2015] FCCA 3335
Case: [2015] FCCA 3335
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the matter of NARRA & FARLEY, heard by Judge Scarlett, the applicant sought orders for the enforcement of previous court orders, specifically concerning child support payments and the production of financial documents. The respondent was alleged to have contravened these orders on multiple occasions.

The court was required to determine whether the respondent had contravened the orders as alleged, and if so, whether these contraventions were without reasonable excuse. Further, the court had to consider the appropriate sanctions for any proven contraventions, including whether imprisonment was warranted, and whether other paragraphs of section 112AD(2) of the *Family Law Act 1975* (Cth) were more appropriate than dealing with the matter by way of imprisonment. The court also considered the impact of delay in bringing the proceedings and the respondent's alleged methamphetamine addiction.

Judge Scarlett found that the respondent had contravened orders on three occasions: failing to produce documents on 15 October 2013, failing to file a Financial Statement on 7 October 2014, and failing to pay $8,464.46 from 5 November 2014 to 28 January 2015. The court determined that the respondent's addiction to methamphetamine did not constitute a reasonable excuse for these contraventions. While the court found the contraventions, it made no order in respect of the first contravention. For the latter two contraventions, the court ordered the respondent to enter into a 12-month bond without surety, requiring him to be of good behaviour, pay the outstanding sum of $8,464.46 at a rate of $250 per week commencing 1 January 2016, and to notify the Department of Human Services and the applicant of any change in employment. The applicant was granted liberty to apply to restore the matter to the list in the event of default.

Orders

Orders of the court

The Respondent did on 15 October 2013 without reasonable excuse contravene Order 2 made on 13 August 2013 in that he failed to produce the documents required in compliance with a Notice to Produce attached to an Application in a Case filed on 18 June 2013.

The Respondent did on 7 October 2014 without reasonable excuse contravene Order 2 made on 13 August 2013 in that he failed to file and serve a Financial Statement within 28 days or at all.

The Respondent did on 5 November 2014 and subsequent dates to 28 January 2015 without reasonable excuse contravene Order 2 made on 21 October 2014 in that he failed to pay to the Applicant the sum of $8,464.46 at a rate of $500.00 per week commencing on 5 November 2014 or at all.

The Court makes no order in respect of the contravention found in Order (1) above.

In respect of the contraventions found in Orders (2) and (3) above the Respondent is required within seven (7) days of the date of this Order to enter into a bond without surety or security in accordance with section 112AF of the Family Law Act 1975 for a period of twelve (12) months upon the following conditions:

(a) to be of good behaviour;

(b) to pay on a timely basis and in full the sum of $8,464.46 to the Applicant at the rate of $250.00 per week payable to the Applicant by way of internet banking to her (omitted) Bank on-line saver account number (omitted) until the said sum of $8,464.46 until the said sum has been paid in full together with any interest accrued on any amount outstanding at the rate prescribed by Rule 22.01, the first of such payments to be made on Friday 1 January 2016 and weekly thereafter; and

(c) to notify the Department of Human Services: Child Support and the Applicant in writing within seven (7) days of commencing employment with any new employer the name address and telephone number of that employer.

The Applicant is at liberty to apply on seven (7) days’ notice by way of an Application in a Case and an affidavit in support to restore the matter to the List in the event of any default of payment by the Respondent or the Respondent notifying the applicant of any change of employment.

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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