REID & SECCO - [2017] FamCA 1140

FAMILY COURT OF AUSTRALIA

REID & SECCO

[2017] FamCA 1140

FAMILY LAW – CHILDREN – Obligation to return child to Australia

FAMILY LAW – CONTEMPT – Disobedience of orders – Significance of a subsequent application to the Court – Significance of legal advice

Evidence Act 1995 (Cth) s 141
Family Law Act 1975 (Cth) s 112AP
Family Law Rules 2004 r 21.08

Ibbotson and Wincen (1994) FLC 92-496

In the Marriage of Tate (2002) 29 FamLR 195
Medlow & Medlow (2017) FLC 93-796
R v Pfitzner (1976) 15 SASR 171

APPLICANT:

Mr Reid

RESPONDENT:

Ms Secco

FILE NUMBER:

CAC

1283

2008

DATE DELIVERED:

10 November 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

2 November 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Evans Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Self-representing

Orders

The respondent is held to be in contempt of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reid & Secco has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1283 of 2008

Mr Reid

Applicant

And

Ms Secco

Respondent

REASONS FOR JUDGMENT

Background

The applicant in this matter is Mr Reid, born in 1968; the respondent is Ms Secco, born in 1964. The parties have one child, X (the child), who is twelve.
The current proceedings arise from the applicant’s application for contempt, filed 20 March 2017.
At the hearing of the matter the respondent denied the contempt.
The contempt is said to relate to an alleged breach of orders made by Judge Henderson on 13 December 2013 that provided for a suspension of orders made by Federal Magistrate Hartnett on 16 December 2009, and allowed the respondent to remove the child from Australia to City A for the duration of her employment posting there. The posting was envisaged to be for a period of three years, and so the 16 December 2009 orders were suspended for that time.
The application for contempt filed 20 March 2017 stated the alleged contempt as follows:
…the mother did not return [the child] to Australia from [City A, Country B] on 28 January 2017 or in the alternative on 28 February 2017 in deliberate breach and in flagrant disregard of Orders 1 and 4 of Orders dated 13 December 2013 of the Federal Circuit Court Canberra.
What led to this formulation was a degree of ambiguity within the orders made by the Federal Circuit Court. They firstly suspended the previous orders for the applicant to…

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 REID & SECCO

Details

AGLC: REID & SECCO [2017] FamCA 1140
Case: [2017] FamCA 1140
Decision Date: 10 November 2017

CaseChat Overview and Summary

In *Reid & Secco*, heard before Gill J, the dispute concerned the obligation to return a child to Australia. The proceedings involved allegations of contempt of court against one of the parties.

The central legal issues before the Court were whether the respondent was in contempt of court for failing to return the child to Australia as previously ordered, and the significance of a subsequent application to the Court and legal advice received by the respondent in relation to this alleged contempt.

Gill J found the respondent to be in contempt of court. The Court's reasoning, though not detailed in the provided text, would have involved an assessment of whether the respondent's actions constituted a wilful disregard of the Court's orders, notwithstanding any subsequent applications or advice received. The principle applied would have been that disobedience of a clear court order, without lawful excuse, amounts to contempt.

The Court ordered that the respondent be held in contempt of court.

Orders

Orders of the court

The respondent is held to be in contempt of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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