Rogers and Bloom - [2014] FamCA 20

FAMILY COURT OF AUSTRALIA

ROGERS & BLOOM

[2014] FamCA 20

FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – ORDERS – Contravention – ten counts of contravention alleged – reasonable excuse – less or more serious contraventions.

Family Law Act 1975 (Cth) s 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC, 70NFA, 70NFB, 70NFC, 70NFE, 70NFG

Family Law Rules 2004 (Cth) Rule 21.08

Clintock & Levier [2009] FamLR 245
Elsbeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Gravis & Major [2010] FamCAFC 239

APPLICANT:

Mr Rogers

RESPONDENT:

Ms Bloom

FILE NUMBER:

ADC

3452

2009

DATE DELIVERED:

22 January 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

4 & 5 November 2013
11 & 17 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lewis

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Eid appearing on 4 & 5 November 2013 and then Respondent appearing in Person

SOLICITOR FOR THE RESPONDENT:

Orders

That the Contravention Application is adjourned to 13 February 2014 at 2.15pm before the Honourable Justice Berman for the Court to hear submissions from the parties as to penalty and costs.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3452 of 2009

Mr Rogers

Applicant

And

Ms Bloom

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment concerns an Application for Contravention of orders filed on behalf of Mr Rogers (“the father”) on 7 June 2013.
The respondent is Ms Bloom (“the mother”).
The Application for Contravention asserts 13 counts concerning the two children of the relationship namely J born … May 2004 and K born … March 2006.
It is alleged by the father that the mother has failed to comply with orders of this Court and that in respect of each count she did so without reasonable cause or excuse.

The Hearing

The evidence was heard on 4, 5 November 2013, 11 December 2013 and then final submissions were made on 17 December 2013.
At the commencement of the proceedings both the mother and the father were represented by counsel. In particular, the mother had representation for the hearing on 4 and 5 November 2013.
On 11 December 2013 the mother was to give her evidence and be cross examined by counsel for the father. The mother appeared but was unrepresented. The Court file reflects that the mother’s solicitors Hyde White Legal Services filed a Notice of Ceasing to Act on 28 November 2013. There was no appearance by Mr Eid of counsel who had previously appeared for the mother nor by her former solicitor as a courtesy to the Court to seek leave to withdraw.
The lack of any notice and/or explanation as to why the mother was unrepresented created significant difficulty for the Court and 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 Rogers and Bloom

Details

AGLC: Rogers and Bloom [2014] FamCA 20
Case: [2014] FamCA 20
Decision Date: 22 January 2014

CaseChat Overview and Summary

In the matter of Rogers and Bloom, heard before Berman J, the parties brought a Contravention Application before the Court. The precise nature of the contravention and the underlying dispute are not detailed in the provided text, but the application proceeded to a stage where penalty and costs were to be determined.

The central legal issue before the Court was the determination of appropriate penalties and costs arising from the contravention application. The Court was required to consider submissions from both parties on these matters.

Berman J adjourned the Contravention Application to a future date for the express purpose of hearing submissions from the parties regarding penalty and costs. This indicates that the Court had likely already made a determination on the substantive contravention itself, and the current stage of proceedings was focused on the consequences of that contravention. The Court's reasoning, as evidenced by the order, was to allow for a formal hearing of arguments on penalty and costs.

The Court ordered that the Contravention Application be adjourned to 13 February 2014 at 2.15pm, before the Honourable Justice Berman, for the parties to make submissions on penalty and costs.

Orders

Orders of the court

That the Contravention Application is adjourned to 13 February 2014 at 2.15pm before the Honourable Justice Berman for the Court to hear submissions from the parties as to penalty and costs.

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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