STAPLETON & HAYES - [2016] FamCAFC 171

FAMILY COURT OF AUSTRALIA

STAPLETON & HAYES

[2016] FamCAFC 171

FAMILY LAW – APPEAL – CONTRAVENTION APPLICATIONS – Where the primary judge found that the appellant had contravened final parenting orders – Where the primary judge imposed a bond on the appellant pursuant to s 70NEC of the Family Law Act 1975 (Cth) – Where the appellant sought to appeal those orders – Where there was insufficient evidence for the primary judge to have found some of the contraventions to be established –Where it was open to the primary judge on the evidence to find that one contravention was established – Where the appeal is allowed in relation to four out of the five findings of contraventions – Where the bond was imposed on the basis that several contraventions were established – Where the bond cannot stand – Appeal allowed.

FAMILY LAW – APPEAL – COSTS – Where the appellant sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appellant was not required to prepare appeal books – Where the issuing of a costs certificate is unnecessary – No order as to costs.

Family Law Act 1975 (Cth) ss 65N, 70NAA, 70NAC, 70NAE, 70NCA, 70NDA, 70NEA, 70NEC, 70NFA, 94AAA(3)

Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Ms Stapleton

RESPONDENT:

Mr Hayes

FILE NUMBER:

SYC

2750

2007

APPEAL NUMBER:

155

2015

DATE DELIVERED:

1 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

16 June 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 August 2015

LOWER COURT MNC:

[2015] FCCA 1948

REPRESENTATION

THE APPELLANT:

In Person

THE RESPONDENT:

In Person

Orders

The appeal be allowed and Orders 1, 2, 9, 11 and 16 made by Judge Scarlett on 17 August 2015 be set aside.
The Applications for contravention as referred to in Orders 1, 2, 9 and 11 be dismissed.
The balance of the Contravention Application filed on 13 May 2014, as to what if any sanction is to be imposed or further order made consequent on the contravention found to have been established, be remitted to the Federal Circuit Court of Australia for re‑hearing.
There be no order as to costs.

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 Stapleton & Hayes 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 155 of 2015
File Number: SYC 2750 of 2007

Ms Stapleton

Appellant

And

Mr…

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 STAPLETON & HAYES

Details

AGLC: STAPLETON & HAYES [2016] FamCAFC 171
Case: [2016] FamCAFC 171
Decision Date: 1 September 2016

CaseChat Overview and Summary

The appeal was brought by the appellant, Stapleton, against the primary judge's findings of contravention of final parenting orders and the imposition of a bond. The dispute originated in the Federal Circuit Court and was heard in the Family Court of Australia. The primary judge found that Stapleton had contravened certain parenting orders and imposed a bond under section 70NEC of the Family Law Act 1975 (Cth). Stapleton appealed these findings and orders, seeking to set them aside.

The court had to decide whether there was sufficient evidence for the primary judge to have found some of the contraventions established and whether it was open to the primary judge on the evidence to find that one contravention was established. The court also had to consider whether the bond could stand given that several contraventions were found to be unsubstantiated. The appeal raised significant issues regarding the interpretation of evidence and the appropriate application of legal standards in family law cases involving parenting orders.

The court found that there was insufficient evidence for the primary judge to have found four out of the five contraventions established. However, it was open to the primary judge to find that one contravention was established. Given that the bond was imposed on the basis that several contraventions were established, the court held that the bond could not stand. Consequently, the appeal was allowed in relation to four out of the five findings of contraventions, and the orders were set aside. The matter regarding the appropriate sanction was remitted to the Federal Circuit Court for re-hearing.

The court made several orders. Firstly, the appeal was allowed and specific orders made by the primary judge were set aside. Secondly, the applications for contravention were dismissed. Thirdly, the remaining part of the contravention application was remitted to the Federal Circuit Court for re-hearing to determine what sanction, if any, should be imposed. Lastly, there was no order as to costs.

Orders

Orders of the court

The appeal be allowed and Orders 1, 2, 9, 11 and 16 made by Judge Scarlett on 17 August 2015 be set aside.

The Applications for contravention as referred to in Orders 1, 2, 9 and 11 be dismissed.

The balance of the Contravention Application filed on 13 May 2014, as to what if any sanction is to be imposed or further order made consequent on the contravention found to have been established, be remitted to the Federal Circuit Court of Australia for re‑hearing.

There be no order as to costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.