Tapper and McFarlane - [2013] FCCA 732

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAPPER & McFARLANE

[2013] FCCA 732

Catchwords:
FAMILY LAW – Contempt of court – applications – interlocutory injunction – alleged breach of order requiring notice before dealing with property – whether breach ‘flagrant’.

Legislation:

Family Law Act 1975, s.112AP

A Bank & Coleiro [2011] FamCAFC 157
Bande & Cade [2011] FamCAFC 93; (2011) 45 Fam LR 376
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313; (2000) 160 FLR 134; [2000] FLC 93-053; 27 Fam LR 81
Hay & Hay [1998] FamCA 95; 146 FLR 47; (1998) FLC ¶92-819; 23 Fam LR 247 (1998) FLC¶92-619
Mead v Mead [2007] HCA 25; (2007) FLC ¶93-327; (2007) 235 ALR 197; (2007) 81 ALJR 1185; (2007) 36 Fam LR 60.
Wither v Holloway (1995) HCA 3

Applicant:

MS TAPPER

Respondent:

MR MCFARLANE

File Number:

MLC 1290 of 2012

Judgment of:

Judge Riethmuller

Hearing date:

1 July 2013

Date of Last Submission:

1 July 2013

Delivered at:

Melbourne

Delivered on:

1 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr Isles

Solicitors for the Applicant:

Stephen Peter Byrne

Counsel for the Respondent:

Ms Southey

Solicitors for the Respondent:

Aitken Partners Pty Ltd

ORDERS

The matter be adjourned to 2 July 2013 at 10:00 a.m. for mention.
The Respondent is hereby found to have been in contempt of orders made by Judge Burchardt on 14 May 2012, and specifically through further encumbering or otherwise dealing with the property at Property H without giving any notice in writing to the solicitors for the Applicant.

IT IS NOTED that publication of this judgment under the pseudonym Tapper & McFarlane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 1290 of 2012

MS TAPPER

Applicant

And

MR MCFARLANE

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

The applicant brings proceedings under s.112AP of the Family Law Act 1975, alleging that the respondent is in contempt of an order of Judge Burchardt, made on 14 May 2012.
Section 112AP(1) provides as follows:
Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
The Order of his Honour relevantly provided in order 3:
3. The Respondent be restrained by injunction from further encumbering or otherwise dealing with the property at Property H without giving seven days’ notice in writing to the solicitors for the Applicant.
There is no issue taken in these proceedings that this is an Order under the Act within the meaning of s.112AP.
The Full Court of the Family Court has considered the terms of s.112AP on a number of occasions. In A Bank & Coleiro [2011] FamCAFC 157, the Chief Justice said:
[13] In dealing with contempt under s112AP which…

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 Tapper and McFarlane

Details

AGLC: TAPPER & McFARLANE [2013] FCCA 732
Case: [2013] FCCA 732
Decision Date: 1 July 2013

CaseChat Overview and Summary

In the matter of *Tapper and McFarlane*, heard before Judge Riethmuller, the dispute concerned alleged contempt of court by the Respondent. The Applicant sought a finding of contempt against the Respondent for actions taken in relation to a property.

The central legal issue before the court was whether the Respondent had breached previous orders made by Judge Burchardt on 14 May 2012. Specifically, the court was required to determine if the Respondent had encumbered or otherwise dealt with the property known as Property H without providing written notice to the Applicant's solicitors, thereby constituting contempt of those orders.

Judge Riethmuller found that the Respondent had indeed been in contempt of the orders made by Judge Burchardt. This finding was based on the Respondent's actions in further encumbering or dealing with Property H without the requisite written notice to the Applicant's solicitors.

The court ordered that the matter be adjourned to 2 July 2013 at 10:00 a.m. for mention.

Orders

Orders of the court

The matter be adjourned to 2 July 2013 at 10:00 a.m. for mention.

The Respondent is hereby found to have been in contempt of orders made by Judge Burchardt on 14 May 2012, and specifically through further encumbering or otherwise dealing with the property at Property H without giving any notice in writing to the solicitors for the Applicant.

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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