TAPPER & MCFARLANE (No.2) - [2013] FCCA 798

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAPPER & MCFARLANE (No.2)

[2013] FCCA 798

Catchwords:
FAMILY LAW – Contempt of court – powers of court.

FAMILY LAW – Bond – failure to comply.

Legislation:

Family Law Act 1975, s.117

Mead v Watson [2005] NSWCA 133; (2005) 23 ACLC 718
Weirs & Weirs [2012] FMCAfam 247
Australian Consolidated Press v Morgan (1965) 112 CLR 483

Applicant:

MS TAPPER

Respondent:

MR MCFARLANE

File Number:

MLC 1290 of 2012

Judgment of:

Judge Riethmuller

Hearing date:

2 July 2013

Date of Last Submission:

2 July 2013

Delivered at:

Melbourne

Delivered on:

2 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

THE COURT HAVING FOUND that the Respondent committed a contempt of Court as provided for in section 112AP(1)(b) of the Family Law Act1975 (Cth) in that he contravened order 3 of the orders made by the (then) Federal Magistrates Court constituted by Judge Burchardt on 14 May 2012

ORDERS

That the Respondent enter into a Bond upon the following conditions:
(a)For a period of twenty-four (24) months from and inclusive of 2 July 2013
(i) To be of good behaviour;
(ii)To comply with all extant orders and directions, and any future orders and directions and any court rules applying to the property settlement proceedings and any related proceedings between the parties in the Federal Circuit Court of Australia; and
(iii)Appear before the court on a date to be fixed for determination of the appropriate orders in the event that this bond is breached.
Paragraph 3 of the orders of Judge Burchardt made on 14 May 2012 be discharged.
Until further order, or written consent of the Applicant, the Respondent be hereby restrained from in any way dealing with or disposing of or mortgaging or encumbering the land known as:
(a)Property H in the State of New South Wales; or
(b)Property B, in the State of Victoria;
or his interest in either.
The Respondent pay the Applicant’s costs of this application, including reserved costs, to be paid on a solicitor-client costs basis, or as agreed, and failing agreement to be taxed on the Family Court of Australia scale.

AND THE COURT NOTES:

A.The Respondent entered into the Property B in the Federal Circuit Court of Australia on 2 July 2013 in open court in the presence of Judge Riethmuller and Counsel for the Applicant, and a copy of the signed Property B is annexed to these orders.

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 facts surrounding the contempt in this case are set out in the judgment that I gave yesterday. I need not repeat them.
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 TAPPER & MCFARLANE (No.2)

Details

AGLC: TAPPER & MCFARLANE (No.2) [2013] FCCA 798
Case: [2013] FCCA 798
Decision Date: 2 July 2013

CaseChat Overview and Summary

In the matter of TAPPER & MCFARLANE (No.2), Judge Riethmuller of the Federal Circuit Court of Australia considered an application concerning contempt of court and the failure to comply with a bond. The proceedings involved property settlement and related matters between the parties.

The court was required to determine the appropriate orders to be made in light of the respondent's conduct, specifically in relation to a bond previously entered into and the need to ensure compliance with existing court orders. The court also considered the respondent's actions concerning specific properties.

Judge Riethmuller ordered the respondent to enter into a bond for a period of twenty-four months, requiring him to be of good behaviour and to comply with all extant and future orders and directions in the property settlement and related proceedings. The court also discharged a previous order made by Judge Burchardt and imposed a restraint on the respondent dealing with two specified properties. The respondent was ordered to pay the applicant's costs of the application on a solicitor-client basis. The court noted that the respondent entered into the bond in open court on 2 July 2013.

Orders

Orders of the court

That the Respondent enter into a Bond upon the following conditions:

(a) For a period of twenty-four (24) months from and inclusive of 2 July 2013

(i) To be of good behaviour;

(ii) To comply with all extant orders and directions, and any future orders and directions and any court rules applying to the property settlement proceedings and any related proceedings between the parties in the Federal Circuit Court of Australia; and

(iii) Appear before the court on a date to be fixed for determination of the appropriate orders in the event that this bond is breached.

Paragraph 3 of the orders of Judge Burchardt made on 14 May 2012 be discharged.

Until further order, or written consent of the Applicant, the Respondent be hereby restrained from in any way dealing with or disposing of or mortgaging or encumbering the land known as:

(a) Property H in the State of New South Wales; or

(b) Property B, in the State of Victoria;

or his interest in either.

The Respondent pay the Applicant’s costs of this application, including reserved costs, to be paid on a solicitor-client costs basis, or as agreed, and failing agreement to be taxed on the Family Court of Australia scale.

AND THE COURT NOTES:

A. The Respondent entered into the Property B in the Federal Circuit Court of Australia on 2 July 2013 in open court in the presence of Judge Riethmuller and Counsel for the Applicant, and a copy of the signed Property B is annexed to these orders.

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.