Uttar & Rajendra (No 2) - [2024] FedCFamC1A 89

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Uttar & Rajendra (No 2) [2024] FedCFamC1A 89

Appeal from: Uttar & Rajendra [2023] FedCFamC2F 1609

Appeal number: NAA 337 of 2023

File number: SYC 6488 of 2014

Judgment of: CHRISTIE J

Date of judgment: 22 May 2024

Catchwords: FAMILY LAW – APPEAL – Appeal from orders for enforcement and variation of final consent orders – Appeal from the dismissal of application seeking the respondent be dealt with for contempt – Appeal from the award of indemnity costs – No error established on the part of the primary judge – Appeal dismissed – Order for the appellant to pay the respondent’s costs in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) s 117B

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)

Cases cited:
Bennett and Bennett (1991) FLC 92-191

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Gregory R Ball Pty Ltd v Stead CA (1993) 9 NSWCCR 148

Uttar & Rajendra [2024] FedCFamC1A 46

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Number of paragraphs: 47

Date of hearing: 20 May 2024

Place: Sydney

The Appellant: Litigant in person

Counsel for the Respondent: Ms Rusiti

Solicitor for the Respondent: Arch Law (Australia) Pty Ltd
ORDERS

NAA 337 of 2023
SYC 6488 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS UTTAR

Appellant

AND:
MR RAJENDRA

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

22 MAY 2024

THE COURT ORDERS THAT:
1.Appeal NAA 337 of 2023 is dismissed.
2.The appellant pay the respondent’s costs in the sum of $14,000 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Uttar & Rajendra has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:

By Notice of Appeal filed 8 December 2023, the appellant challenges all of the orders made on 6 December 2023 by a judge of the Federal Circuit & Family Court of Australia (Division 2). The primary judge had two applications before her: an application by the respondent to this appeal for enforcement and variation of final…

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 Uttar & Rajendra (No 2)

Details

AGLC: Uttar & Rajendra (No 2) [2024] FedCFamC1A 89
Case: [2024] FedCFamC1A 89
Decision Date: 22 May 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia considered an appeal from Ms Uttar against orders for enforcement and variation of final consent orders, the dismissal of an application seeking the respondent be dealt with for contempt, and the award of indemnity costs. The appeal was brought against Mr Rajendra. The appeal related to issues surrounding family law proceedings, including the enforcement of consent orders, the imposition of contempt penalties, and the awarding of costs. The primary issues before the court were whether the primary judge made any errors in enforcing the consent orders, dismissing the contempt application, and awarding indemnity costs.

The court found that no error was established on the part of the primary judge in any of the contested orders. The court emphasised the importance of adherence to the terms of consent orders and the limited circumstances under which contempt proceedings could be initiated. Additionally, the court held that the primary judge did not err in awarding indemnity costs, given the nature of the appeal and the respondent’s position. The court dismissed the appeal and ordered that the appellant pay the respondent’s costs in the sum of $14,000 within 28 days. The form of the order is subject to the entry in the Court’s records and may be subject to review or variation in accordance with the relevant rules.

Orders

Orders of the court

NAA 337 of 2023

SYC 6488 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS UTTAR

Appellant

AND:

MR RAJENDRA

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

22 MAY 2024

THE COURT ORDERS THAT:

1. Appeal NAA 337 of 2023 is dismissed.

2. The appellant pay the respondent’s costs in the sum of $14,000 within 28 days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

NAA 337 of 2023 SYC 6488 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS UTTAR Appellant
AND:	MR RAJENDRA Respondent

Appeal from:	Uttar & Rajendra [2023] FedCFamC2F 1609
Appeal number:	NAA 337 of 2023
File number:	SYC 6488 of 2014
Judgment of:	CHRISTIE J
Date of judgment:	22 May 2024
Catchwords:	FAMILY LAW – APPEAL – Appeal from orders for enforcement and variation of final consent orders – Appeal from the dismissal of application seeking the respondent be dealt with for contempt – Appeal from the award of indemnity costs – No error established on the part of the primary judge – Appeal dismissed – Order for the appellant to pay the respondent’s costs in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 117B Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth)
Cases cited:	Bennett and Bennett (1991) FLC 92-191 Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 Gregory R Ball Pty Ltd v Stead CA (1993) 9 NSWCCR 148 Uttar & Rajendra [2024] FedCFamC1A 46 Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs:	47
Date of hearing:	20 May 2024
Place:	Sydney
The Appellant:	Litigant in person
Counsel for the Respondent:	Ms Rusiti
Solicitor for the Respondent:	Arch Law (Australia) Pty Ltd

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	22 MAY 2024