VENTURE & VENTURE (No.4) - [2016] FCCA 870

FEDERAL CIRCUIT COURT OF AUSTRALIA

VENTURE & VENTURE (No.4)

[2016] FCCA 870

Catchwords:
FAMILY LAW – Children – contravention – contravention of parenting orders – consequential orders – less serious contravention – where no previous contravention of primary order – whether respondent behaved in a way that showed a serious disregard for her obligations under the primary order – where Subdivision E of Division 13A of Family Law Act 1975 (Cth) applied – imposition of bond.

COSTS – Whether an order for costs should be made against the Respondent – where neither party in receipt of legal aid – financial circumstances of the parties considered – conduct of the proceedings by the parties considered – where proceedings necessitated by failure of the Respondent to comply with previous orders.

PRACTICE AND PROCEDURE – Slip Rule – where quantum of costs incorrectly calculated on the day the decision was handed – Slip Rule applied to provide for correct figure.

PRACTICE AND PROCEDURE – Transfer to Family Court – where substantive proceedings between the parties for property and parenting orders estimated to require five hearing days – Protocol between Family Court of Australia and Federal Circuit Court of Australia considered.

Legislation cited:

Family Law Act 1975 (Cth), ss.70NEA, 70NEB, 70NEC, 70NFA, 70NFB

Federal Circuit Court of Australia Act 1999 (Cth), s.39
Federal Circuit Court Rules 2001, r.8.02

Cases cited:
Venture & Venture (No.3) [2015] FCCA 3344

Applicant:

MR VENTURE

Respondent:

MS VENTURE

File Number:

SYC 433 of 2013

Judgment of:

Judge Scarlett

Hearing date:

5 April 2016

Date of Last Submission:

5 April 2016

Delivered at:

Sydney

Delivered on:

5 April 2016

REPRESENTATION

Counsel for the Applicant:

Mr Richards

Solicitors for the Applicant:

Doolan Callaghan Family Lawyers

Counsel for the Respondent:

Ms Spain

Solicitors for the Respondent:

Byrnes Lawyers

ORDERS

The Respondent did on 7 June 2015 contravene Order 15.4 made on 19 December 2014 in that she did make a disparaging or derogatory remark about the Applicant in the presence or hearing of the child X.
The Respondent did on 12 June 2015 contravene Order 15.1 made on 19 December 2014 in that she discussed the proceedings with the child X and passed a message to the Applicant through the child X.
In respect of the contraventions found in Orders (1) and (2) above the Respondent is required to enter into a bond in accordance with section 70NEC of the Family Law Act 1975 for a period of twelve (12) months upon the following conditions:
(a)to be of good behaviour; and
(b)to comply with the requirements of the Orders made on 19 December 2014.
The Respondent is to pay some of the costs of the Applicant fixed in the amount of $12,701.00, such amount to be paid out of the Respondent’s entitlement to a sum arising from the final orders made in respect of the proceedings between the parties for settlement of property.
In accordance with Section 39 of the Federal Circuit Court of Australia Act 1999 the substantive proceedings for property…

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 VENTURE & VENTURE (No.4)

Details

AGLC: VENTURE & VENTURE (No.4) [2016] FCCA 870
Case: [2016] FCCA 870
Decision Date: 5 April 2016

CaseChat Overview and Summary

In *Venture & Venture (No.4)*, Judge Scarlett of the Federal Circuit Court of Australia considered allegations of contravention of parenting orders made on 19 December 2014. The applicant alleged that the respondent had contravened orders requiring her to refrain from making disparaging remarks about the applicant in the presence of the child, X, and to avoid discussing proceedings with the child or passing messages through the child to the applicant. The court also dealt with an application for costs and the transfer of substantive property and parenting proceedings.

The primary legal issues before the court were whether the respondent had contravened specific parenting orders, and if so, whether such contraventions constituted a "less serious contravention" under Subdivision E of Division 13A of the *Family Law Act 1975* (Cth). The court was also required to determine whether to impose a bond, make an order for costs against the respondent, and whether to transfer the substantive proceedings to the Family Court of Australia.

Judge Scarlett found that the respondent had contravened the parenting orders on two occasions: first, by making a disparaging remark about the applicant in the presence of the child X on 7 June 2015, and second, by discussing the proceedings with the child X and passing a message to the applicant through the child on 12 June 2015. The court determined that these contraventions were less serious, noting the absence of previous contraventions of the primary order and that the respondent had not behaved in a way that showed a serious disregard for her obligations. Consequently, the court ordered the respondent to enter into a bond for twelve months, conditional upon her being of good behaviour and complying with the existing parenting orders.

The court also ordered the respondent to pay the applicant's costs fixed at $12,701.00, to be paid from the respondent's entitlement from the property settlement. Finally, considering the estimated duration of the substantive proceedings and the relevant protocol, the court ordered the transfer of the property and parenting proceedings to the Family Court of Australia at Sydney for listing before a Registrar.

Orders

Orders of the court

The Respondent did on 7 June 2015 contravene Order 15.4 made on 19 December 2014 in that she did make a disparaging or derogatory remark about the Applicant in the presence or hearing of the child X.

The Respondent did on 12 June 2015 contravene Order 15.1 made on 19 December 2014 in that she discussed the proceedings with the child X and passed a message to the Applicant through the child X.

In respect of the contraventions found in Orders (1) and (2) above the Respondent is required to enter into a bond in accordance with section 70NEC of the Family Law Act 1975 for a period of twelve (12) months upon the following conditions:

(a) to be of good behaviour; and

(b) to comply with the requirements of the Orders made on 19 December 2014.

The Respondent is to pay some of the costs of the Applicant fixed in the amount of $12,701.00, such amount to be paid out of the Respondent’s entitlement to a sum arising from the final orders made in respect of the proceedings between the parties for settlement of property.

In accordance with Section 39 of the Federal Circuit Court of Australia Act 1999 the substantive proceedings for property and parenting orders are transferred to the Family Court of Australia at Sydney to be listed before a Registrar.

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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