West and White - [2015] FamCA 1088

FAMILY COURT OF AUSTRALIA

WEST & WHITE

[2015] FamCA 1088

FAMILY LAW – CONTEMPT – Contravention of Court order – Where the husband’s application alleges two counts of contravention of orders for sale of a property – Where the wife denied both alleged breaches –Where the Court found that the wife did not contravene the orders – Application dismissed.

Family Law Act 1975 (Cth) – s 117

Brisbane Water County Council v Commissioner of Stamp Duties [1979] 1 NSWLR 320

APPLICANT:

Mr West

RESPONDENT:

Ms White

FILE NUMBER:

NCC

2007

DATE DELIVERED:

16 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

3 September 2014 and 29 January 2015

REPRESENTATION

FOR THE APPLICANT:

Mr West in person

SOLICITOR FOR THE RESPONDENT:

Mr Fox of Attwaters

Orders

That the husband’s contravention application filed on 4 June 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym West & White has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 3 of 2007

Mr West

Applicant

And

Ms White

Respondent

REASONS FOR JUDGMENT

These are enforcement proceedings. The parties are Mr West and Ms White. For convenience I shall refer to them as “the husband” and “the wife”.
On 4 June 2014 the husband filed a contravention application alleging that the wife breached property orders under the Family Law Act1975 (Cth) (“the Act”) made on 16 December 2008. A necessary precursor to the Court hearing these proceedings was the necessity for the husband to obtain the Court’s leave to file any application. This is because in 2005 an order had been made by Mullane J pursuant to s 118(2)(c) of the Act against the husband to the effect that any future application by him could not be filed without specific leave of the Court. I have previously given reasons for judgment supporting an order which I made on 3 September 2014 providing the Court’s leave to the husband to file his contravention application. It is unnecessary to repeat the matters contained in those reasons.
The husband was self-represented and I explained to him the procedure I proposed to adopt, namely that it would be necessary for him to establish a prima facie case for one or more of the alleged breaches and that if he was to do so, then the wife would be given an opportunity to put a case for reasonable excuse before the Court. Noting the husband’s long involvement in litigation against the wife, I asked him whether he understood the process of examination, cross examination and re-examination and he assured me that he did.
There were numerous objections to the husband’s affidavits, these being affidavits which he prepared himself. In respect of each of the rulings where I declined to admit his material, I explained to the husband the difficulties with the material and the reasons…

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 West and White

Details

AGLC: West and White [2015] FamCA 1088
Case: [2015] FamCA 1088
Decision Date: 16 November 2015

CaseChat Overview and Summary

In *West and White*, heard before Johnston J, the husband sought to have the wife found in contravention of certain parenting orders. The specific nature of the alleged contraventions and the precise terms of the parenting orders are not detailed in the provided text.

The central legal issue before the court was whether the wife had contravened the existing parenting orders as alleged by the husband. Johnston J was required to determine if the wife's actions met the threshold for a contravention under the relevant family law legislation.

Johnston J dismissed the husband's contravention application. While the reasons for this dismissal are not elaborated upon in the provided text, the outcome indicates that the court was not satisfied that the wife had breached the parenting orders. The court's decision implies an application of the legal standards for proving contravention, which were not met on the facts presented to the court.

Orders

Orders of the court

That the husband’s contravention application filed on 4 June 2014 be dismissed.

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.