Wilkins and Currie - [2017] FamCA 323

FAMILY COURT OF AUSTRALIA

WILKINS & CURRIE

[2017] FamCA 323

FAMILY LAW – CHILDREN – application for contempt – where the father has made an application that the mother has acted in contempt of court orders – where it is found that the mother has not acted in contempt – where there has been no deliberate defiance of a court order

Family Law Act 1975 (Cth) s 112AP

APPLICANT:

Mr Wilkins

RESPONDENT:

Ms Currie

FILE NUMBER:

MLC

2013

DATE DELIVERED:

7 March 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

7 March 2017

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Hoult

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

Orders

That the Application - Contempt filed 9 January 2017 be struck out;
That the Reasons for Judgment of this day be transcribed.
That the question of costs of this day be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkins & Currie 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 MELBOURNE

FILE NUMBER: MLC 44 of 2013

Mr Wilkins

Applicant

And

Ms Currie

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

The matter of Wilkins & Currie comes before me today upon the Application - Contempt filed on behalf of the father on 9 January 2017. That application is supported by his Affidavit filed the same day. The application provides at Part C details of the alleged contempt. The allegation is as follows:
The respondent without reasonable excuse withheld [B] from the father from 3.30 pm on Friday, 30 December 2016, until 3.30 pm on Wednesday, 4 January 2017.
In order to understand the application it is necessary to provide some background in respect of this matter.
The applicant is Mr Wilkins. He was born in 1968 and is aged 48 years.
The respondent is Ms Currie. She was born on in 1970 and is aged 46 years.
The parties married in 1997, and final separation occurred in 2009.
There are four children of the marriage. Two sets of twins. C and D, who were born in 2002 and will turn 15 later this month, and B and E, who were born in 2004 and will turn 13 next week.
Final parenting orders were made in the Federal Circuit Court on 29 April 2014.
Since that time there have been a series of applications made in the Federal Circuit Court with respect to the implementation of those orders. I was informed by the father at the commencement of this hearing that he has filed approximately 15 contravention applications with respect to the orders. None of those contraventions to date have been proven. Further, I was informed there were no less than seven court appearances in the period 2015- 2016. The proceedings were transferred to this Court in the latter part of 2016.
There has been engagement by this family with various psychologists…

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 Wilkins and Currie

Details

AGLC: Wilkins and Currie [2017] FamCA 323
Case: [2017] FamCA 323
Decision Date: 7 March 2017

CaseChat Overview and Summary

In the matter of *Wilkins and Currie*, Johns J of the Supreme Court of Tasmania was required to determine an application for contempt. The specific nature of the contempt alleged and the precise relationship between the parties, Wilkins and Currie, were not detailed in the provided text.

The central legal issue before the Court was whether the application for contempt, filed on 9 January 2017, should be struck out. This required the Court to consider the sufficiency of the application and the grounds upon which it was brought.

Johns J determined that the application for contempt should be struck out. While the specific reasoning for this decision is not elaborated upon in the provided text, the outcome indicates that the application failed to meet the necessary legal threshold for proceeding. The Court reserved its decision on the question of costs.

Orders

Orders of the court

That the Application - Contempt filed 9 January 2017 be struck out;

That the Reasons for Judgment of this day be transcribed.

That the question of costs of this day be reserved.

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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