Yates and Turner (No 3) - [2009] FamCA 887

FAMILY COURT OF AUSTRALIA

YATES & TURNER (NO. 3)

[2009] FamCA 887

FAMILY LAW – ORDER – CONTRAVENTION – PENALTY – where the Court found the mother to have contravened an order without reasonable excuse – where serious disregard for the obligations under the order was not established – consideration of the Court’s powers to make orders with respect to the contravention under s 70NEB – whether an order should be made as to costs – no formal order by way of sanction – no order for costs for either party

Family Law Act 1975 (Cth) ss 70NCB, 70NEA, 70NEB, 70NFB, 117, 117AA, 117AB, 117AC & 118

Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341

APPLICANT:

Mr Yates

RESPONDENT:

MS Turner

FILE NUMBER:

ADF

1176

2005

DATE DELIVERED:

2 September 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

2 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

n/a

COUNSEL FOR THE RESPONDENT:

Ms Croydon

SOLICITOR FOR THE RESPONDENT:

Croydons

Orders

No formal order by way of sanction.
No order for costs for either party in relation to the contraventions.

IT IS NOTED that publication of this judgment under the pseudonym Yates & Turner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1176 of 2005

MR YATES

Applicant

And

MS TURNER

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

This is a matter which now needs to have consideration given to the complicated provisions of Division 13A which is headed “Consequences of failure to comply with orders and other obligations that affect children”. The order for the delivery-up of the child’s goods can be described as a parenting order and would therefore be an order that affects the child. It therefore comes within the Division 13A.
The provisions set out in Division 13A are divided into certain subdivisions.
The first deals with the question of how one determines contraventions and provides for those matters which I have already dealt with in my judgment.
Subdivision E deals with “Contravention without reasonable excuse (less serious contravention)”.
The contravention which I found the mother committed without reasonable excuse is the contravention which relates to the delivery up of the child’s goods. That falls within the provisions of section 70NEA and therefore the Court has to consider the sanctions which are available under that subdivision. In this case I am convinced that it is not a matter where the Court should consider there has been serious disregard for the obligations.
In my judgment I have set out the mother’s evidence. Whilst I found that she had contravened the order without reasonable excuse the factors contained do not establish the serious disregard.
The powers of the Court are therefore set out in section 70NEB. The first option is that the person who committed the current contravention attend a post separation parenting program.
I have taken into account in relation…

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 Yates and Turner (No 3)

Details

AGLC: Yates and Turner (No 3) [2009] FamCA 887
Case: [2009] FamCA 887
Decision Date: 2 September 2009

CaseChat Overview and Summary

In *Yates and Turner (No 3)*, Dawe J of the Federal Court of Australia considered the appropriate orders to be made following findings of contraventions of the *Australian Consumer Law*. The proceedings concerned alleged misleading and deceptive conduct and false or misleading representations in relation to the sale of a business.

The primary legal issue before the Court was the nature and extent of the orders to be made in light of the established contraventions. Specifically, the Court had to determine whether to impose any formal sanctions or make orders for costs against the parties in relation to these contraventions.

Dawe J declined to make any formal orders by way of sanction against the parties. Furthermore, the Court made no order for costs in favour of either party concerning the contraventions that had been established.

Orders

Orders of the court

No formal order by way of sanction.

No order for costs for either party in relation to the contraventions.

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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