McGillivray & Ors v Mitchell P37/2000 [2000] HCATrans 653 (27 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P37 of 2000

B e t w e e n -

BRIAN JOHN McGILLIVRAY, JAN LORENE McGILLIVRAY, KRISTEN JAMES McGILLIVRAY AND FAUNA HOLDINGS PTY LTD

Applicants

and

PAMELA KAY MITCHELL

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 10.53 AM

Copyright in the High Court of Australia

MR A.F. DICKEY, QC: I appear for the applicant. MR J.J. HOCKLEY appears with me. (instructed by O'Sullivan Davies)

MR R.S. HOOPER: If it please the Court, I appear for the respondent. (instructed by Anderson Josland)

McHUGH J: There is to be no oral argument in this case, we understand, from both parties.

MR McGILLIVRAY: No, that is so, your Honours.

McHUGH J: That is so, yes.

The parties have indicated to the Court that they are content to have the Court consider this application on the basis of their written submissions. The Court has considered those submissions. In the opinion of the Court the application for special leave to appeal must be refused.

The applicants were convicted and sentenced by the Family Court of Australia for contempt on the ground of contravention of an order of that court. The orders of conviction were made pursuant to the Family Law Act 1975 section 112AP(1)(b). The applicants principally wish to contest their convictions on the basis that it was not shown that they had intentionally failed to comply with the order of the Family Court within the terms of section 112AB(1) of the Act. That subsection applied to the offence with which they were charged. No other argument mounted by them is of such significance as to qualify for special leave to apply.

The present applications would not provide a suitable vehicle for elucidating the interpretation of sections 112AB(1) and 112AP(1) of the Act. The applicants gave no evidence as to what their actual states of mind were. In the absence of such evidence, it would be unprofitable in this case to seek to elucidate the differences of the quality of intention which the applicants seek to argue.

Having regard to the findings made in the Family Court, including findings in the alternative, the Court is not convinced that a miscarriage of justice has occurred. Accordingly, special leave to appeal is refused with costs.

The Court will now adjourn to reconstitute.

AT 10.56 AM THE MATTER WAS CONCLUDED