Bain and Bain

[2016] FamCA 42

FAMILY COURT OF AUSTRALIA

BAIN & BAIN [2016] FamCA 42

FAMILY LAW – CONTEMPT – Where the legal personal representatives of the deceased wife seek to prosecute contempt proceedings against the husband for asserted breach of Undertaking  asserted to have been provided by the husband - Where preliminary application for an order pursuant to the slip rule is made – Application refused - Where preliminary application for summary disposal of the Application for Contempt is made on the basis that the Applicants do not have standing to bring and prosecute an Application for Contempt – Application declined

Family Law Act 1975 (Cth)

European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
Hall & Hayne (unreported, Family Court of Australia, Cohen J, 13 March 1995)
In the Marriage of McJarrow (1980) 50 FLR 429
R v Dunbabin; ex parte Williams (1935) 53 CLR 434
Russell & Russell (1999) FLC 92-839
Wade and Faull v Gilroy (1986) FLC 91-722

APPLICANTS: Ms Little and Ms Searle as Legal Personal Representatives for Ms Bain

RESPONDENT: Mr Bain

FILE NUMBER: BRC 2481 of 2010

DATE DELIVERED: 4 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 6 October 2015;   and
by further  written submissions filed by the Applicants on 13 October 2015 and written submissions in response filed by the Respondent on 19 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston

SOLICITOR FOR THE APPLICANT: Blair Anderson

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: HopgoodGanim

Orders

IT IS ORDERED

1. That the Respondent’s Application in a Case filed by leave 6 October 2015 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bain & Bain 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 BRISBANE

FILE NUMBER: BRC 2481 of 2010

Ms Little and Ms Searle as Legal Personal Representatives for Ms Bain

Applicants

And

Mr Bain

Respondent

REASONS FOR JUDGMENT

1. Ms Bain and the Respondent, who is a solicitor, were parties to proceedings, commenced on 3 August 2011, for property adjustment orders pursuant to s 79 of the Family Law Act1975 (Cth).

2. During the course of the proceedings, each party prosecuted various interim applications at various times. Included within this category was an Application filed by Ms Bain - by which she sought an order that the Respondent transfer ownership of a life insurance policy (which insured her life) to her. 

3. On 12 December 2013, I dismissed that Application. The Order made that day is as follows:

   UPON THE UNDERTAKING of the husband to hold any payment received by him under the life insurance component of MLC Life Policy … in his solicitor’s trust account pending further order of the Court

   IT IS ORDERED

   (1)That the wife’s Interim application for the transfer of MLC life policy … and MLC life policy … is dismissed.

   (2)In the event that the Respondent seeks an order that the Applicant pay his costs of and incidental to her interim application for the transfer of MLC life policy … and MLC life policy …:

   (a)the Respondent file and serve brief written submissions in support of such application for costs within 14 days of the date hereof;

   (b)the Applicant file and serve any brief written submissions in answer to any submission filed and served by the Respondent within a further 14 days thereafter;

   (c)the Respondent file and serve any brief further written submissions strictly in reply to the submission served by the Applicant within seven (7) days of its service,

   and such application for costs shall be determined in Chambers.

4. Ms Bain died in August 2014.

5. On 11 March 2015, the Applicants, in their capacity as legal personal representatives for Ms Bain, were substituted as parties for her.[1]

   [1] Rule 6.15(3) Family Law Rules (2004).

6. On 30 July 2015, the Applicants filed an Application seeking that the Respondent be dealt with for an alleged contempt of Court asserted to arise out of his actions in allegedly failing to comply with the Undertaking recorded on the face of the December 2013 Order.

7. The contempt application alleges that, in flagrant disregard for the term of the Undertaking to hold any proceeds he received from the life insurance policy in his solicitors’ trust account pending further order of the Court, the Respondent failed to pay the sum of $457,786.00, or any other amount representing those monies received by him pursuant to the life insurance component of the relevant life policy, to his solicitors’ trust account.

8. The nature of the asserted joint liabilities and the manner in which they are to be discharged is one of the issues in dispute in the property settlement proceedings.

The contempt proceedings

1. After Mr Baston of Counsel for the Applicants outlined the material relied upon in prosecuting the Application for Contempt,[2] Mr Richardson SC, who appeared on behalf of the Respondent, raised two preliminary issues:

   a)an Application made on behalf of the Respondent for an Order, pursuant to Rule 17.02 of the Family Law Rules 2004, that the December 2013 Order be amended by deleting the “preamble” which commenced with the phrase “Upon the Undertaking of the husband”[3];

   b)he sought that the Application for Contempt be dismissed on the basis that the Applicants do not have standing to bring and prosecute the same.

   [2]namely: Application – Contempt filed 30 July 2015; affidavit of Mr Anderson filed 28 July 2015; the Order made and Reasons for Judgment delivered on 12 December 2013; the affidavit/s of Ms Searle and Ms Little filed 4 March 2015 in support of their application for orders that joined them to the proceedings and Orders made by Registrar Brooks on 19 November 2014, 17 December 2014, 4 March 2015, 11 March 2015 and 13 May 2015.

   [3]See the Application in a Case which Mr Richardson SC was granted leave to file and read that day.

Application for Order pursuant to Rule 17.02 of the Rules – “Errors in Orders”

1. There has been no appeal in respect of the December 2013 Order.

2. There is no evidence that the Respondent has complied with Rule 17.02(1) insofar as it requires notice to be given to the Registry Manager. Any notice provided by the Respondent to the Applicants of an intention to seek an order pursuant to this Rule occurred in association with the submission of the Application in a Case filed by leave at the commencement of the hearing.

3. Until this Application was filed by leave, the Respondent had taken no formal step to seek the amendment or rectification of the December 2013 Order.

4. Rule 17.02(5) provides that a judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to that judicial officer. The note to the Rule states that “An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.”

5. The Applicants oppose any amendment to the December 2013 Order.

6. Mr Richardson SC submitted that:

   a)the Respondent did not ever undertake to the Court in the terms recorded in what he described as ‘the preamble’ to the December 2013 Order  (or at all) and, as such, it should be amended in the way he submitted; and

   b)when regard is had to the contents of the Outline of Submissions prepared by Mr Dick of Counsel, who appeared for the Respondent in November 2013, it could be seen that the Respondent’s position was – as was outlined in his (Mr Bain’s) affidavit filed on 11 November 2013 - that, by way of alternative to his primary position that Ms Bain’s Application in a Case should be dismissed, he would be willing to undertake to hold the monies in trust pending further order.

7. Mr Baston’s submission included that the application to amend the December 2013 Order by deleting the preamble sought impermissibly to go behind the Order without evidentiary support; that is, the application agitated by Mr Richardson SC sought to vacate, discharge or remove the recording of the acceptance of the Undertaking, which went to the heart of the Contempt Application before the Court. He submitted that, despite there being correspondence on behalf of the Applicants and the Respondent after Ms Bain’s death, there was no indication -until it was raised by Mr Richardson SC - that the Respondent suggested that the December 2013 Order contained an error (being the recording of the acceptance of the Undertaking) and/or that he intended to seek to persuade the Court to rectify this asserted error pursuant to Rule 17.02.

8. It is accepted that the contents of Mr Dick’s written submissions on behalf of the Respondent during the course of the November 2013 appearance were supplemented by oral submissions made that day. The transcript[4] of that appearance [5] is Exhibit 1 for the purpose of this preliminary application.

   [4]Rule 15.75 which provides that a transcript of a hearing or trial may be received in evidence as a true record of the hearing or trial.

   [5]          and that of 12 December 2013. 

9. Reference to the contents of Exhibit 1[6] reveals that the following submissions (relevant to a consideration of the current point) were then made by Mr Dick on behalf of the Respondent:

   As your Honour will note from paragraph 24 of the husband’s affidavit, he is willing to undertake, should he receive any benefit under the life insurance component of his personal protection portfolio – he is willing to undertake to hold those proceeds in his solicitor’s trust account pending any further order of the court. So, contrary to the submission made by my learned friend, the husband doesn’t seek to immediately access or take a benefit from the demise of his former wife or the event giving rise to his benefit under that insurance contract. What he is willing to do is hold those proceeds on trust until these proceedings – until your Honour makes a further order on application by either party or until your Honour resolves the proceedings on a final basis…

   (my emphasis)

   [6]           at p.11.

10. And further[7] (again, emphasis added):

    … We say the safest – in my respectful submission – the safest way to proceed and that the best way to proceed, I should say, regardless of safety or otherwise, is for the monies to be held on trust pending any further order that might need to be made, and any – and that would be open to either party to make an application at a subsequent time.

    [7]          at p.13.

11. Mr Richardson accepts that Mr Dick’s oral submissions contain no reference to the “alternative” proposition advanced in his (earlier created) written submissions.

12. I do not accept the submissions made by Mr Richardson SC to the effect that that which was spoken by Counsel during oral submissions should not be regarded as overtaking (as it were) the Respondent’s position that the proffering of an Undertaking was to be considered only as an alternative to his primary position that Ms Bain’s Application in a Case be dismissed.

13. Whatever may have been the initial position, submissions made by Counsel on the Respondent’s behalf amounted, in my view, to the proffering of the Undertaking recorded on the face of the December 2013 Order.

14. I am not persuaded that the December 2013 Order contains any error obvious when reading it.

15. Additionally, it could not be thought in this case that the amendment or rectification proposed by Mr Richardson SC is one in respect of which no real difference of opinion exists or that it is uncontroversial or that it does not involve the exercise of an independent discretion or that it is not a matter upon which a real difference of opinion might exist.[8]

    [8]          Russell & Russell (1999) FLC 92 -839

16. I also note that, on 24 July 2014, I made an Order dismissing Mr Bain’s application for an order that Ms Bain pay his costs of and incidental to the interim application determined by the December 2013 Order - such application was made consequent upon the terms of the December 2013 Order which provided for the mechanism by which it might be made. It was not suggested at the time – or, as I have already said, at any time prior to the hearing of the Application for Contempt - that the December 2013 Order contained an error.

17. Additionally, I do not accept the thrust of the additional submissions contained in paragraph 2 of the husband’s Submissions in Response filed 19 October 2015. I consider that, whilst Ms Bain’s application – which was for the transfer of the insurance policy to her – was unsuccessful, the hearing also included a consideration of the “protection” of the proceeds of the policy pending final determination by the Court of the proceedings for orders pursuant to s 79 of the Act: so much was clearly acknowledged by the husband’s material and the submissions made on his behalf. It is within such context that the December 2013 Order was made in its terms.

18. For the reasons outlined above, I dismiss the Application in a Case filed, by leave, by the Respondent on 6 October 2015.

Do the Applicants have standing to commence and prosecute the Application for Contempt?

1. The Court has, subject to the Family Law Act 1975 (Cth) and any other Act, the same power to punish contempt of its power and authority as is possessed by the High Court in respect of contempt of the High Court.[9]

   [9]          Family Law Act1975 (Cth), s 35

2. Section 112AP of the Family Law Act 1975 (Cth), which applies to a contempt of Court that constitutes a contravention of an order[10] under the Act and involves a flagrant challenge to the authority of the Court, provides that, in spite of any other law, a Court having jurisdiction under the Family Law Act 1975 (Cth) may punish a person for contempt of that Court.[11]

   [10]defined in s 112AP(9) of the Act to mean an order under the Act within the meaning of Part XIIIA

   [11] s 112AP(2) of the Act.

3. The Family Law Rules 2004 provide for the practice and procedure as to charging with contempt and the hearing of that charge.[12]

   [12] s 112AP(3) of the Act.

4. Part 21.1 of the Rules applies to an application such as that filed by the Applicants for an order that another person (the Respondent) be punished for contempt of Court.[13]

   [13]         Rule 21.01(d)

5. Nothing in either the Act or the Rules restricts the category of persons who may apply for an order that another person be punished for contempt. In fact, Rule 21.02(1) specifically provides that ‘a person’ seeking to apply for an order under Part 21.1 of the Rules must file an application for contempt.

6. In R v Dunbabin; ex parte Williams[14], the majority of the High Court[15]noted that it had been held that an application for contempt could be commenced by a person who had no particular interest in the contempt complained of.[16]

   [14] (1935) 53 CLR 434

   [15]         Rich , Evatt and McTiernan JJ

   [16]         at p.445.

7. In In the Marriage of McJarrow[17], Evatt CJ noted that there was no restriction on the person who may bring proceedings for contempt constituted by the “wilful disobedience of a decree of a court.”[18] In Wade and Faull v Gilroy[19], Frederico J noted that, as is now the case, the then applicable Rule empowered any person to file an application for contempt of Court. With the apparent concurrence of both Simpson and Murray JJ[20], his Honour said that it was not necessary that a person who filed an application for contempt should otherwise be a party to the proceedings.

   [17] (1980) 50 FLR 429

   [18]         at 431; see also European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 458

   [19] (1986) FLC 91-722

   [20]each of their honours having had the benefit of the opportunity to read his judgment prior to the delivery of their own and neither recording any dissent with his statements in respect of standing.

8. Whilst Cohen J in Hall & Hayne[21] accepted an argument that, where the allegation of contempt amounts to a contempt in the face of the Court, a person such as the husband in that case had no standing to bring the proceedings for such contempt - seemingly because he considered they ought be brought by or on behalf of the Court - the current application does not involve an assertion of contempt in the face of the Court. Additionally, insofar as it may be thought that his Honour’s comments – which of course do not bind me - suggest that s 112AP of the Act requires that only a Judge or officer of the Court asserting the Court’s authority can bring an application seeking that a person is punished for contempt, I respectfully disagree.

   [21](unreported, Family Court of Australia, Cohen J, 13 March 1995)

9. Having regard to the above, I consider that the Applicants have standing to prosecute such application. This conclusion renders unnecessary any further consideration of those submissions made by Mr Richardson SC in respect of the nature of a right to assert a contempt.

10. For the reasons outlined above, I decline to dismiss the Application for Contempt filed 30 July 2015.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 4 February 2016.

Associate: 

Date:              4 February 2016.