Bain & Bain (Deceased)

Case [2017] FamCAFC 80


FAMILY COURT OF AUSTRALIA

BAIN & BAIN (DECEASED) [2017] FamCAFC 80

FAMILY LAW – APPEAL – CONTEMPT – STANDING – Standing of Legal Personal Representatives to bring a contempt application – Consideration of role of Legal Personal Representatives pursuant to s 79(8) of Family Law Act 1975 (Cth) – History of contempt procedures in previous Rules and Regulations – Necessary to give effect to the proper meaning of the Act and Rules – Where the Legal Personal Representatives have standing pursuant to the Family Law Rules 2004 (Cth) – No appealable error.

FAMILY LAW – APPEAL – CONTEMPT – Appeal against finding of contempt and penalty – Where a key issue was whether the husband had knowledge of the undertaking he was bound by – Rejection of husband’s evidence as inherently unbelievable – Use of circumstantial reasoning and inferences – Failure to address evidence inconsistent with the husband’s guilt – Where the trial judge was required to be satisfied beyond reasonable doubt of the husband’s state of mind at the relevant time, not the state of mind of a hypothetical person – Appealable error demonstrated.

FAMILY LAW – APPEAL – JURISDICTION – UNDERTAKINGS – Whether the Court had jurisdiction to accept an undertaking from the husband – Undertaking in interim proceedings in relation to the subject matter of the litigation – Power of the Court to make injunctions per s 114(3) of the Family Law Act 1975 (Cth) – No appealable error.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the husband’s evidence was largely unchallenged – Reliance on matters not put to the husband – Where the trial judge did not indicate a disbelief of the husband’s evidence – Where the trial judge produced costs submissions from the court file that were not otherwise before her – Where the trial judge did not make clear the conclusions she believed flowed from the fact of their filing – Denial of procedural fairness – Appealable error demonstrated.

FAMILY LAW – APPEAL – RE-EXERCISE – CONTEMPT – No direct evidence as to the husband’s knowledge of the undertaking – Unchallenged evidence of the husband – No satisfaction beyond reasonable doubt that the husband knew of the undertaking at the time he disbursed the funds – Contempt application dismissed.

FAMILY LAW – APPEAL – COSTS – First instance costs order set aside – Timetable provided for submissions concerning costs at first instance and on appeal.

Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) ss 4(1), 79(1A), 79(8), 112AA, 112AD, 112AP, 114

Family Law Rules 2004 (Cth) rr 6.15, 17.02, 21.02
Family Law Rules 1984 (Cth) Order 35
Family Law Regulations 1975 (Cth)  reg 137(4)

Abduramanoski v Abduramonoska (2005) FLC 93-215
Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development (2014) 254 CLR 394
Attwood v The Queen (1960) 102 CLR 353
Bale v Mills (2011) 282 ALR 336
Barca v The Queen (1975) 133 CLR 82
Braysich v The Queen (2011) 243 CLR 434
Browne…

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Details
AGLC
Bain & Bain (Deceased) [2017] FamCAFC 80
Case
[2017] FamCAFC 80
Decision Date

CaseChat Overview and Summary

The Bain & Bain (Deceased) case involved an appeal against a finding of contempt and penalty, as well as issues of jurisdiction, procedural fairness, and costs. The appeal was brought by the husband, who was the appellant, against the orders made by Hogan J on 9 August 2016. The husband was found in contempt for failing to comply with an undertaking he had given in relation to the disbursement of funds during the family law proceedings. The respondents, who were the legal personal representatives of the deceased wife, had brought the contempt application against the husband. The husband contested the finding of contempt and the penalty imposed on him.

The legal issues in the case included the standing of the legal personal representatives to bring a contempt application, the husband's knowledge of the undertaking he was bound by, the court's jurisdiction to accept an undertaking, and whether the trial judge had denied procedural fairness to the husband. The court had to consider the role of legal personal representatives under section 79(8) of the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth) to determine their standing to bring a contempt application. The court also had to consider whether there was sufficient evidence to prove that the husband had knowledge of the undertaking he was bound by, beyond reasonable doubt, and whether the trial judge had denied procedural fairness to the husband.

The court found that the legal personal representatives had standing to bring a contempt application under the Family Law Rules 2004 (Cth). However, the court found that there was no direct evidence that the husband had knowledge of the undertaking he was bound by, and the unchallenged evidence of the husband was not enough to satisfy the court beyond reasonable doubt that he knew of the undertaking at the time he disbursed the funds. The court also found that the trial judge had not denied procedural fairness to the husband, as the judge had not indicated a disbelief of the husband's evidence and had not relied on matters not put to the husband. However, the court found that the trial judge had made an error in concluding that the husband was in contempt without considering evidence inconsistent with his guilt.

The appeal against the orders of Hogan J of 9 August 2016 was allowed, and the orders 1 to 4 made on that date were set aside. The respondents' application for contempt was dismissed. The court set a timetable for submissions concerning costs at first instance and on appeal. The appellant husband was required to file and serve written submissions dealing with the issue of costs within 21 days of the orders, and the respondents were required to file and serve written submissions in response within 14 days of service of the submissions. The appellant husband could then file and serve submissions in reply within seven days of service of the submissions. The same timetable applied to the costs of the hearing at first instance. The court also ordered that a copy of the reasons for judgment be forwarded to the Legal Services Commission Queensland and the Queensland Law Society.

Orders

Orders of the court

1.

The appeal against the orders of Hogan J of 9 August 2016 is allowed and orders 1 to 4 made on 9 August 2016 are set aside.

2.

The respondents’ application for contempt filed on 30 July 2015 be dismissed.

3.

In relation to the costs of the appeal:

(a) Within 21 days of these orders the appellant husband shall file and serve written submissions (not exceeding 10 pages) dealing with the issue of costs.

(b) Within 14 days of service of the submissions referred to in Order 3(a), the respondents shall file and serve written submissions in response (not exceeding 10 pages).

(c) Within seven days of service of the submissions referred to in Order 3(b), the appellant may file and serve submissions in reply (not exceeding five pages).

4.

In relation to the costs of the hearing at first instance:

(a) Within 21 days of these orders the appellant husband shall file and serve written submissions (not exceeding 10 pages) dealing with the issue of costs.

(b) Within 14 days of service of the submissions referred to in Order 4(a), the respondents shall file and serve written submissions in response (not exceeding 10 pages).

(c) Within seven days of service of the submissions referred to in Order 4(b), the appellant husband may file and serve submissions in reply (not exceeding five pages).

5.

A Registrar of the Family Court of Australia forward a copy of these reasons for judgment to the Legal Services Commission Queensland, and the Queensland Law Society.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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