Bain (deceased) and Bain (No 3) - [2016] FamCA 662

FAMILY COURT OF AUSTRALIA

BAIN (DECEASED) & BAIN (NO. 3)

[2016] FamCA 662

FAMILY LAW – CONTEMPT – Contravention of undertaking – Where the husband proffered an undertaking to pay funds into his solicitor’s trust account and hold them there pending further order of the Court – where he failed to do so – Where the husband’s actions amounted to a flagrant challenge to the authority of the Court – Where the husband is an officer of the Court – Punishment of imprisonment for six months ordered.

FAMILY LAW – COSTS – Whether circumstances are such that costs should be awarded on an indemnity basis – Where costs awarded on a party and party basis.

Family Law Act 1975 (Cth)

Kohan and Kohan (1993) FLC 92-340

APPLICANT:

Ms Little and Ms Searle, the Personal Representatives for Ms Bain (Deceased)

RESPONDENT:

Mr Bain

FILE NUMBER:

BRC

2481

2010

DATE DELIVERED:

9 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

26 July 2016 (amended pursuant to Rule 17.02A of the Family Law Rules 2004 to reflect the correct page number for a citation)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morgan

SOLICITOR FOR THE APPLICANT:

Blair Anderson Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

By way of punishment, pursuant to s 112AP(4) of the Family Law Act 1975 (Cth), the Respondent is sentenced to serve a term of imprisonment for a period of six (6) months with such term to commence from 4.00pm on 30 August 2016.
To give effect to Clause 1 of this Order, a Warrant of Commitment issue in the usual form but lie in the Registry until 4.00pm on 30 August 2016.
The Respondent pay the Applicant’s costs of and incidental to the Application – Contempt filed 30 July 2015 on a party/party basis as agreed, but failing agreement, as assessed.
The Respondent be at liberty to file an Application in a Case seeking that those costs payable by him pursuant to Clause 3 of these Orders be paid by instalments, provided that such application is filed and served by no later than:
(a)in the event the parties reach written agreement as to the quantum of the costs payable: within 14 days of the date the agreement is reached; or
(b)in the event the parties do not reach written agreement about the quantum of the costs payable: within 14 days of a costs assessment order being made by a Registrar.

IT IS DIRECTED

A Registrar of the Family Court of Australia forward a copy of the Reasons for Judgment delivered orally on 25 May 2016, as settled and provided to the parties on 26 July 2016, and the settled Reasons for Judgment delivered orally today to the Legal Services Commission, Queensland and the Queensland Law Society.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bain (Deceased) & Bain has been approved by the Chief Justice pursuant…

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.

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Details

Case: [2016] FamCA 662
Decision Date: 9 August 2016

CaseChat Overview and Summary

In *Bain (deceased) and Bain (No 3)*, Hogan J of the Family Court of Australia considered an application for contempt against the respondent husband. The dispute arose from the husband's failure to comply with an undertaking he had provided to the Court to pay specific funds into his solicitor's trust account and to hold them there pending further order.

The primary legal issue before the Court was whether the husband's actions constituted a contravention of his undertaking and, if so, what punishment was appropriate, particularly given that the husband was an officer of the Court. A secondary issue concerned the basis upon which costs should be awarded.

Hogan J found that the husband's failure to adhere to his undertaking amounted to a flagrant challenge to the authority of the Court. Applying principles of contempt of court, the Court determined that imprisonment was the appropriate punishment for this serious breach. The Court ordered that the respondent pay the applicant's costs of and incidental to the contempt application on a party and party basis.

Orders

Orders of the court

By way of punishment, pursuant to s 112AP(4) of the Family Law Act 1975 (Cth), the Respondent is sentenced to serve a term of imprisonment for a period of six (6) months with such term to commence from 4.00pm on 30 August 2016.

To give effect to Clause 1 of this Order, a Warrant of Commitment issue in the usual form but lie in the Registry until 4.00pm on 30 August 2016.

The Respondent pay the Applicant’s costs of and incidental to the Application – Contempt filed 30 July 2015 on a party/party basis as agreed, but failing agreement, as assessed.

The Respondent be at liberty to file an Application in a Case seeking that those costs payable by him pursuant to Clause 3 of these Orders be paid by instalments, provided that such application is filed and served by no later than:

(a) in the event the parties reach written agreement as to the quantum of the costs payable: within 14 days of the date the agreement is reached; or

(b) in the event the parties do not reach written agreement about the quantum of the costs payable: within 14 days of a costs assessment order being made by a Registrar.

IT IS DIRECTED

A Registrar of the Family Court of Australia forward a copy of the Reasons for Judgment delivered orally on 25 May 2016, as settled and provided to the parties on 26 July 2016, and the settled Reasons for Judgment delivered orally today to the Legal Services Commission, Queensland and the Queensland Law Society.

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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