Bain (deceased) & Bain (No 2)

[2016] FamCA 602

FAMILY COURT OF AUSTRALIA

BAIN (DECEASED) & BAIN (NO. 2) [2016] FamCA 602

FAMILY LAW – CONTEMPT – where the respondent sought to have the application dismissed on the basis that the applicants have failed to demonstrate a prima facie case – whether the applicants have demonstrated a prima facie case – where the respondent’s application is dismissed.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth) s144

Aytugrul & The Queen (2012) 247 CLR 170
Crown Glass & Aluminium P/L v Ibrahim [2005] NSWCA 195
Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394
Norrie & NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145
Prentice & Cummins (No 5) (2002) 124 FCR 67
Tony Giam (No 2) (1999) 109 A Crim R 348.

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

RESPONDENT: Mr Bain

FILE NUMBER: BRC 2481 of 2010

DATE DELIVERED: 31 March 2016 (orally);  settled and provided to the parties on 26 July 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 31 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Morgan

SOLICITOR FOR THE APPLICANTS: Blair Anderson Solicitor

COUNSEL FOR THE RESPONDENT: Mr Richardson SC

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim Lawyers

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bain (deceased) & Bain (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2481 of 2010

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

Applicants

And

Mr Bain

Respondent

REASONS

1. I decline to accede to the application to dismiss the Application – Contempt on the basis that the Applicants have failed to establish a prima facie case that the Respondent contravened the undertaking recorded on the face of the Order made 12 December 2013 in a manner which involves a flagrant challenge to the authority of the Court. 

2. In order to establish a prima facie case of contempt the evidence adduced by an Applicant must, if accepted, be capable of satisfying the Court beyond reasonable doubt that the Respondent’s actions constituted a contravention of the order and involved a flagrant challenge to the authority of the Court. 

3. At this stage of the proceedings I am, of course, only considering whether there is a prima facie case to answer, thus the question to be considered is whether the evidence is such that, if accepted as accurate, it would establish each essential element required to be established. 

4. The determination of such a question is necessary, because it is clearly established that a Respondent to proceedings such as these should only be required to respond if the evidence relied upon by an Applicant itself establishes a prima facie case of contempt.  If conduct complained of in the manner particularised cannot possibly amount to a contempt of court, then there would be no reason for the Court to require a defence to be given.  

5. I consider at this stage of proceedings that the evidence is such that, if accepted, it is capable of persuading the Court that the Respondent breached the order in a manner which involved a flagrant challenge to the authority of the Court. 

6. Whether that conclusion is ultimately reached depends, of course, upon a consideration of all of the evidence at the conclusion of the case. 

7. I do not intend at this stage to deliver further reasons for the ruling I have just provided, but rather propose to incorporate the same in the reasons I ultimately deliver in the final determination of the matter. 

8. It is, however, I consider, appropriate at this stage that I record that I have arrived at the conclusion outlined so far, having regard to the evidence relied upon by the Applicants, as listed in the list of material relied upon, and the Exhibits which together form the evidence. 

9. I have also had regard at this stage to the Order made 29 October 2013, as adverted to in the written submissions relied upon by the Respondent, and the Order made 24 July 2014, and to the knowledge that an Outline of Submissions on behalf of the Respondent (seeking an order that Ms Bain pay the costs of the Application in a Case determined by the Order made on 12 December 2013) was filed in Court on 13 February 2014 and that this Outline refers specifically to the December 2013 Order and an aspect of its terms. 

10. Insofar as these latter matters are concerned, I have relied on s 144 of the Evidence Act and have considered authorities which include Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394; Aytugrul & The Queen (2012) 247 CLR 170; Norrie & NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; Crown Glass & Aluminium P/L v Ibrahim [2005] NSWCA 195; Prentice & Cummins (No 5) (2002) 124 FCR 67; and Tony Giam (No 2) (1999) 109 A Crim R 348.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 31 March 2016.

Associate:    

Reasons Settled:    31 March 2016