Baldwin and Baldwin
[2012] FMCAfam 713
•23 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALDWIN & BALDWIN | [2012] FMCAfam 713 |
| FAMILY LAW – Contravention Application filed by the wife relating to property matters – sealed copy of the Order relating to the alleged breach not annexed to the Contravention Application – oral application made by the husband to have the wife’s Contravention Application struck out – husband’s oral application is dismissed. |
| Federal Magistrates Court Rules 2001, rr.1.03, 1.06, 2.04, 25B.01, 25B.02 |
| Georgopoulos & Georgopoulos (1983) FLC 91-305 |
| Applicant: | MS BALDWIN |
| Respondent: | MR BALDWIN |
| File Number: | MLC 10158 of 2008 |
| Judgment of: | Curtain FM |
| Hearing date: | 22 June 2012 |
| Date of Last Submission: | 22 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 23 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms O'Connell |
| Solicitors for the Applicant: | Macpherson + Kelley Lawyers |
| Counsel for the Respondent: | Ms McCreadie |
| Solicitors for the Respondent: | Rosetta Traficante Solicitor |
ORDERS
THE COURT ORDERS THAT:
Compliance with Rule 25B.02 of the Federal Magistrates Court Rules 2001 be dispensed with.
The oral application of the Respondent husband made on 22 June, 2012 that the Contravention Application of the Applicant wife filed on 24 May, 2012 to be struck out, is dismissed.
AND THE COURT NOTES THAT:
(A)The matter remains adjourned to the Dandenong Registry of this Court on 29 October, 2012 at 10.00 am for Final Hearing, with an estimated hearing time of two days (“the Final Hearing”).
(B)The question of payment of reserved costs will be dealt with by the Court, inter alia, at the Final Hearing.
IT IS NOTED that publication of this judgment under the pseudonym Baldwin & Baldwin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
MLC 10158 of 2008
| MS BALDWIN |
Applicant
And
| MR BALDWIN |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Background
On 20 January, 2012 the wife caused the following to be filed:
a)an Initiating Application seeking the following Final Orders:
“1. The Husband pay to the Wife a sum equal to 52.5% of the difference between the sale price of the [K] property and the valuation of the [K] property plus any applicable interest and other loss arising from the husband’s breach of the Orders made by his [sic] Honourable Court on 1 April 2009.
2. That the respondent pay the applicant’s costs.
3. Such further and other orders as this Honourable Court considers just and equitable in the circumstances.”;
b)a Contempt Application, alleging in Part C at page 2 that on 23 February, 2011 in Victoria:
“The husband signed a contract of sale for the property situated at [K] without my agreement pursuant to paragraph 4 of the Final Orders made in the Federal Magistrates Court by Federal Magistrate Walters on 1 April 2009”; and
c)a nine page Affidavit with 52 pages of annexures, affirmed on 18 January, 2012.
Of note, in that Affidavit was annexure “JB 1” which purported to be a sealed copy of the Orders of this Court made on 1 April, 2009, that the Applicant wife was seeking redress about.
These documents were served on the husband on 13 February, 2012 and he subsequently, on 24 February, 2012 e-filed the following documents:
a)a Response, which sought that the wife’s Application be struck out with costs;
b)an Affidavit of the Respondent husband sworn 24 February, 2012, where he refers to the Orders made 1 April, 2009 at paragraphs 12 and 13; and
c)an Affidavit sworn by his sister, a Ms B on 24 February, 2012.
On the first return date being, 27 February, 2012 the matter was before me in the duty list. There was a brief discussion about the issues and given that it could not be heard that day it was adjourned to a long Interim Hearing before me on 22 June, 2012. The parties entered into procedural Orders. There was no suggestion that the husband was unaware of the contents of the Orders made on 1 April, 2009.
Subsequently on 24 May, 2012 the wife caused to be filed a Contravention Application returnable on 25 June, 2012 and a further Affidavit by her affirmed 23 May, 2012. In paragraph 2 of that Affidavit she referred to her earlier Affidavit being the Affidavit that annexed the Order of 1 April, 2009 at annexure “JB 1”. Time was abridged by consent for the matter to proceed before me on 22 June, 2012.
At page 2 of that Contravention Application, and the first paragraph after the heading “Part D Details of the alleged contravention” it says:
“You must attach a copy of the order, bond, agreement, parenting plan or undertaking that you allege has been contravened, or a copy of the recovery order if you have it.”
This was not done. It was common ground that there was no copy of the Order of 1 April, 2009 attached to the Contravention Application filed on 24 May, 2012.
When this matter came before me on 22 June last, after some preliminary discussion between the bar and the bench, Counsel for the Respondent husband made a preliminary submission that the Contravention Application must be struck out given that Part D of that Application, referred to in paragraph 6 above, was not complied with and Ms McCreadie argued that as a copy of the Order that was alleged to have been contravened was not annexed to that Application, it was defective and, “the rules are very clear on how a contravention is supposed to be treated.”
Moreover, it was submitted that there was no discretion about annexing a copy of the Order, given the use of the expression “You must”. Counsel did not provide me with any authorities in support of her submissions, nor refer to any legislation or rules.
In response it was submitted by Counsel for the Applicant wife, “…we have got an affidavit where the entire order is attached to the affidavit. There’s reference throughout the affidavit to the order. There’s a clear reference to the order in the contravention – the contempt and the contravention application. He has had these things in his hand since January this year.” Counsel was referring to the wife’s Affidavit that was filed on 20 January, 2012 along with the Contempt Application and Initiating Application.
Ms O’Connell went on to submit as follows:
“I don’t think anyone could reasonably say from looking at the contravention application and the affidavits that have been filed in these proceedings given the history of it that the husband wasn’t well and truly informed of the order that it is alleged that he has breached.”
Counsel for the wife did not cite any authorities in support of her submissions, nor refer to any legislation or rules.
I then made an Order, inter alia, that the parties had fourteen days to provide written submissions on this threshold matter, but none were received by my Chambers.
Must the Contravention Application be struck out?
Division 25B.1 of the Federal Magistrates Court Rules 2001 (“the Rules”) refers to Applications for contravention of Orders and says at 25B.01:
“Application of Division 25B.1
This Division applies to an application for an order:
…
(b) under Part XIIIA of the Family Law Act.”
At 25B.02 of the Rules it states:
“How to apply for an order
(1) An application must be in accordance with the approved form.
(2) The applicant must file with the application an affidavit that:
(a) states the facts necessary to enable the Court to make the orders sought in the application; and
(b) has attached to it a copy of any order, bond, agreement or undertaking that the Court is asked to enforce or that is alleged to have been contravened.”
At 2.04 of the Rules:
“Forms
(1A) The Chief Federal Magistrate may approve a form for a provision of these Rules.
(1) Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.
(2) A document prepared in the form prescribed for a similar purpose for the Family Court or the Federal Court may be taken to substantially comply with the appropriate form for a proceeding.”
It should be noted that neither party is suggesting that the Contravention Application filed by the wife in this matter is not in an “appropriate form”.
I also refer to Chapter 1 of the Rules at 1.03 where it says:
“Objects
(1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings.
(2) In accordance with the objects of the Act, the Rules aim to help the Federal Magistrates Court:
* to operate as informally as possible
* to use streamlined processes
* to encourage the use of appropriate dispute resolution procedures.
(3) The Court will apply the Rules in accordance with their objects.
(4) To assist the Court, the parties must:
* avoid undue delay, expense and technicality
* consider options for primary dispute resolution as early as possible.”
And at Rule 1.06 of the Rules it says:
“Court may dispense with rules
(1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
(2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.”
I also refer to the Full Court case of Georgopoulos & Georgopoulos (1983) FLC 91-305. In that matter, the wife brought an appeal against an Order made by a single Judge at first instance, who dismissed her application seeking that the husband be dealt with for contempt pursuant to (the then) s.108 of the Family Law Act 1975 for failing to comply with earlier sole use, non-molestation and harassment Orders.
A single Judge dismissed her application because there was no evidence of service on the husband of a sealed copy of the Orders he was said to have breached, which the Judge required under his interpretation of the then Family Law Regulations. At page 78, 078 of the case, Evatt C.J. said as follows:
“The whole tenor of his Honour’s comments and ruling on the matter seemed based on his Honour’s belief that, in order for a contempt matter to proceed before the Court, there must be evidence of service upon the party of a sealed copy. Now, while that is an admirable rule to follow in the generality of cases, it is not an absolute requirement. The cases to which we have been referred establish the actual requirement, that the Court be satisfied that the person against whom the contempt is alleged knows of the order that he is required to obey and breaches it, knowing of it. Now, that was a statement which the Court made in Sahari and Sahari (1976) FLC ¶90-086 and which was quoted in the case of Angelis & Angelis (1978) FLC ¶90-503 decided by Murray J. It must be taken now that the established requirement is not that there be service of a sealed copy of the Court order, but that the Court must be satisfied beyond reasonable doubt that the person knew of the contents of the order insofar as they relate to the alleged contempt and knew that the order had been made.”
In the same case whilst concurring with the Chief Justice, Watson S.J. referred in more detail to the above authorities and said:
“In the case of Angelis & Angelis (1978) FLC ¶90-503, Murray J. dealt at length, and in my opinion correctly, with the relevant law in a matter such as this. She quoted at p. 77,635 an extract:
“…it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order was pronounced.”
Her Honour went on to quote Sahari and Sahari (1976) FLC ¶90-086 and pointed out that at p. 75,406 the Full Court had said in that case that a person could be found guilty of contempt of Court only if he knows of the order he is required to obey and is in breach of that order. Her Honour concluded the judgment with this statement, at p. 77,636:
“The onus lies on the wife, of course, to prove beyond reasonable doubt that the husband had adequate notice of the order prior to the committal of the alleged breach.””
Whilst Georgopoulos is concerned with notice in contempt proceedings, in my view the approach is also relevant to Contravention proceedings.
Conclusion
When reading the Rules as a whole and particularly noting the Objects in Rule 1.03 and the authority of Georgopoulos, it is my view that the threshold application of the Respondent husband is overly technical and legalistic. It is clear on any view that the husband has had, on a number of occasions, full notice of the Order previously made by consent on 1 April, 2009 and an opportunity to fully read the material and Affidavits of the wife. It could not be said that he is taken by surprise, nor that there is anything before the Court that he is not prepared to meet in defence of the wife’s allegations. I am satisfied that there has been substantial compliance with the Rules.
To the extent that it is necessary, I dispense with compliance with 25B.02 of the Rules pursuant to Rule 1.06.
Therefore, it is my conclusion that the oral application of the Respondent husband for the Contravention Application to be struck out, is dismissed and the matter should proceed as soon as possible on the next return date.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Curtain FM
Date: 23 July 2012
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