Bendon and Bendon

[2016] FamCA 310

FAMILY COURT OF AUSTRALIA

BENDON & BENDON [2016] FamCA 310

FAMILY LAW – Contempt – application flawed – summarily dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Bendon

RESPONDENT: Mr Bendon

FILE NUMBER: DGC 672 of 2014

DATE DELIVERED: 5 April 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 April 2016

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms O'Connell

SOLICITOR FOR THE RESPONDENT: Fiona R Mcgregor

Orders

1. That the application filed 15 February 2016 (the contempt application) is struck out.

2. That the reasons this day be transcribed.

3. That the respondent’s application under s 102QB of the Family Law Act 1975 (Cth) is adjourned to the Judicial Duty List at 10.00am on 5 July 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bendon & Bendon 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 MELBOURNE

FILE NUMBER: DGC 672  of 2014

Ms Bendon

Applicant

And

Mr Bendon

Respondent

REASONS FOR JUDGMENT

1. This is an application between Ms Bendon and Mr Bendon in the judicial duty list.  There were two applications before the court today.  The first in time was filed by Ms Bendon on 15 February 2016.  And the second was by Mr Bendon which is an application under the recent amendment to the Family Law Act that gives the court power to declare a particular litigant vexatious.  It seems common ground that the vexatious litigant application is to be adjourned.  And as that is a matter that, no doubt, will be contested, because Ms Bendon has told me so, it should go to the trial list;  it is not a matter that should be dealt with in the judicial duty list. 

2. Turning then to the other application which, is the first in time, Ms Bendon filed a contempt application on 15 February 2016.  It must, to some extent, be put in context:  that this case was before Justice Johns on 20 January 2016, and before Justice Macmillan on 3 February 2016, and the volume of the file that I am looking at is number 5.  One might conclude that this case has been around for quite some time. 

3. The contempt application is not only opposed, but I am asked by counsel for the respondent to strike it out on the basis that there is no basis for me to ask Mr Bendon to respond to it.  It is to that issue that I first turn, noting that Ms Bendon says that she wants to proceed with her application.  She says she has further evidence, but she does not want the matter to be consolidated with the other application.  In her contempt application, she says:

   The loans have still not been transferred out of my name.  Several requests have been made.  Court orders state after 60 days of orders dated 21  April 2015.  Justice Johns stated there was no excuse for this not happening;  complete disregard for the court and its orders.

4. One might conclude that that is, indeed, an allegation of the breach of an order.  But it is a distinctly different thing to accuse someone of deliberately defying a court order, as distinct from breaching it.  At this stage I have no evidence from Mr Bendon whatsoever.

5. To give some credence to that application, one would have to look at the affidavit that Ms Bendon filed on 15 February with the contempt application.  Page 2 behind the coversheet is a copy of an email from a Ms R to Kenna Teasdale.  She then attached an email from Ms R to Fiona McGregor and others.  It seems the substance of the email says to Ms McGregor, starting off with a quote from an order of 21 April 2015, the following:

   Why has the husband still not fulfilled his part specified in paragraph 2.  I have proof that on 14 January 2016 the loans have still not been transferred, as my name is still on bank statements.  Your client obviously has no respect for her Honour’s orders dated 21/4/2015.  If I do not  receive notification from the bank of my removal from the accounts within seven days of this date, I will be filing a contempt order against him, and I will seek a costs order against your client.  This letter will be submitted to the court as evidence, and I will request that the house will be sold as per page 4, paragraph 12.  

   And then it is signed Ms Bendon.

6. A literal reading of that letter indicates that there is an accusation that the order has not been complied with, and that if compliance is not immediately following then a contempt application will follow.  But, more importantly, the letter goes on to say that Ms Bendon will request the house be sold.  That evidence can have little probative value in respect to establishing defiance by someone of a court order. 

7. The page behind that attaches another email which seems to largely address a raft of issues about Centrelink, child support, the child having bruises.  It goes on to talk about an interstate check child protection.  Otherwise, it is hard to see how that has got any probative value in terms of establishing, at a very high level of proof, that Mr Bendon has defied the court order. 

8. The third page is a further email which looks remarkably like the one at the first page, but it goes further.  It refers to the order itself.  And then it says that:

   Contemporaneously, the husband do all things and sign all documents to effect a refinance fixed rate and Bankwest lite home loan and secure the release of the wife.

   And then there is the following commentary:

   Considering the matter has already been back to court, and I was forced under duress to sign documents to enable the transfer of said property to the husband, why has the husband still not fulfilled his part specified in paragraph 2? I have proof that on 14 January 2016 the loans have still not been transferred, as my name is still on bank statements.  Also, the amount of $3522.99 is still owing on child support to me from 2014. 

   And then there is the same reference as I earlier mentioned.

9. The fourth page is part of a printed form, and under the heading of Evidence makes a reference to some numbers.  The account was said to be still in joint names and Justice Johns had said “for the refinance there was no excuse why it was not done 20 January 2016”, and then there is reference to letters sent to Mr Bendon’ lawyer, Fiona McGregor and “Still:  the refinance is not done”. 

10. What all that clearly addresses is the question about the fact that the order is still in the executory stage and that, possibly, it could be concluded that Mr Bendon has some obligations still to fulfil.  None of it addresses the question of whether or not he is in defiance, in the general sense of the word of a court order.  This was not an application under Part XIIIA of the Act.  It was brought under Part XIIIB.  Section 112AP makes the distinction clear.  There is no evidence of a contravention of an order and involving a flagrant challenge to the authority of the Court.  In my view, the contempt application is fundamentally flawed, and there is no basis for me to put Mr Bendon to the test by asking him whether or not he admits or denies the contempt.

11. On that basis, the application filed on 15 February 2016 is struck out. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 April 2016.

Associate: 

Date:  5 May 2016