Cluny & Skinner

Case [2017] FamCA 255

FAMILY COURT OF AUSTRALIA

CLUNY & SKINNER [2017] FamCA 255

FAMILY LAW – CONTEMPT – where it is alleged that the husband contravened the terms of an order in a manner which involves a flagrant challenge to the authority of the Court –  where the order required the husband to “hand his passport” to the wife’s solicitors “only to be released by consent of the parties or by an order” of the Court – where the husband provided the wife's solicitors with his passport – where the husband subsequently applied to the Department of Foreign Affairs and Trade for a replacement passport –where the husband falsely declared to the department that he had lost his passport – where the husband subsequently failed to deliver his new passport to the wife's solicitors – where the husband subsequently travelled internationally over a long time – where it is alleged that the husband’s conduct amounts to contempt – where the husband admits the conduct – where the husband asserts that in delivering his passport to the wife’s solicitors he complied with the terms of the order and his subsequent conduct does not amount to a breach of the order – where the husband’s application for, and failure to deposit with the wife’s solicitor, his second passport is found to be contemptuous – where further hearing to occur to determine sanction.

FAMILY LAW – CONTRAVENTION – where the husband was previously ordered to make various cash payments to the wife including by way of child support, spouse maintenance, lump sum arrears and costs – where the husband failed to meet these payments – where in excess of $250,000 remains unpaid – where the husband admits to failing to make the payments – where the husband contends he has a reasonable excuse – where the husband contends his impecuniosity is a reasonable excuse – where adverse credit findings are made – where the husband has failed to establish that he is impecunious – where it is found that the husband contravened the orders without reasonable excuse – further hearing to occur to determine penalty.

Australian Passports Act 2005 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) (2007) 161 FCR 513
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Blair & Ors & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464
Bryant and Bryant (1996) FLC 92-690
Ganem & Ganem (No. 2) [2013] FamCA 257
Gilmour and Gilmour (1995) FLC 92-591
Gyselman and Gyselman (1992) FLC 92-279
Iberian Trust, Ltd v Founders Trust and Investment Company, Ltd [1932] 2 KB 87
ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 Jackson v Goldsmith (1950) 81 CLR 446
Liesert v Nutsch (1996) FLC 92-665
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Queensland Trustees Ltd & Ors v Commissioner of Stamp Duties (Q) (1956) 96…

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Cluny & Skinner [2017] FamCA 255
Case
[2017] FamCA 255
Decision Date

CaseChat Overview and Summary

In the matter of *Cluny & Skinner*, Kent J of the Family Court of Australia considered allegations of contempt and contravention of court orders brought by the wife against the husband. The dispute involved the husband's alleged failure to comply with orders requiring him to surrender his passport and to make significant financial payments, totalling over $250,000. The husband admitted to the conduct in question but contended that his actions did not constitute a breach of the orders or that he had a reasonable excuse for his non-compliance.

The court was required to determine whether the husband's actions amounted to contempt of court, specifically a flagrant challenge to the authority of the court, in relation to the passport order. This involved construing the terms of the order and assessing whether the husband's conduct, including obtaining a replacement passport and travelling internationally, breached its requirements. Additionally, the court had to determine whether the husband had contravened the financial orders without reasonable excuse, considering his defence of impecuniosity.

Kent J found that the husband's application for and failure to deposit his replacement passport with the wife's solicitors constituted contemptuous conduct, involving a flagrant challenge to the court's authority. The court also found that the husband had contravened the financial orders without reasonable excuse, rejecting his claim of impecuniosity due to adverse credit findings. The court declared the total amount owing by the husband to the wife under various orders, including child support, spouse maintenance, and arrears, and adjourned further hearings to determine appropriate sanctions for the contempt and penalties for the contraventions.

Orders

Orders of the court

1.

Each of the wife’s:

(a) Amended Application-Contempt filed 24 August 2015; and

(b) Application-Contravention filed 25 August 2015;

be adjourned for mention before his Honour Justice Kent at 9.30 am on 29 May 2017 for the making of directions with respect to the filing of evidence and submissions, and the fixing of a further hearing date, for the hearing and determination of any sanctions to be imposed.

2.

That the orders sought by the husband in his Amended Response to an Application in a Case filed 5 August 2015 with respect to his passport be adjourned to be determined in conjunction with the hearing and determination referred to in paragraph (1) of these Orders.

3.

Pursuant to r 20.07(a) of the Family Law Rules 2004 (Cth) (“the Rules”) IT IS DECLARED that the total amount owing by MR SKINNER to MS CLUNY pursuant to the Orders of this Honourable Court made on 16 April 2013 is as follows:

(a) Order (2) – $76,867.55 to 20 August 2015 plus interest thereafter calculated in accordance with s 117B of the Family Law Act 1975 (Cth) (“the Act”) and the Rules on any part of that capital sum remaining unpaid from 20 August 2015;

(b) Order (3) – $14,369.32 to 20 August 2015 plus interest thereafter calculated in accordance with s 117B of the Act and the Rules on any part of that capital sum remaining unpaid from 20 August 2015;

(c) Order (5) – $32,200;

(d) Order (6) – $37,739.34 to 20 August 2015 plus interest thereafter calculated in accordance with s 117B of the Act and the Rules on any part of that capital sum remaining unpaid from 20 August 2015;

(e) Order (7) – $91,947.57 plus interest thereafter calculated in accordance with s 117B of the Act and the Rules on any part of that capital sum remaining unpaid from 20 August 2015;

(f) Order (8) – $2,931.74.

4.

Other than with respect to orders sought by the husband in relation to the return of his passport to be dealt with at the further hearing provided for by these Orders, all other orders sought by the husband in any pending application or response filed by him (other than parenting orders applications) be dismissed.

5.

All applications for costs of and incidental to any of the proceedings the subject of these Orders be heard and determined in conjunction with the determination referred to in paragraph (1) of these Orders.

6.

All other outstanding applications, other than parenting orders applications, be otherwise dismissed.

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

Background

Background to the litigation

It bears some emphasis that in a case such as the present, where the contest lies not so much as to the facts of what occurred subsequent to the making of the subject injunction as regards to the husband’s conduct (which as will be discussed are essentially not in issue), but as to whether the terms of the injunction captured that conduct, it is the facts which must be proved beyond reasonable doubt. That is, the domestic law and its proper application to establish facts is not a matter for proof or disproof. The proper construction of an order or injunction is not a matter of fact but a question of law (per Branson J with whom Lindgren J substantially agreed and Finkelstein J agreed) in Universal Music Australia Pty Ltd v Sharman Networks Ltd (“Universal”).[7] [7] (2006) 150 FCR 110. Section 112AP of the Act provides:(1) Subject to subsection (1A), this section applies to a contempt of a court that:(a)does not constitute a contravention of an order under this Act; or(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court. Obviously enough the wife’s application relies upon subsection (b) of this section. Section 112AB of the Act provides:(1) A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:(a) where the person is bound by the order–he or she has:(i) intentionally failed to comply with the order; or(ii) made no reasonable attempt to comply with the order; or(b) in any other case–he or she has:(i) intentionally prevented compliance with the order by a person who is bound by it; or(ii) aided or abetted a contravention of the order by a person who is bound by it. The meaning of “order under this Act” is a term defined under s 112AA. There is no suggestion that the subject order was not an “order under this Act” within the meaning of that definition. Section 112AC provides for the meaning of “reasonable excuse for contravening an order” for the purposes of the division. That section provides:(1)The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).(2) A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and(b) the court is satisfied that the respondent ought to be excused in respect of the contravention. The application of the principles and the procedure to be applied with respect to s 112AP were articulated by Aldridge J in Ganem & Ganem (No. 2)[8] and I respectfully adopt his Honour’s formulation as follows:[8] [2013] FamCA 257.PRINCIPLES AND PROCEDURE TO BE APPLIED9.I take the principles and procedure to be applied to derive from the sections set out above, the general law and Rule 21.08 of the Family Law Rules.10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195;(2002) FLC 93-107)11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:·The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)·The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75, 294) ·The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend[ed] to do the act which is alleged to be the contempt. In the Marriage of English, above.·The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) [sic] 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” … is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.

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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