Elia and Elia

[2000] FamCA 1314

[2000] FamCA 1314

FAMILY LAW ACT, 1975

FAMILY COURT OF AUSTRALIA
  No SY 4902 of 1999
AT SYDNEY  

IN THE MATTER OF:         MICHAEL ELIA                (Applicant Husband)

AND:  IRENE ELIA                      (Respondent Wife)

CORAM:  The Honourable Justice Mullane

Date of Hearing:  8 August 2000

Date of Judgment:                 8 August 2000

JUDGMENT OF THE COURT

(Ex-tempore)

Appearances:

Ms E Cohen of Counsel instructed by Messrs Hilton Lawyers, Solicitors, Level 3, 222 Clarence Street, Sydney, 2000, appeared for the Applicant Husband.
Mr M Errington of Counsel instructed by Messrs Karras Partners, Solicitors, DX  3622, Double Bay, appeared for the Respondent Wife.

ELIA – SY4902 of 1999

CONTEMPT – What constitutes contravention of court order – Sec. 112AA – meaning of  “order under this Act”, meaning of  undertaking "given to the Court in proceedings under this Act and accepted by the Court”.  Secs.112AD &  112AP(1)(a)  -application to breach of undertakings.
HEADNOTE: 
The applicant sought to have the respondent dealt with for contempt under Sec.112AP of the Family Law Act in respect of an undertaking filed with the Court.
There was no evidence that there were any proceedings between the parties at the time of filing the undertaking and no evidence that the undertaking was ever scrutinised or acknowledged by the Court by way of orders approving it, accepting it or relying upon it.
Held:  The undertaking was not “given to the Court in proceedings under this Act and accepted by the Court” for the purpose of the definition of “order under this Act” in Sec.112AA.  Contravention of the undertaking was therefore not a contravention of an order for purposes of Sec112AD. 
Sec 112AP(1) provides that the 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.”

Held: Beach of such an undertaking cannot be a contempt for purposes of Sec.112AP(1)(a).
1 This is an application under section 112AP of the Family Law Act for the respondent to be dealt with for contempt of court. The allegation is that the respondent gave an undertaking to the court dated 13 October. The undertaking was in fact a written undertaking in a prescribed form and a certificate by a legal representative is attached to that. The undertaking was not filed at the court on that day, but was filed by the applicant’s solicitors five days later. The evidence in support of the applicant’s case does not say that there were any proceedings between the parties at that time in this Court. Nor is it alleged that the undertaking was ever scrutinised by the Court in any way in open court or otherwise or the subject of any acknowledgment by the Court by way of orders approving it, accepting it or relying upon it.

1. It appears it was not used in any hearing. 

1. Section 112AP sets out in sub section 1, two areas of contempt of court that it covers. One is contempt that does not constitute a contravention of an order under the Act and the other is contempt which does constitute a contravention of an order under the Act and also involves a flagrant challenge to the authority of the court.

1. Section 112AA defines, for the purposes of that part, Part 13A "order under this Act" as meaning various things. In relation to undertakings it includes "an undertaking given to the court in proceedings under this Act and accepted by the court".

1. They are the only undertakings that are included in the definition of "order under this Act". 

1. There are two reasons why this undertaking does not satisfy that definition.  One is that it is not an undertaking that was given in proceedings.  The evidence available before me does not establish that there were any proceedings when the undertaking was entered or when it was filed.  The second reason is that there is no evidence that it was accepted by the court.  It was filed, but there is no evidence of any previous reliance upon it, acknowledgment of it, or awareness of it by a judicial officer.

1. So on that basis the undertaking is not, for the purposes of 112AP, an order under the Act.

1. The applicant has then nominated today to rely upon paragraph 112AP(1)(a) saying that the conduct was a contempt of court, being a contempt that:

(a) does not constitute a contravention of an order under this Act.

1. The scheme of Part 13A, which is headed "Sanctions for Failure to Comply with Orders and Contempt of Court" is that there are two levels of matters that are covered. One is those which come within section 112AD, which is "Sanctions for failure to comply with orders" and the other is those which come within the section 112AP which is "Contempt". The sanctions are quite different. They are much more severe for the matters under 112AP. They do not include any limitation, for example, on the period of imprisonment and under that provision a person can be imprisoned until such time as they cease the contempt.

1. Could a breach of an undertaking that was not given in proceedings and not accepted by the Court and that therefore cannot be given recognition under Sec 112AD be a contempt under section 112AP(1) (a)? The clear intention of Part 13A is that Section 112AP applies to only more serious matters. It is also the clear intention that breaches of only those undertakings, regardless of what they are about, that have been made in proceedings and accepted by the court are treated as if they were breaches of a court order. Indeed the actual form of the undertaking to some extent suggests that the undertaking itself is conditional upon it being accepted by the court because it acknowledges - that the undertaking has the same effect as an order of the court. That of course is not true unless the undertaking is given in proceedings and accepted by the court.

1. In those circumstances my view is that section 112AP(1)(a) can have no application to an undertaking to the court, even though in the prescribed form and even if it is filed in the court, unless it is filed in proceedings and accepted by the court, in which case it could then be the subject of enforcement under section 112AD and it may also, depending on the seriousness of it, come within section 112AP(1)(b). It would be inconsistent with the intention of the Part for a breach of an undertaking, which, no matter how serious the matter, cannot be the subject of a complaint under Sec112AD, to constitute a contempt under Sec 112AP(1)(a).

1. For those reasons the order will be:

1. The application is dismissed.