FAN & GOH

[2016] FCCA 1880

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAN & GOH [2016] FCCA 1880

Catchwords:
FAMILY LAW – Property – contempt.

Legislation:

Family Law Act 1975, ss.112AD, 112AP
Family Law Rules 2004, s.19.02

Cases cited:

Bande & Cade 45 Fam LR 376

Ganem & Ganem (No.2) [2013] FamCA 257

Ibbotson & Wincen 18 Fam LR 164

In the Marriage of English [1986] FLC 91
Mede & Mede [2006] FLC 93

Applicant: MR FAN

Respondent: MS GOH

File Number: SYC 7129 of 2013

Judgment of: Judge Henderson

Hearing date: 15 June 2016

Date of Last Submission: 15 June 2016

Delivered at: Sydney

Delivered on: 16 June 2016

REPRESENTATION

Counsel for the Applicant: Mr Ford

Solicitors for the Applicant: Juris Cor Legal

Solicitors for the Respondent: Zhang Shijing Lawyers

ORDERS

THE COURT FINDS:

1. The wife MS GOH to be guilty of contempt of Order 1 of the Orders made by Judge Walker on 19 August 2014.

2. The wife MS GOH to be guilty of contempt of Order 11 of the Orders made by Judge Walker on 3 March 2014.

THE COURT ORDERS THAT:

1. The matter is listed into a call over on 3 March 2017 at 9:30am for the allocation of hearing dates.

2. By way of sentence, the wife is to deliver to the husband’s solicitors within 28 days, being no later than COB 13 July 2016, a Samsung Notebook also known as a Galaxy Computer and a hardcover book documenting the daily transactions of (business omitted) which documents were referred to in orders in this Court on 19 August 2014.

3. In the event the husband proposes to sell his current business he is to give the wife’s solicitors 28 days’ notice in writing.

THE COURT NOTES THAT:

1. The Court will not deal with any more contempt or contravention applications in this matter.

2. The evidence from the wife’s filed contempt applications will form part of the evidence at the final hearing of the matter.

IT IS NOTED that publication of this judgment under the pseudonym Fan & Goh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7129 of 2013

MR FAN

Applicant

And

MS GOH

Respondent

REASONS FOR JUDGMENT

1. The matter of Goh & Fan is a contempt application brought by the husband in an application filed 25 November 2014. The three counts of contempt he alleges against the wife are as follows.

2. Count one, the respondent, Ms Goh, failed to deliver to the husband’s solicitor’s office located at suite 101, level 10, 420 Pitt Street, Sydney, one Samsung Notebook in contempt of order 1 of the orders made by Judge Walker in the Federal Circuit Court of Australia on 19 August 2014.

3. Count 2. The respondent to this application for contempt, Ms Goh, failed to deliver to the husband’s solicitor’s office, located at suite 101, level 10, 420 Pitt Street, Sydney, one hardcover notebook document daily transactions for (business omitted) in contempt of order 1 of the orders made by Judge Walker, Federal Circuit Court of Australia, on 19 August 2014.

4. Count 3, on 4 September 2014 the respondent to this application attended (business omitted) business premises and removed cash from the cash register in contempt of order 11 of the orders made by Judge Walker in the Federal Circuit Court of Australia on 3 March 2014.

5. Mr Ford of counsel represented the applicant husband and Mr Zhang, solicitor, the respondent wife.

6. The evidence I read was as follows.

7. For the husband, his affidavit of 25 November 2014 sworn on 11 November 2014

8. Affidavit affidavit of his solicitor, Mr Yu Chen sworn 10 November 2015

9. Affidavit of Mr T, filed 23 February 2014.

10. The husband and his two witnesses were cross-examined.

11. For the husband there were three exhibits.

    a)Exhibit 1 was a map of the shop drawn by Mr T ;

    b)Exhibit 2 paragraphs 1, 2, 3, 4, 7 and the first sentence of paragraph 8 and 12 of the wife’s affidavit filed 25 June 2015; and

    c)Exhibit 3 Police subpoena bundle marked Husband’s tabs 1 to 4.

12. For the wife her affidavit filed 25 June 2016.

13. Her exhibits were:

    a)Exhibit 1 a letter of acknowledgement for receipt of documents delivered to the husband’s solicitor in court on 19 August 2015;

    b)Exhibit 2 photocopy of the first page of a document delivered to the husband’s solicitors on 19 August 2013 in answer to count 2 and in compliance, assertedly, of orders 1 made on 19 August 2014;

    c)Exhibit 3. A request for particulars from the wife’s lawyer in relation to the contempt counts, which particulars were dated 19 February 2015;

    d)Exhibit 4. Letter dated 29 May 2015 requesting further identification of the Samsung Notebook and hardcover notebook referred to in the consent orders entered into on 19 August 2014;

    e)Exhibit 5 is a receipt from (omitted) for a Galaxy Notebook in the husbands name dated 19 January 2014 for a price of $467; and

    f)Exhibit 6 is a drawing by the wife of the shop premises, which document is very similar to husband’s exhibit 3: Mr T’s drawing of the shop premises.

14. The wife pleaded guilty to count 1 of the contempt application in that she said she had failed to deliver the Samsung Notebook specified in the orders of 19 August 2015. Her case being that she could not deliver it, because it was not in her possession.

15. The wife pleaded not guilty to counts 2 and 3.

16. The application is pursuant to section 112AP of the Family Law Act1975 being contempt application. Not a contravention, but contempt. A serious charge indeed.

17. The short chronology is the parties were born in (omitted).

18. The wife came to Australia in 2008, she says, on a temporary visa.

19. The parties commenced cohabitation in (omitted) 2008.

20. The husband owned property at (omitted) prior to the marriage. The parties were married in (omitted) China, on (omitted) 2008.

21. The wife went to China in (omitted) 2010.

22. The parties set up a partnership business known as (business omitted), which was a business whereby (business omitted) this being a (business omitted).

23. Parties separated on 6 January 2012.

24. Various orders are made by Judge Walker on 3 March 2014 for disclosure.

25. Parties attend a conference in August 2014. This conference could not go ahead, the Registrar notes because of lack of disclosure by the wife .

26. A directions hearing was conducted before Judge Walker on 19 August 2014 when the orders are made for the return of certain items which I will read out shortly and the matter is before me today.

27. The husband brought a contempt application due to the wife’s failure to deliver items to him as set out in the consent orders of 19 August 2014 and a breach of injunctive orders made 3 March 2104. This has resulted in the matter not progressing to be heard on the substantive issues of property settlement. However that is a choice that the husband made.

28. The orders that are asserted to have been breached are as follows.

29. In relation to count 3 this is a breach of order 11 made 3 March 2014, which order is that the husband shall give access to the wife to the business premises of (business omitted), subject to the wife being restrained until further order from doing any act or thing, or to remove any of the business assets, including cash under cash register, from the business premises of (business omitted).

30. It is fairly clear to me from reading that order there was some concern of the husband in March 2014 accepted by the Court that this was an activity the wife may engage in namely taking cash from the cash register and under the cash register at the business premises.

31. The remaining 2 counts relate to breaches of consent orders made on 19 August 2014, which relate to the failure to deliver up items to the husband and are as follows.

32. That by 5 pm today, 19 August 2014, the wife return the four A-sized workbooks, one Samsung Notebook and one hardcover notebook documenting daily transactions for (business omitted) to the husband’s solicitor’s office located at suite 101, level 10, 420 Pitt Street, Sydney.

33. Now, it is agreed the four A-sized workbooks were returned by the wife on 19 August 2014.

34. What is in dispute is return of the Samsung Notebook and a document called one hardcover notebook documenting daily transactions for (business omitted).

35. As this is an application under 112AP of the Family Law Act 1975, for contempt rule 19.02 of the Family Law Rules 2004 applies to how matters in relation to contempt must be dealt with. At the commencement of these proceedings, I asked the wife to stand and I read out the charges to her. She pleaded not guilty to all three charges. That plea changed on the first day of the hearing where she pleaded guilty to the first change but maintained her plea of not guilty to charges 2 and 3.

36. I have heard all the evidence which is reading all the affidavit material and exhibits, heard all of the witnesses in this matter being cross-examined and examined-in-chief. I gave the wife’s lawyer liberty to lead evidence from their client at the commencement of her evidence, as her affidavit told me very little of relevance to these charges.

37. Decisions of Ganem & Ganem (No.2) [2013] FamCA 257 and Ibbotson & Wincen 18 Fam LR 164 are pertinent to these applications. The decision of Ganem & Ganem (No.2) [2013] FamCA 257 was a contempt application where the judge ultimately held that he did not find any of the charges for contempt had been made out. However, his Honour very helpfully set out the processes, procedures and much of the relevant case law applicable in such matters. His Honour says at the commencement of his judgment, paragraph 2:

    Section 112AP relevantly provides:

    (1) Subject to subsection (1A), this section applies to a contempt of 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.

38. 112AP(b) is the relevant count here. The husband’s case is that these failures to comply with orders of this court are not a contravention but are a flagrant challenge to the authority of the court. That is what the husband is seeking to establish today.

39. Contempt applications, as his Honour says at paragraph 10 of his most helpful judgment, are criminal proceedings under 112AP and accordingly, each element of the charge must be proven beyond reasonable doubt. There are four elements to a contempt application. And each of those elements must be proven beyond reasonable doubt. The first three involve the acts and the intentions of the respondent. The fourth is a finding to be made by the trial judge.

40. The elements are these. The respondent knew the terms of the order. That is the decision of Mede & Mede [2006] FLC 93 to 267.

41. Secondly that the respondent deliberately did an act. The act must be wilful and deliberate, as opposed to accidental or inadvertent. This is the decision of In the Marriage of English [1986] FLC 91 to 729. The act must be intentional.

42. His Honour says this does not mean I have to find that the respondent intended the act to be in breach of the orders but that they intended to carry out or do the act or not do the act

43. Thirdly the act must involve a flagrant challenge to the authority of the court as is set out in Bande & Cade 45 Fam LR 376. The Full Court said in that decision:

    The concept of a flagrant challenge involves conduct of an exceptional, striking or repeated nature.

44. Ibbotson & Wincen 18 Fam LR 164, is another decision I have been referred to and is also helpful. In that decision Fogarty, Baker and McGovern JJ, say:

    The Flagrant challenge is intended to underline the exceptional or striking nature of the contravention in question, and thus differentiate it from what might be described as the general run of breaches which are intended to be deal with under section 1120D. It is a question of fact and degree whether the stringent terms of the section are satisfied.

45. In Ibbotson & Wincen 18 Fam LR 164 their Honours went on to state that it is usually contemplated that parties will be, if they fail to comply with court orders, challenged under 112AD for a contravention. 112AP applications for contempt are far more serious and are exceptional and fall into the exceptional category of breaches of court orders.

46. In Ibbotson & Wincen 18 Fam LR 164 their Honours cite the decision of In the Marriage of G, again a Full Court decision at  7 Fam LR 267:

    What is in issue is to ensure the proper functioning of the mechanisms provided by the Family Law Act for the revolution of family contact. These mechanisms have as their guiding principles the protection of the warfare of children. If the court is not seen as effective in this function it is difficult to bring a case before the court or to secure compliance with these orders, and this applies to property and parenting.

    People will be tempted to turn away from the legal system and take what they want by whatever means are open to them, including force. If individual instances of defiance are ignored then the effectiveness of the whole system will be eroded, and the court’s power to protect a weaker party against an oppression will be diminished.

47. In that particular case her Honour is referring to a father who kept a child away from a parent overseas for many months and he was jailed for six months.

48. My obligation under Rule 21.08 in a contempt is to inform the respondent of the allegations and seek a plea. This was done. Hear the evidence in support of the allegations. This was done over two days. Ask the respondent to respond to the allegation. Then hear evidence from the respondent in answer to the charges. This was done. Finally to determine the case.

49. What is the evidence I heard. I am satisfied the wife knew of the existence of the orders a contempt of which she has been charged. The orders of 19 August 2014 were consent orders. The respondent was represented by a solicitor on that occasion. The respondent was represented by Mr Lam, who is a Mandarin speaking solicitor and I am satisfied she is well aware of the contents of the consent order. Her case is I have complied with that order as I have handed over the hardcover notebook and I am therefore not guilty of contempt. Clearly she knew of the existence of that order and what she was to do.

50. I am satisfied she was and is aware of the injunctive orders made in March 2014. The respondent was represented at that time again by a Mandarin speaking solicitor and they had been in existence for some time when it is alleged in September 2014 she breached those order.

51. I find I have accorded the respondent procedural fairness as I am required to under the Act. This is a contempt application the standard of proof is beyond reasonable doubt. A contempt is a discretionary matter and only to be used sparingly.

52. Looking at the husband’s evidence. It is the husband who has asserted the wife has failed to comply with the order made 19 August 2014 in that she has failed to deliver up the hardcover notebook recording the daily transactions of (business omitted). The wife asserts she has delivered the book in that she delivered all the books she removed from the (business omitted) premises on 18 August 2014, including, she says, the very book in question. The books she delivered up are the only books she said she had from the business. The respondent delivered the four A4 folders. There is no issue about that or that she delivered up 5 books in total. The other book, as she described it, was a smaller book or notebook and she says she has delivered this to him and she does not know of the hardcover book the husband says she still has. The wife says she delivered to the husband a book, the photocopied front page of which is her exhibit 2.

53. These orders were consent orders. The order speaks of a hardcover notebook. The wife’s oral evidence was clear in that she said she delivered 5 books and these are the only books she took from the business premises. However, in her oral evidence she said she did not really know whether the book she delivered to her lawyers to deliver to the husband in compliance with the order made 19 August 2014 was a hardcover or a softcover. The respondent repeated this evidence about three or four times namely that she now does not know whether the book had a soft or hard cover. I have not seen the book she produced to the husband and I do not know either.

54. This being her evidence the wife cannot assert she has complied with the order. The order is clear a hardcover book was to be delivered and the wife cannot say she did so. To find a contempt I would need to be satisfied that the wife acted wilfully and in flagrant disregard of the court orders. It is clear she has contravened the order as the particular book has not been delivered. Is that sufficient to find a contempt?

55. In the decision of Ibbotson & Wincen 18 Fam LR 164, their Honours say:

    The use of the term flagrant challenge to the authority of the court is intended to underline the exceptional or striking nature of the contravention in question, and thus to differentiate from what is described as the general run of breaches, which are intended to be dealt with under section 112AD, the contravention section.

56. One of the essential elements for me in this matter would have been the evidence of Ms A, from whom the wife arrested the five books at (business omitted). The husband was not involved in that melee and was not present at that time. The removal of these documents appear to have occurred between the wife and Ms A, who was an employee at the shop.

57. I accept Ms A is overseas and could not give evidence in court personally however she could have perhaps have done so by way of telephone link-up. The matter has been listed for trial for about nine months and yet there is no affidavit filed by Ms A either. Ms A’s evidence may well have supported the husband’s case or it may not have and I do not know. There is no evidence at all from Ms A, the very person from whom it is alleged these five books were taken from. Ms A’s evidence is quite vital to my accepting that the wife took this particular book at this particular time or took the book at all.

58. Going to count 3, the removal of the cash. The wife’s evidence was unconvincing, even allowing for the translation and the difficulty with translator and I will say that the translator in this particular case was excellent. Her translation was almost seamless. She was very proficient and expert in what she did. The wife changed her story at various times about this particular day on 4 September 2014, when she entered (business omitted). The wife said in oral evidence she came to the shop to get her husband to sign a tax form and a tax declaration form. Nowhere in her affidavit evidence was that mentioned. This only came out in oral examination.

59. Then, a little later in her oral evidence, she said she went there to get money from him. It is clear to me from her evidence and demeanour that the wife went to the premises to get money from the husband. This same evidence is in the police records of the event namely that this was a financial dispute between she and her husband.

60. I am certain the wife and her husband had a serious fight at the shop on that day. The wife agreed she was throwing boxes at him, that he was attempting to grab scissors off her. The wife says she threw boxes at him because he was trying to hit her. That allegation has never been raised by the wife in her affidavit material or any time prior to her cross examination.

61. The wife continued before being stopped to say that he was always hitting her during the marriage; that’s how he dealt with her. This alleged behaviour has never been raised by the wife in her material. The wife said that when she arrived at the shop on 4 September there were some customers there who she knew and she spoke to her known customers and had a chat with them for a little while.

62. As her evidence progressed about the events of that particular time and she and her husband’s actions Mr Ford asked her if she observed customers leaving the shop as the fight escalated. The husband’s case is that when the fight began customers left the shop and that when it became heated and boxes were being thrown around, all the customers left the shop.

1. Upon being asked that question and it being expertly translated the wife immediately without hesitation gave her answer in mandarin to the translator. There was no hesitation or demur. The translation was given speedily to the Court and it was that there were no customers in the shop. I do not speak or understand Mandarin but I observed the wife’s speedy and quick answer without hesitation to the translator which was in stark contrast to other answers where she did understandably hesitate. The translator immediately translated what the wife said. I heard the translation clearly and the manner by which it was done. There was no hesitation, there was no query, there was no looking as if not to be sure about what the answer was by the wife from the translator. When this was put to the wife by Mr Ford:

   Well, what is it? You told us there were customers in the shop, and then when you had the fight there were no customers.

2. The wife tried to imply that the translator got it wrong. Her attempt to blame the translator for this inconsistency was unconvincing, as I observed how she gave her answer. It was quick as a flash, it fell straight out of her mouth, as did the translation of her response.

3. The wife ultimately agreed she picked up scissors at the shop on this day. When it was first put to her:

   Did you pick up scissors on this day?

4. Her answer was:

   Well, I make (business omitted). I have to pick up scissors.

5. Ultimately, after much questioning, the wife admitted she was not at the shop on 4 September to make her (omitted). Ultimately, she agreed she did pick up the scissors but it took her some time to make that admission. I find she did attempt to destroy a bolt of fabric and that she and her husband engaged in an unseemly fight in front of members of the public who were in the shop on that day. I do not accept her evidence that she threw boxes at her husband because he was trying to hurt. The wife made that up on the spot.

6. When I combine the wife’s evidence with the very clear and rather impressive evidence of Mr T, who had absolutely no reason to come to this court other than to tell the truth her story is not accepted by me

7. Mr T rented or had been given some space in the husband’s shop for a period of time to get his (omitted) business going. On both his diagram and the wife’s diagram, he had a clear view of the door, the cash register, the window the corridor, the back of the shop, the side of the shop. There was nothing to obstruct his view of the wife on 4 September 2014 when she entered the shop.

8. Mr T was an impressive witness. He was clear, he made concessions, he said what he didn’t know, what he hadn’t seen, what he didn’t hear. He said he saw the wife enter the shop on 4 September. He was working at his desk. He thought she was just another customer and didn’t take much notice of it. What caused him to become alert to the wife’s presence was he heard the ding of the cash register. He knew Mr Fan was near him and not near the cash register and that caused him to stand up to observe what was happening.

9. He was clear, he observed this woman, who he thought was just a customer at this stage and did not know was Mr Fan’s wife grab money from the cash register and put it in her pocket or her purse. He then saw Mr Fan go to the wife, because no doubt, Mr Fan heard the ding of the cash register as well. Mr T said he saw the wife pick up the scissors and attempt to damage a bolt of cloth that had been left there by a customer for an order to be made. He saw the wife throw boxes around the shop. He himself became frightened as he saw she and her husband, Mr Fan fight.

10. I accept Mr T and the husband’s evidence that the husband called out in English to Mr T “call the police”, which he then did and the police arrived and matters calmed down. Mr T’s evidence corroborates the husband’s evidence entirely. It is inconsistent with the wife’s evidence, although she does say she was near the cash register at the time she says the husband lunged at her.

11. This evidence Mr T gave why he looked up at the wife being the ding of the cash register has the clear air of truth about it. It was an honest and obvious reason for him to look up at a person he initially thought was but a customer.

12. On the basis of this evidence I am that the wife removed cash from the premises of (business omitted) on 3 September 2014, in contravention of the orders made on 3 March 2014.

13. The question for me is were these actions of such sufficient wilfulness, or to use the words in Ibbotson & Wincen 18 Fam LR 164 flagrant challenge, a striking nature, exceptional or striking nature to warrant a contempt? I find they are. The wife’s actions on that occasion were contemplated in the orders and she was well aware she was not to remove cash from the business premises. The order was made to precisely stop the very conduct the wife engaged in. The order is as follows :

    Husband shall give access to the wife to the business premises of (business omitted), subject to the wife be restrained until further order from doing any act or thing or remove any of the business assets, including cash and cash under the cash register.

14. This is exactly what the wife did remove cash from the cash register. That is a flagrant act of disobeying an order of a court and it is wilful, it was intentional and I am satisfied beyond reasonable doubt, after hearing Mr T give evidence, that the wife removed the cash from the register on that day. I am satisfied of each of the elements of the offence beyond reasonable doubt and I find the wife guilty of a contempt of the orders of 3 March 2014, in that she did on 4 September 2014 attend (omitted) business and remove cash from the cash register

15. As to the failure to return the hardcover notebook.

16. The wife gave evidence about the struggle, how she got the books, the five books from Ms A in her oral evidence:

    Where did you take this book from?

17. The wife said:

    Ms A.

    Who is Ms A?---His girlfriend.

    
    
    

    What does Ms A do?---She works at (business omitted). My husband asked Ms A to take my place.

    
    
    

    How did you ask Ms A for the documents?---I told her we need the daily transaction documents.

    
    
    

    How did you get it from Ms A?---I checked the four books and this one –

18. The wife was referring to her exhibit 2 at this stage:

    …in front of Ms A.

    
    
    

    How did you get the books from Ms A?---They were all located on Ms A’s desk, and I checked these books in front of her and took them from her. She said she needed to double-check if she needed any of the documents, and if not I could take them away. Ms A pointed to one book and she said she needed it and I said I would return it the next day. Then Ms A and I both held that book and we were trying to have possession of that book.

19. I take that to mean she and Ms A had a struggle:

    What day did this happen?---On 18 August 2014, one day before the court.

20. The husband thought it was 15 August 2014 ; nothing turns on that:

    What did you take with you on 18 August?---Four other books and this book in front of Ms A.

    
    
    

    On the day of 19 August, who were you with?---My lawyer, James.

    
    
    

    What did you pass to James?---I gave all the books to James, the four big one and the one small one.

    
    
    

    What is the small one? This is the one, wife exhibit 2?---Yes.

21. It is clear the wife and Ms A had a struggle with these books. I accept the husband’s position that the book the wife returned to him was not the book that he sought be retuned under the consent order. The husband did not know the wife had taken the book she returned until it was returned. Mr Chen the husband’s lawyer said so in his affidavit and confirmed same in his oral evidence. The husband was very quick to notify the wife’s lawyers that the book she had returned was not the one specified in the order and the one he wanted.

22. Now, I accept both this hardcover book, as the husband said and the Samsung notebook – the computer – were essential to the husband’s business. The wife would not admit this, said she knew nothing about them, however, she also asserted she and the husband were partners but says she knew nothing about these documents. This again goes to the wife’s lack of credit as a witness of truth.

23. Her signing of the consent orders when her case now is she did not even know of the existence of the Samsung notebook is an extraordinary thing to say. Her lawyer, Mr Lam, is a Mandarin speaker and her feeble attempts in her affidavits to cast some aspersion on him and blame in her signing the consent orders because she didn’t have a translator when he speaks Mandarin and/or because it was late and/or that she was tired and had not eaten do not satisfy me she was unaware of what she agreed to do on 19 August 2014 when the consent orders were made. There is no affidavit filed from Mr Lam to support the wife’s position and that could have easily been obtained and I would be entitled to draw an inference that that non-production of any material from Mr Lam would not have assisted her case.

24. The wife failed to return the hardcover notebook specified in count 2 and has contravened that order however the question is in relation to count 2 is, is this contravention a flagrant challenge to the court’s authority.

25. I found the taking of the cash was a flagrant challenge. It is exceptional and striking. It’s clearly contemplated by the Court in the making of the injunctive order and her condition of entering onto these premises was she not take anything from the premises and she simply did. She also not only took the cash; she took books from his work. Again, she took items that she wasn’t meant to take in the injunctive order and so her taking of the cash is a direct and flagrant disregard of this order.

26. In relation to count 2, the failure to return the hardcover book has caused me much more difficulty. The book to be returned is not well detailed in the order, although I’m not sure how better detailed it could be. There is no evidence from Ms A about what books were on her table and what weren’t on her table when the wife left and I’m not satisfied, in the absence of some evidence from Ms A about what actually happened on that day. I am not satisfied that the wife’s failure to return this particular book was flagrant. The book is poorly described in the order. She did return a book. The book returned was not produced and the very person whose evidence was needed on what was actually taken by the wife on that day was not on affidavit. Although I find the wife has contravened order 1 of orders made 19 August 2014, it does not amount to a contempt in the absence of Ms A’s evidence as I see it.

27. Now, as to count 1, the Samsung notebook, the wife says:

    I couldn’t return it because I didn’t have it in my possession when I signed the consent order.

28. As I said, the wife has failed to call Mr Lam to support her reasons for signing an order to return an item she did not have and I will draw the inference his evidence would not have assisted her. To sign a consent order when you later say you did not have the items the subject of the consent order bespeaks a significant lack of respect for the Court processes and consequences of a failure to comply with orders and I find this too amounts     to a flagrant breach and is a striking challenge to the authority of the court and I find the wife is guilty of contempt on counts 1 and 3 of orders made on 19 August 2014 and 3 March 2014.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 22 July 2016