Hinde and Hinde - [2010] FamCA 583

FAMILY COURT OF AUSTRALIA

HINDE & HINDE

[2010] FamCA 583

FAMILY LAW – CONTEMPT – Allegations of six counts of contempt – Whether they constitute a flagrant challenge to the authority of the Court – Where husband mortgaged and attempted to sell property from the matrimonial asset pool – Where husband failed to provide entry to the safe – Where husband failed to pay mortgage instalments and indemnify the wife – Where there is insufficient evidence to prove the husband failed to pay outgoings – Where husband failed to provide certificate of insurance – Where husband failed to maintain property in fit and proper state for sale – Five of the six counts of contempt proven beyond reasonable doubt

APPLICANT:

Ms Hinde

RESPONDENT:

Mr Hinde

FILE NUMBER:

BRC

5920

2008

DATE DELIVERED:

9 July 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

25 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Grimshaw of Counsel appearing for the Applicant Wife

SOLICITORS FOR THE APPLICANT:

Hogan Stanton Lawyers

COUNSEL FOR THE RESPONDENT:

The Respondent Husband appearing in person

Orders

WHEREAS the Court has found MR HINDE of [address] in the State of Queensland has contravened an Order under the Family LawAct namely the Order of Carmody J of 11 December 2006 by:
i.contrary to the terms of Order 4 contracting to sell his property at … Tasmania and such conduct involved a flagrant challenge to the authority of the Court and thereby constituted a contempt;
AND has contravened an order under the Family Law Act namely the Order of Carmody J of 4 March 2008:
ii.in that contrary to Order 2(c)(i) of such order he failed to maintain the property located at A, Queensland in a fit and proper state for sale and such conduct involved a flagrant challenge to the authority of the Court and thereby constituted a contempt.
The Respondent, MR HINDE, is sentenced to a term of four (4) months imprisonment on each count, such terms of imprisonment to be served concurrently.
In the event the Respondent is able to pay the Applicant’s costs and outgoings in accordance with the declaration of Carmody J of 25 June 2008 together with interest accrued since that time and any additional costs as may be ordered arising out of the current proceedings, the Respondent may be released forthwith after serving a term of two (2) months imprisonment.
A Certificate from a Registrar of this Court that the said amount has been paid shall be deemed sufficient proof to order the release from further imprisonment.
WHEREAS the Court has found the Respondent has contravened an Order under the Family Law Act namely the Order of 11 December 2006 by:
i.contrary to the terms of Order 8(b) of the said Order the Respondent refused to disclose the combination of the safe on the premises located at A in the State of Queensland and such conduct involved a flagrant challenge to the authority of the Court.
The Respondent,

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FamCA 583
Decision Date: 9 July 2010

CaseChat Overview and Summary

In the matter of *Hinde and Hinde*, Barry J of the Family Court of Australia considered allegations of contempt of court brought by the Applicant against the Respondent, Mr Hinde. The dispute concerned Mr Hinde's alleged contravention of orders previously made by Carmody J on 11 December 2006 and 4 March 2008, which were related to property division and disclosure obligations.

The court was required to determine whether Mr Hinde had contravened specific orders by contracting to sell property in Tasmania contrary to an earlier order, failing to maintain a property in Queensland in a fit state for sale, and refusing to disclose the combination of a safe located in Queensland. The court also had to consider the appropriate penalty for any proven contraventions, including the possibility of imprisonment.

Barry J found that Mr Hinde had indeed contravened the orders of Carmody J. The court reasoned that his actions, including selling property contrary to an order and failing to maintain another property, constituted a "flagrant challenge to the authority of the Court" and therefore amounted to contempt. Similarly, his refusal to disclose the safe combination was also found to be a flagrant challenge to the court's authority.

Consequently, Mr Hinde was sentenced to four months' imprisonment on each of the first two counts of contempt, to be served concurrently. A further one month's imprisonment was imposed, also to be served concurrently, for refusing to disclose the safe combination. However, the court provided an avenue for Mr Hinde's release after serving two months of his sentence, conditional upon his payment of the Applicant's costs and outgoings as declared by Carmody J, along with accrued interest and any additional costs. Sentencing for two other alleged breaches was adjourned for twelve months, and one count of contempt was dismissed.

Orders

Orders of the court

WHEREAS the Court has found MR HINDE of [address] in the State of Queensland has contravened an Order under the Family Law Act namely the Order of Carmody J of 11 December 2006 by:

i. contrary to the terms of Order 4 contracting to sell his property at … Tasmania and such conduct involved a flagrant challenge to the authority of the Court and thereby constituted a contempt;

AND has contravened an order under the Family Law Act namely the Order of Carmody J of 4 March 2008:

ii. in that contrary to Order 2(c)(i) of such order he failed to maintain the property located at A, Queensland in a fit and proper state for sale and such conduct involved a flagrant challenge to the authority of the Court and thereby constituted a contempt.

The Respondent, MR HINDE, is sentenced to a term of four (4) months imprisonment on each count, such terms of imprisonment to be served concurrently.

In the event the Respondent is able to pay the Applicant’s costs and outgoings in accordance with the declaration of Carmody J of 25 June 2008 together with interest accrued since that time and any additional costs as may be ordered arising out of the current proceedings, the Respondent may be released forthwith after serving a term of two (2) months imprisonment.

A Certificate from a Registrar of this Court that the said amount has been paid shall be deemed sufficient proof to order the release from further imprisonment.

WHEREAS the Court has found the Respondent has contravened an Order under the Family Law Act namely the Order of 11 December 2006 by:

i. contrary to the terms of Order 8(b) of the said Order the Respondent refused to disclose the combination of the safe on the premises located at A in the State of Queensland and such conduct involved a flagrant challenge to the authority of the Court.

The Respondent, MR HINDE, is sentenced to a term of one (1) month’s imprisonment on such count, such term of imprisonment to be served concurrently with other terms of imprisonment imposed on this date pursuant to paragraph 1 hereof.

Sentence in relation to a breach of Order 3(a) of the Order made 4 March 2008 (count 3) and breach of Order 3(c) of the Order made 4 March 2008 is adjourned for a period of twelve (12) months.

Count 4 of the Application for Contempt filed 4 December 2009 is dismissed.

Background

Background to the litigation

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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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