Kelleher and Anderson (No. 3)

[2007] FamCA 724

FAMILY COURT OF AUSTRALIA

KELLEHER & ANDERSON (NO. 3) [2007] FamCA 724

FAMILY LAW - ORDERS - Contravention - Breach of undertaking - Application dismissed

Family Law Act 1975 (Cth)

APPLICANT: MS ANDERSON

RESPONDENT: MR KELLEHER

THIRD PARTY: MRS KELLEHER

FILE NUMBER: MLF 2734 of 2006

DATE DELIVERED: 12 JULY 2007

PLACE DELIVERED: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 12 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR LEVINE

SOLICITOR FOR THE APPLICANT: ISSAC BROTT & COMPANY

COUNSEL FOR THE RESPONDENT: MR THOMPSON

SOLICITOR FOR THE RESPONDENT: RICKARDS LEGAL

COUNSEL FOR THE THIRD PARTY: MR FARMER

SOLICITOR FOR THE THIRD PARY: STEPHEN FARMER & ASSOCIATES

ORDERS

1. THAT the wife’s legal practitioners have leave to withdraw the Form 18 contravention application filed 21 June 2007.

2. THAT within twenty-one (21) days the solicitors for the Third Party make, file and serve a further and better affidavit of documents and in particular identify and disclose all documents of and related to:

   §an application for a Centrelink Seniors Card; and

   §any draft or executed binding financial agreement as between this Third Party and her former husband; and

   §any other document within the power, possession or control of the Third Party that is relevant to what was sought in the subpoena issued 6 March 2007.

3. THAT the costs of and incidental to the appearance this day in the Judicial Duty List be reserved.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2734 of 2006

MS ANDERSON

Applicant

And

MR KELLEHER

Respondent

And

MRS KELLEHER

Third Party

REASONS FOR JUDGMENT

1. On 21 June 2007, the wife's solicitors, Issac Brott and Co, filed on her instructions an application for contempt on a Form 19.  The alleged contempt was that:

   The husband, in deliberate breach of the undertaking made 5 April 2007, during a contact period with the children, was not in attendance with them from 8 am-7.30 pm inclusive on 11 April 2007.

2. In support of that contempt application the wife caused to be filed an affidavit on 21 June 2007 upon which she relies.  That document is a substantial affidavit of 15 paragraphs and exhibits various court orders and correspondence of and related to the previous orders and proceedings on the children and parenting matters.  I have read that affidavit, including the research undertaken by or on behalf of the wife, to establish the husband's whereabouts on 11 April 2007.

3. It does appear from the document that the husband was interstate on that day.  Insofar as the contempt application is before the court the opening of the wife's counsel, Mr Levine, was directed to the issue that the husband should be dealt with for a breach of his undertaking.  Mr Thompson, who appeared for the husband, opposed that course of action.

4. As it is a contempt application it is essential that matters be dealt with strictly in accordance with the provisions of the Family Law Act1975 and to the appropriate standard of proof.  Section 112AP is that section of the Act which deals with contempt.  It provides that:

   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.

5. The prime requisite is that it needs to be shown that there is a breach or contravention "of an order under this Act".  The basis upon which this contempt application was proffered to the court was that there was a breach of an undertaking.  When the undertaking was examined it was clear, and indeed Mr Levine was forthright in indicating to the court that it was an undertaking not given to the court under oath or formally provided to the court through counsel, but on the basis of a private undertaking as between solicitors.

6. For the contempt to be proved, in my opinion it is essential that it be shown and proved that there was a breach of an order.  That is not the case on these facts.  The Act is self-explanatory.  There are a number of cases, the most recent of which is Elia v Elia (2000) FLC 93-058, where the courts have considered whether or not an undertaking can be the basis for an alleged breach and therefore a successful prosecution under section 112AP of the Act.

7. I have carefully read the short but reasoned judgment of Mullane J and I wholly agree with his reasoning and conclusions.  A breach of an undertaking cannot be contempt for the purposes of section 112AP.  The logic and reasons explaining that rationale are clearly explained in paragraphs 5 and 6 of the judgment, and I endorse and adopt those reasons.  On that basis the contempt application filed on behalf of the wife on 21 June 2007, and being court document 44 in the index, is dismissed.

8. I have now, arising out of the application to dismiss the contempt application, a costs submission made by Mr Thompson on behalf of his client.  Mr Thompson has provided the court with a copy of his written submissions which I will have marked exhibit “H1”, and they can remain on the file as they are likely to be relevant when the costs are hereafter quantified by taxation. 

9. I have specific regard to section 117(1) and (2) of the Family Law Act and, in particular, subsection (2A) thereof, and all of the various factors of and related to the appropriate exercise of discretion for costs.  The overwhelming requirement is that any costs order be just.  In this case I find it is absolutely clear and proper that there should be a costs order.

10. The application should never ever have been brought in the form that it was placed before the court.  It was wholly wrong and misconceived.  Indeed there would be an injustice if costs were not ordered.  I therefore will order costs.  I am particularly mindful of the alleged financial inequity of the parties and of their circumstances.  I, however, make no findings upon such allegations.  That is a matter for another court at another time, date and place.

11. I am going to make a costs order as to this issue now before me but I will accede to the requests of Mr Levine that the costs be as taxed and that the payment of any quantum, being the appropriate tax sum, be stayed pending the outcome of that taxation process and generally of the resolution or determination of all financial proceedings or other proceedings before this court.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: 
Date: 24 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as KELLEHER & ANDERSON