Kelleher and Anderson (No. 3)

In the Family Court of Australia at Melbourne, Ms Anderson (the applicant wife) brought an application for contempt against Mr Kelleher (the respondent husband). The alleged contempt was based on the husband's failure to attend with the children during a contact period on 11 April 2007, in alleged breach of an undertaking given on 5 April 2007. Mrs Kelleher was joined as a third party.

The primary legal issue before the court was whether a breach of a private undertaking between solicitors, not formally given to the court or made under oath, could constitute contempt of court under section 112AP of the *Family Law Act 1975*. The court was required to determine if such an undertaking fell within the scope of "an order under this Act" for the purposes of establishing contempt.

Justice Young, applying the reasoning in *Elia v Elia*, held that a breach of a private undertaking between solicitors does not constitute contempt under section 112AP of the *Family Law Act 1975*, as it does not amount to a contravention of an order made by the court. Consequently, the contempt application was dismissed. The court also reserved costs, noting that the application was misconceived and that an order for costs would be just, with the quantum to be determined by taxation and stayed pending the resolution of financial proceedings.