Kendling and Kendling and Anor (No. 2) - [2008] FamCA 351

FAMILY COURT OF AUSTRALIA

KENDLING & KENDLING AND ANOR (NO. 2)

[2008] FamCA 351

FAMILY LAW – CONTEMPT – sentencing – seriousness of offence – purging – husband’s health

Family Law Act 1975 s 112AP

DAA v DAI (2005) FLC 93-215
PDM & JEM (2006) FLC 93-291
Australian Meat Industry Employees Union v Minchinbury Station Pty Ltd (1986) 66 ALR 557
Tate v Tate (No. 3) (2002) FLC 93-107
Australian Securities & Investment Commission v Michalik 52 ACSR115
LGM & CAM (Contempt) (No 2) (2008) FLC 93-355
Rutherford and the Marshal of the Family Court of Australia (1999) FLC 92-866
Harris v Harris [2002] 1 All ER185
S & S (Unreported, 22 July 1996) (per Fogarty, Baker & Rowlands)
N & N (Unreported 7 May 1993) (Coleman J)

APPLICANT:

Mrs Kendling

RESPONDENT:

Mr Kendling

2^nd RESPONDENT:

B Ltd

FILE NUMBER:

SYF

2903

2003

DATE DELIVERED:

21 May 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 April 2008 & 16 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC & Mr Beaumont

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

By court order the names of counsel and solicitor for the respondents have been suppressed

ORDERS

By consent, the husband and B Ltd pay the wife’s costs of these proceedings, commenced by the wife’s application filed 26 February 2008, on an indemnity basis, as agreed or assessed.
In respect of the contempt of orders of 27 September 2007, committed by the husband, the husband is to be committed to prison to be held in prison, for a period of four (4) months, such sentence to commence immediately.
In respect of the contempt of the orders of 4 July 2007, the husband is to be committed to prison, to be held in prison for a period of two (2) months, such sentence to commence immediately.
The two terms of imprisonment are to be served concurrently.
A warrant of commitment reflecting the order of this Court issue forthwith.
The husband can apply for a reduction of the period referred to in Order 2 from four (4) months to three (3) months and a reduction in the period referred to in Order 3 from two (2) months to one (1) month in the event that the husband pays or causes to be paid to the solicitors for the wife an amount of $133,000.00, which sum shall be held by them upon the terms referred to in Order 8.
In respect of the contempt of orders of 27 September 2007 committed by B Ltd, no penalty is imposed.
In the event that the husband pays or causes to be paid to the wife’s solicitors the sum referred to in Order 6.2, the solicitors for the wife will invest those funds in a controlled moneys account and the solicitors for the wife and the parties are restrained from further dealing with those funds unless there is written agreement between the parties or further court order.
I note…

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: [2008] FamCA 351
Decision Date: 21 May 2008

CaseChat Overview and Summary

In *Kendling and Kendling and Anor (No. 2)*, Watts J of the Family Court of Australia considered applications concerning contempt of court orders. The proceedings involved the husband and a company, B Ltd, as respondents, and the wife as the applicant. The core of the dispute revolved around the husband's and B Ltd's alleged breaches of previous court orders.

The court was required to determine whether the husband and B Ltd had committed contempt of court, and if so, what penalties should be imposed. Specifically, the court had to consider contempt of orders made on 27 September 2007 and 4 July 2007. Additionally, the court needed to address the wife's costs and the potential for disciplinary action against the husband's legal representatives.

Watts J found the husband in contempt of the orders of 27 September 2007 and 4 July 2007, imposing concurrent prison sentences of four months and two months respectively, commencing immediately. The court also offered the husband a reduction in these sentences by a total of two months if he paid $133,000 to the wife's solicitors, to be held in a controlled moneys account to secure payment of the wife's costs. No penalty was imposed on B Ltd for its contempt. The court also scheduled a further hearing to allow the husband's legal representatives to make submissions regarding potential disciplinary action.

Orders

Orders of the court

By consent, the husband and B Ltd pay the wife’s costs of these proceedings, commenced by the wife’s application filed 26 February 2008, on an indemnity basis, as agreed or assessed.

In respect of the contempt of orders of 27 September 2007, committed by the husband, the husband is to be committed to prison to be held in prison, for a period of four (4) months, such sentence to commence immediately.

In respect of the contempt of the orders of 4 July 2007, the husband is to be committed to prison, to be held in prison for a period of two (2) months, such sentence to commence immediately.

The two terms of imprisonment are to be served concurrently.

A warrant of commitment reflecting the order of this Court issue forthwith.

The husband can apply for a reduction of the period referred to in Order 2 from four (4) months to three (3) months and a reduction in the period referred to in Order 3 from two (2) months to one (1) month in the event that the husband pays or causes to be paid to the solicitors for the wife an amount of $133,000.00, which sum shall be held by them upon the terms referred to in Order 8.

In respect of the contempt of orders of 27 September 2007 committed by B Ltd, no penalty is imposed.

In the event that the husband pays or causes to be paid to the wife’s solicitors the sum referred to in Order 6.2, the solicitors for the wife will invest those funds in a controlled moneys account and the solicitors for the wife and the parties are restrained from further dealing with those funds unless there is written agreement between the parties or further court order.

I note the intention of placing the monies in the controlled moneys account, referred to in Order 8, is to secure payment to the wife of her costs pursuant to Order 1.

10.

The husband have liberty to apply on 48 hours notice, pursuant to the provisions of s.112AP(7) Family Law Act for the partial reduction in his sentences as referred to in Order 6.

11.

There be a further listing before me on 4 July 2008 at 10am for the purposes of giving Solicitor A, Solicitor B, Counsel C and Counsel D for the husband an opportunity to make submissions as to why I should not send my findings to the Office of the Legal Services Commissioner for consideration as to whether or not disciplinary action should be taken against all or any of them.

12.

Any affidavit evidence upon which Solicitor A, Solicitor B, Counsel C or Counsel D for the husband wish to rely for the purposes of their submissions on 4 July 2008 is to be filed in the Sydney Registry by 4pm 19 June 2008.

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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