LGM & CAM

[2006] FamCA 809

[2006] FamCA 809

JFLGMCAM

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 63 of 2005
File No. SYF 3359 of 1997

IN THE MATTER OF:

LGM

Appellant/Wife

- and -

CAM

Respondent/Husband

SUPPLEMENTARY REASONS FOR JUDGMENT

BEFORE:  Holden, Coleman & May JJ
DATEOF HEARING:         By way of written submissions
DATE OF JUDGMENT:     25^th day of August 2006

SUBMISSIONS RECEIVED FROM:      

Mr Cook of Counsel, (instructed by D. Riggio & Associates, Suite 27, Level 3, 301 Castlereagh Street, Sydney NSW  2000) on behalf of the appellant wife.

Mr Fagan of Senior Counsel with Mr Bedrossian of Counsel, (instructed by Etheringtons Solicitors, Ground Floor, 153 Walker Street, North Sydney NSW  2059) on behalf of the respondent husband.

Name of Appeal  LGM & CAM
Appeal Number  EA 63/2005
Date of Appeal hearing                   By way of written submissions
Date of Judgment  25^th day of August 2006
Coram  Holden, Coleman, May JJ

Catchwords:   FAMILY LAW – APPEAL – Determination of the future course of the respondent’s application for contempt, the orders made under that application having been successfully appealed – Application for contempt dismissed as application destined to fail in the light of majority's reasons for allowing substantive appeal.

FAMILY LAW – APPEAL – From decision of Family Court judge ordering the appellant to pay the respondent’s costs of the contempt proceedings on an indemnity basis – Whether the trial Judge’s order for costs turned wholly or so substantially upon the issue of the appellant having been ‘wholly unsuccessful’, as to deny the costs order a foundation within the ambit of a reasonable exercise of discretion by virtue of the appellant ceasing to have been ‘wholly unsuccessful’ by reason of her appeal being allowed – Trial Judge’s decision was reliant upon the appellant’s conduct, which, in the circumstances of this case, justified an order for costs being made against her, notwithstanding that the outcome of the appeal was to render the appellant wholly successful – In the event that the trial Judge's conclusion could not stand in the light of the outcome of the appeal, Full Court would re-exercise trial Judge's discretion to make the same order for costs of the proceedings at first instance.

FAMILY LAW – APPEAL – COSTS – Whether to make a costs order in relation to the appeal against the respondent – Respondent fully justified in resisting appeal – Issue of complexity in the appeal – Certificate sought by, and granted to, the respondent – Liberty to appellant to seek costs certificate.

Appeal against substantive orders allowed

Appeal against order for costs dismissed

Costs certificate ordered for respondent and liberty to appellant to seek a certificate

1. On 6 June 2006 the Court published its reasons for judgment in this matter.  By a majority, the Court concluded that the wife’s appeal, against Cohen J’s orders of 30 May 2005 sentencing the appellant for a term of imprisonment of four months for each of two contempt applications, should be allowed.

2. As the Court’s reasons for judgment of the majority made clear, the future course of the applications against the appellant remain for consideration, as does the wife’s appeal against the order for costs made by the trial Judge on 30 May 2005.

3. In order to resolve those matters the Court invited written submissions from the parties.  Written submissions on behalf of the respondent were received on 4 July 2006 and from the appellant on 5 July 2006.  Written submissions in reply on behalf of the respondent were filed 2 August 2006.  On 10 August 2006 written submissions in reply were filed on behalf of the appellant.

THE FUTURE COURSE OF THE CONTEMPT APPLICATIONS AGAINST THE WIFE

1. The matter ‘having now been determined against him on appeal by the Full Court’, Senior Counsel for the husband did not submit that it was ‘appropriate’ for the applications brought by him, which gave rise to the orders against which the wife successfully appealed, to be remitted to a single judge for re-hearing.  Accordingly the husband did not ‘object to a course whereby the Full Court gives effect to the terms of its judgment of 6 June 2006 by dismissing the Respondent’s Amended Application for Contempt (as filed on 23 September 2004)’ (Respondent’s Written Submissions, paragraph 2). 

2. Not surprisingly, counsel for the wife did not disagree with the stance advanced on behalf of the husband.  Whilst in the circumstances it is thus unnecessary for us to express any views, having regard to the reasons which the majority advanced for allowing the wife’s appeal, it is difficult to see on what possible basis the applications could succeed if they were remitted for rehearing by a single judge.  Accordingly, we will make an order allowing the wife’s appeal and dismissing the applications which gave rise to the orders against which the wife has successfully appealed. 

3. It remains then to consider the more difficult issue of costs.  There are two cost issues which require consideration, the first being the wife’s appeal against the order for costs made against her by the trial Judge, the second being the appropriate order in relation to the costs of the appeal.

THE WIFE’S APPEAL AGAINST THE ORDERS FOR COSTS OF THE PROCEEDINGS BEFORE THE TRIAL JUDGE.

1. In a separate judgment in relation to the issue, the trial Judge gave reasons for his conclusion that the wife should pay the husband’s costs of the contempt proceedings on an indemnity basis, she ‘having been wholly unsuccessful’ (judgment, paragraph 5).

2. His Honour recorded in his reasons for judgment that the

   ‘… circumstances justify that the wife should not only be ordered to pay the husband's costs but that she should be ordered to pay those costs on an indemnity basis.  Her conduct, after all, is at the nub of these proceedings.  Conduct of a grossly wrongful nature must be and was found in order to establish contempt at the level required under section 112AP of the Act. That conduct in itself involves flagrant breach of orders of the Court.’ (judgment, paragraph 1)

3. The trial Judge referred to the ‘general rule’ that ‘where there has been contempt, for a person to purge that contempt they ought to pay solicitor/client costs’ (paragraph 2).  He noted however that:

   ‘… it is also part of the general law that, in order to purge contempt, the contemnor should act so as to put the other party or the person who suffers damage as a result of the contempt back into the position they were in before the contempt was committed.’

10.  Reference was made to the judgment of Windeyer J in Australian Consolidated Press v Morgan (1965) 112 CLR 483, his Honour observing in reliance upon that decision that:

‘… there is only a need to make costs reparation by paying solicitor/client costs to purge the contempt, so it follows that there is no requirement to pay costs on an indemnity basis in order to make the reparation.’ (judgment, paragraph 2)

11.  His Honour concluded however that:

‘… the conduct of the wife in this particular instance has been deliberate and ruthless and is part of a dishonest course of action which amounts to the wife attempting to ensure that the husband receives nothing or as little as possible pursuant to section 79.’ (judgment, paragraph 3)

12.  He then recorded that:

‘In the circumstance, that conduct warrants an order for indemnity costs despite the fact that the wife claims to have no immediately available assets to meet them.   There are assets available for division between the parties.  Currently there are orders which prevent the wife having access to any of the substantial assets which might allow her to pay such costs.  If an order is made that she pay indemnity costs, ultimately she should be able to pay those from what would otherwise be her share of the matrimonial property pursuant to section 79 of the Act.’ (judgment, paragraph 4)

13.  The wife’s challenge to the trial Judge’s order for costs is articulated in ground 8 of her Notice of Appeal which provided:

‘That his Honour erred in exercising his discretion to order the appellant to pay the respondent’s costs at all and further on an indemnity basis that his Honour:

8.1 took into account conclusions as to the outcome of the proceedings affected by this appeal;

8.2 failed to take into account the absence of evidence as to the basis upon which the respondent’s costs were charged or their quantum; and,

8.3 took into account irrelevant matters in that his Honour expressed the facts which were central to the contempt proceedings, for which the appellant had already been punished, as a factor going to her conduct that he held justified a cost order on an indemnity basis.’

14.  In his written submissions in relation to ‘Costs of the trial and Subsequent Appeal’, counsel for the wife submitted, in the light of the decision of this Court, that:

‘The husband has been entirely unsuccessful and an appropriate exercise of discretion would be for him to be ordered to pay the costs of the hearing and the subsequent appeal on a party/party basis.’ (Appellant’s Written Submissions, paragraph 10)

15.  It was further submitted that:

‘It was always open to the husband to have sought the less draconian avenue of redress, namely section 112AB.  The husband elected to pursue the more rigorous course of action under section 112AP in circumstances where it was abundantly clear that the wife made no admissions and required the husband to prove each element of his case to the requisite standard.’ (Appellant’s Written Submissions, paragraph 11)

16.  Reliance was placed upon the fact that the ‘wife’s knowledge of the orders was plainly raised at the trial again and again’, including in the various passages of transcript identified by counsel in support of his submissions (paragraph 12).

17.  It was thus submitted that:

‘Despite being invited by the trial judge to address a necessary component of the case against the wife, this was not raised in submissions by the husband.  The husband’s case was thus fatally flawed and only given life by the trial judge’s impermissible reliance upon the wife’s silence.’ (Appellant’s Written Submissions, paragraph 13)

18.  A number of aspects of the husband’s conduct of the proceedings before the trial Judge were submitted to have generated ‘significant unnecessary costs’ (paragraph 14).  Whilst that may have been the case, the reality is that the trial Judge found those matters to have been established and no part of the appeal to this Court included a successful challenge to his conclusions in that regard.  The essence of the submissions on behalf of the wife was that ‘the husband’s case was always fatally flawed and conducted in a manner which incurred unnecessary costs for the wife’ (paragraph 16).

19.  On behalf of the husband a number of matters were submitted in support of the contention that, notwithstanding the success of the wife’s appeal to this Court, the orders made by the trial Judge should not be disturbed.  The comprehensive submissions of Senior Counsel for the husband fell under a series of headings.  The first of those headings ‘Undisputed serious breaches of Court’s orders’, emphasised the factual matters which constituted the breaches of the orders in respect of which the trial Judge found the wife’s contempt to have been proved. 

20.  Under the heading ‘Wife’s failure to reverse breaches when informed of them in contempt application’, it was submitted, accepting the decision of the majority in the substantive appeal, that the wife knew of the orders which she had breached ‘from the outset of the contempt application’.  Reliance was placed upon the fact that:

‘Despite her being informed shortly before the contempt process was filed that these transactions contravened the injunction she did nothing to rectify the breaches until the last possible moment in the proceedings before Cohen J.’ (Respondent’s Written Submissions, paragraph 5)

The reference to ‘the last possible moment’ is a reference to the sentencing hearing which occurred after the trial Judge informed the wife that he had found the contempt applications against her proved to the requisite standard.

21.  Reliance was placed upon a table of a ‘chronology of events’ which it was submitted:

‘… demonstrates the wife’s refusal to rectify the breaches over eighteen months of contempt proceedings, until the moment when Cohen J was about to impose punishment.’ (Respondent’s Written Submissions, paragraph 6)

22.  Under the heading ‘The contempt proceedings were necessary to achieve compliance’, it was submitted that the contempt proceedings ‘achieved two objectives’, they being that they ‘induced the wife to rectify the serious breaches of the Court’s orders which she had committed’ and ‘thereby upheld and vindicated the authority of the Court’ (Respondent’s Written Submissions, paragraph 7).

23.  It was thus submitted that it could not be ‘said that the husband’s proceedings before Cohen J were unsuccessful’ and that:

‘Not only did the contempt proceedings achieve the above results, they were necessary to that end.  Nothing short of bringing the wife to the point of judgment on penalty was capable of inducing her to rectify the breaches which she certainly had known about for the preceding eighteen months (September 2003 to March 2005).’ (Respondent’s Written Submissions, paragraph 8)

24.  Further, it was thus submitted that:

‘… in these circumstances it would be an unjust and erroneous exercise of discretion for the Court to deprive the husband of the costs order which Cohen J made in respect of the contempt proceedings at first instance.  In addition to being unjust to him in an individual sense, setting aside the costs order would be highly detrimental to the administration of justice by the Court.  Such a precedent would constitute the most serious disincentive to any party against taking necessary steps to procure compliance with the Court’s orders and uphold its authority.’ (Respondent’s Written Submissions, paragraph 9)

25.  A number of matters were raised under three headings in further opposition to the appeal against the trial Judge’s costs order.  The first such heading was that ‘The wife protracted the contempt proceedings’.  Reliance was placed upon the trial Judge’s findings with respect to the credibility of evidence given by the wife and her parents.  It was submitted that the wife delayed ‘steps to rectify breaches of the injunction until the last moment’ and thus ‘further protracted the contempt proceedings and exacerbated the costs incurred by both parties’ (paragraph 10).

26.  The wife was asserted to have been at least ‘reckless’ of the Court’s orders in that, having obtained ‘an injunction on her own application, then breaching it in two serious respects’ she had ‘inevitably attracted proceedings against her by the husband to rectify the breaches’ (paragraph 11).  It was thus submitted that the husband:

‘… should not be deprived of an order for costs which he incurred conducting a contempt proceeding upon the reasonable expectation that his opponent would know the terms and effect of an injunction which had been obtained on her own application.’ (Respondent’s Written Submissions, paragraph 11)

27.  Senior Counsel contrasted ‘the wife’s breaches with husband’s observance of the Court’s authority’ and particularised (Respondent’s Written Submissions, paragraphs 12 – 13) the ways in which that was said to have occurred.

28.  In written submissions in reply on her behalf, counsel for the wife submitted that it was a:

‘… non sequitur to suggest that the Appellant can be both “not guilty” of contempt for the purposes of the imposition of a penalty and “guilty” of contempt for the purposes of a costs application’. (Appellant’s Written Submissions in Reply, paragraph 3)

29.  It was further submitted that it was ‘simply wrong and dismissive of the Full Court’s decision to continue to assert’ that the ‘transactions’ undertaken by the wife which gave rise to the proceedings before the trial Judge were ‘breaches of the Court’s order’.  Reliance was again placed upon the husband’s ‘choice of invoking the less onerous task of prosecuting a contravention application’ (Appellant’s Written Submissions in Reply, paragraph 8), it being submitted on behalf of the wife that there was no ‘half way house’ available to the husband in that ‘he either succeeded or failed.  This court has determined he failed’.  Finally it was asserted that the suggestion that the wife ‘breached the court’s order’ was ‘ill founded’ in that ‘[t]he Full Court has determined there was no breach’ (Appellant’s Written Submissions in Reply, paragraph 12).  

30.  For reasons which will become apparent, it is unnecessary to refer specifically to the written submissions filed on behalf of the husband on 2 August 2006.

DISCUSSION

31.  As is apparent from the terms of ground 8.1 of the wife’s Notice of Appeal, central to the wife’s challenge to the making of a costs order against her by the trial Judge was his Honour’s reliance upon ‘conclusions as to the outcome of the proceedings’.

32.  It is clear from a reading of his Honour’s reasons for judgment that the ‘circumstance’ which was apparently most influential in his conclusion that an order for costs was justified was the wife’s ‘[c]onduct of a grossly wrongful nature’ which his Honour found ‘at the level required under section 112AP of the Act’ (judgment, paragraph 1).

33.  His Honour further recorded that:

‘… the conduct of the wife in this particular instance has been deliberate and ruthless and is part of a dishonest course of action which amounts to the wife attempting to ensure that the husband receives nothing or as little as possible pursuant to section 79.’ (judgment, paragraph 3)

34.  Largely for those reasons, his Honour concluded that the wife should pay ‘indemnity costs’.

35.  In the concluding passage of his judgment his Honour recorded that the wife should pay ‘indemnity costs in the contempt proceedings in which I regard her as having been wholly unsuccessful’ (judgment, paragraph 5).

36.  The thrust of the wife’s challenge to the costs order is that such order was predicated on the wife having been ‘wholly unsuccessful’ and that, by reason of the majority’s conclusion in the substantive appeal, the wife was not wholly unsuccessful but rather, given that her appeals against the trial Judge’s orders will be allowed, and the proceedings which gave rise to those orders dismissed, it is the husband who should be seen has having been ‘wholly unsuccessful’.

37.  In our view, the trial Judge’s order for costs does not turn wholly or so substantially upon the issue of the wife having been ‘wholly unsuccessful’, as to deny the order a foundation within the ambit of a reasonable exercise of discretion by virtue of the wife ceasing to have been ‘wholly unsuccessful’ by reason of the conclusion of the majority in the substantive appeal. 

38.  In our view, a balanced reading of his Honour’s judgment makes clear that it was the wife’s conduct which provided the substantial foundation for his conclusion that circumstances ‘justified’ the making of a costs order.  We have referred to the findings of fact which his Honour made in that regard.  In his comprehensive written submissions, the accuracy of which we find no reason to dispute, Senior Counsel for the husband has provided abundant reference to the ‘conduct’ of the wife which provided circumstances supportive of an order for the costs of the proceedings being made against her, irrespective of her success or its absence. 

39. As is clear from the terms of s 117 of the Family Law Act 1975 (Cth), and has been confirmed by the High Court (see Penfold v Penfold (1980) 144 CLR 311) no particular facts or circumstances must be established in order to constitute ‘circumstances’ that ‘justify’ an order for costs.

40.  The reality is that, in each of the ways particularised by Senior Counsel for the husband in the submissions to which we have referred, the wife’s conduct gave rise to what can best be described as ‘enforcement proceedings’ against her. 

41.  As Senior Counsel for the husband correctly submitted, there can be no doubt that, from the time the contempt proceedings commenced before the trial Judge, the wife knew that she was in breach of the orders of the Court.  That she was in breach of the orders is not in contest.

42.  It is a matter of record that only after the trial Judge informed the wife that he had found the charges against her proved, and was about to impose sentence in relation to them, did the wife attempt to comply with the Court orders.

43.  In our view the ‘conduct’ of the wife in the circumstances of this case justified an order for costs being made against her.  If our conclusion in this regard is erroneous, and the trial Judge’s order cannot stand because it was necessarily founded upon the wife having been ‘wholly unsuccessful’ and we were thereby, as clearly both parties invite us, to re-exercise the trial Judge’s discretion, we would, albeit without reliance upon the wife having been ‘wholly unsuccessful’, reach the same conclusion as did the trial Judge.

44.  The basis upon which we would so conclude is comprehensively, and with respect, eloquently articulated in the written submissions of Senior Counsel for the husband.  The submission on behalf of the husband (paragraph 9) has particular resonance with us.  To decline to deny the husband his costs of the proceedings before the trial Judge, in the circumstances of this case, notwithstanding that he has been unsuccessful on appeal, would be tantamount to rewarding a party who has acted in a way the unchallenged findings of the trial Judge establish that the wife has from the commencement of the contempt proceedings before him until the moment at which she was about to be sentenced for such actions.

45.  We appreciate that, as was submitted on behalf of the wife, the husband could have sought to enforce the injunctive orders pursuant to s 112AD.  On the material before us, had he done so, it is difficult to see how the husband could have been unsuccessful.  That however is not something about which we need speculate.  The reality remains that the wife’s conduct justified enforcement proceedings, and it can be inferred that had such proceedings not been taken, the wife would have continued to be in breach of the Court’s orders.  The time and circumstances in which the wife complied with the orders supports drawing such an inference.

46. The submission on behalf of the wife that she could not be ‘ “not guilty” of contempt for the purposes of the imposition of a penalty and “guilty” of contempt for the purposes of a costs application’ invites comment. Whilst clearly, the fact that the wife was ultimately found ‘not guilty’ of contempt is a relevant matter for the purpose of the wife’s appeal against the trial Judge’s order for costs and/or any re-exercise of discretion of this Court in the event of such appeal succeeding, we do not accept that s 117(2) is constrained in the manner submitted on behalf of the wife.

47. For the reasons we have indicated, we are not persuaded that the trial Judge’s costs order was so dependent upon the finding of guilt in the contempt proceedings as to cause the absence of such finding to vitiate the exercise of his discretion to award costs. The ‘conduct’ of the wife, as that is revealed by the evidence, remains a matter to which regard can be had under s 117(2) of the Act, notwithstanding that such conduct has not, in the view of the majority in this Court, been proved to the requisite standard to have constituted a contempt of the Court for the purposes of s 112AP of the Act. We see no inconsistency in the circumstances of this case in concluding that, although not constituting contempt within s 112AP of the Act, the wife’s conduct could nevertheless be an important fact or circumstance for the purpose of forming the opinion required for the purpose of s 117(2) of the Act and, in the circumstances of this case, provide an ample basis for the exercise of discretion to make a costs order.

48.  The suggestion by counsel for the wife that asserting that the ‘transactions’ undertaken by the wife did not constitute ‘breaches of the Court’s order’ is incorrect.  That the transactions were in breach of the Court’s order was not in issue before the trial Judge or this Court.  The issue before the trial Judge, and on appeal to this Court, was whether those breaches constituted a contempt of the Court for the purpose of s 112AP.  The fact that the majority in this Court concluded that the husband had not proved to the requisite standard that such was the case does not in our view change the character of the transactions or the trial Judge’s ability to rely upon the wife’s conduct in relation to them for the purpose of determining the costs of the proceedings before him.  Nor, if the appeal against the trial Judge’s order for costs were to be allowed, would this Court be precluded from relying upon the wife’s conduct in relation to those transactions for the purpose of re-exercising the trial Judge’s discretion. 

49. Whilst it is correct that contempt proceedings may not have been ‘necessary’ to achieve compliance with the Court’s orders, we are not persuaded, if this Court has to re-exercise the trial Judge’s discretion, that the fact that the wife complied with orders she had previously breached after such proceedings were successfully undertaken at trial is not a circumstance upon which this Court can rely. We do not understand s 117(2) to be so limited, either in substance or in time.

50. The submission on behalf of the wife in relation to the husband having either ‘succeeded or failed’ ignores a number of the circumstances of this case. No doubt, as counsel for the wife submitted, there were only two outcomes possible, they being success or failure. As s 117(2A) makes clear, being wholly unsuccessful is but one fact or circumstance relevant to the determination of a costs application. In our view, the circumstances in which the husband was wholly unsuccessful, albeit by majority decision in this Court, though weakening the strength of the husband’s claim for costs by comparison with his position had he been wholly successful, still leaves standing a substantial and adequate basis for concluding that, in all the circumstances, an order for costs should be made.

51.  It remains only to consider the complaints articulated on behalf of the wife in grounds 8.2 and 8.3 of her Notice of Appeal.  In our view the trial Judge did not err in exercising his discretion to order the wife to pay ‘indemnity costs’. 

52.  There are two reasons why we so conclude.  The trial Judge was exercising a broad discretion.  Absent an order for indemnity costs, the quantum of which would, in the absence of agreement, be determined by the appropriate officer of the Court in accordance with the appropriate legal principles, any order other than indemnity costs would, in the circumstances, have resulted in the husband being unfairly visited with the costs of proceedings, the necessity for which rested and remained with the wife.  The trial Judge was clearly mindful of that reality.  Our observations earlier in these reasons are also relevant in this context.

53.   In our view his Honour was entitled to exercise his discretion in the way in which he did in those circumstances.  If we are wrong in rejecting the challenge to the trial Judge’s reasons for ordering indemnity costs, largely in reliance upon the matters to which we have briefly referred, which are more fully and cogently articulated in the written submissions of Senior Counsel for the husband.  If re-exercising the trial Judge’s discretion, make the same order as did his Honour.

54.  Having concluded that the trial Judge’s order for the costs of the proceedings before him should not be disturbed, no question of an order for the costs of the proceedings in favour of the wife arises for consideration.

THE COSTS OF THE APPEAL

55.  Senior Counsel for the husband submitted that there should be no order for costs of the appeals and sought a costs certificate in favour of the husband.

56.  Counsel for the wife sought that the husband pay her costs of the appeals.  Counsel for the wife did not seek in his written submissions that the wife have a costs certificate in the event of the Court declining to make an order for costs of the appeals in the wife’s favour.

57.  In our view, there should not be an order for costs of the appeals, largely for the reasons advanced in the comprehensive and cogent submissions of Senior Counsel for the husband.  To the extent that the husband has been ‘wholly unsuccessful’ before this Court, that is but one of a number of factors which are relevant to the question of costs. 

58.  As is evident from the differing opinions in this Court in relation to the central issue raised by the substantive appeal, the husband was fully justified in resisting the wife’s appeal and seeking to maintain the trial Judge’s orders. The central issue in the appeal is not without complexity, as both the majority and dissenting judgments make clear.  The judgments of the High Court referred to in those judgments further emphasise the complexity of the central issue raised by this appeal.

59.  To the extent that the wife can rely upon the husband having been ‘wholly unsuccessful’ in this Court, that reliance is more than adequately offset in our view by the numerous aspects of the wife’s ‘conduct’ throughout the proceedings, to which Senior Counsel for the husband referred in his written submissions.

60.  We are not satisfied that the circumstances justify an order for costs of the appeal in favour of the wife.  In our view the appeal has been allowed in circumstances which properly enliven the provisions of the Federal Proceedings (Costs) Act, 1981 (Cth).  A certificate under the Act has been sought on behalf of the husband and it will be granted.  No such certificate having been sought on behalf of the wife we cannot properly grant such certificate.  We will however allow 28 days within which the wife may apply for such certificate and will consider any submissions in support of such application made within that time.

ORDERS

1. That the wife’s appeal against orders punishing her for contempt made on 30 May 2005 and orders ancillary thereto by way of implementation of such orders be allowed and such orders be set aside.

2. That the husband’s Amended Application for Contempt filed 23 September 2004 be dismissed.

3. That the wife’s appeal against the order for costs made against her on 30 May 2005 be dismissed.

4. That there be no order for costs of the wife’s appeals.

5. That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal..

   6. Reserve liberty to the wife to make submissions in writing in support of any application for a certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 within 28 days.

I certify that the preceding
60 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 23/08/2006