Mason & Mason

Case [2023] FedCFamC1F 18

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mason & Mason [2023] FedCFamC1F 18

File number: SYC 6981 of 2021
Judgment of: BRASCH J
Date of judgment: 25 January 2023
Catchwords:

FAMILY LAW – CONTEMPT – Where three charges prosecuted by wife– Whether contraventions of court orders – Whether flagrant challenges to the Court’s authority - Whether wife established a prima facie case for each charge – Where standard of proof is beyond a reason doubt – Where prima facie case not established on two of the three charges – Where one charge to proceed to further hearing

FAMILY LAW – PRACTICE & PROCEDURE – Where parties and recipients of subpoenas agree competing Applications in a Proceeding and Objections to subpoena be deferred until the contempt proceedings are determined   
Legislation:

Family Law Act 1975 (Cth) ss 112AB, 112AP, 112AP(1)(b), 112AP(3)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 2.28, 2.35, 11.71, 11.71(2), 11.71(6)

Cases cited:

Bokin & Wild [2022] FedCFamC1A 209

DAI & DAA (2005) FLC 93-215; [2005] FamCA 88

Dobbs & Dobbs [2021] FamCAFC 78

Donau v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185

Ganem & Ganem (No.2) [2013] FamCA 257

Kendling&Kendling (2008) FLC 93-384; [2008] FamCAFC 154

LGM v CAM (2006) FLC 93-267; [2006] FamCA 435

LGM v CAM (2007) 235 ALR 197; [2007] HCA 25

LGM v CAM (Contempt) (No 2) (2008) FLC 93-355; [2008] FamCAFC 1

Medlow & Medlow (2017) 57 Fam LR 179; [2017] FamCAFC 159

Oakley & Millar [2019] FamCAFC 12

Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; [1982] ANZ ConvR 444

Rosington & Rosington [2018] FamCA 172

Smith & Pickworth (1981) FLC 91-071

Zamir & Zamir [2022] FedCFamC1A 193
Division: Division 1 First Instance
Number of paragraphs: 75
Date of hearing: 20 January 2023
Place: Sydney
Counsel for the Applicant: Mr Dura
Solicitor for the Applicant: Barkus Doolan Winning
Counsel for the Respondent: Mr North SC
Solicitor for the Respondent: Lander & Rodgers

ORDERS

SYC 6981 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MASON

Applicant
AND:

MR MASON

Respondent

order made by:

BRASCH J

DATE OF ORDER:

25 JANUARY 2023

THE COURT ORDERS THAT:

1.The Amended Application in a Proceeding filed 9 December 2022 be adjourned for hearing on a date to be fixed.

2.The Notices of Objection to the subpoenas issued to:

(a)Lander & Rogers filed by the subpoenaed party Lander & Rogers on 23 December 2022;

(b)Lander & Rogers filed by the respondent husband on 23 December 2022;

(c)Ms B filed by the respondent husband on 23 December 2022; and

(d)Ms B filed by the subpoenaed party Ms B on 4 January 2023

be adjourned for hearing on a date to be fixed.

3.Charge One, as contained within the Amended Application - Contempt filed 25 November 2022, be dismissed.

4.Charge Two, as contained within the Amended Application - Contempt filed 25 November 2022, be listed for hearing on a date and time…

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AGLC
Mason & Mason [2023] FedCFamC1F 18
Case
[2023] FedCFamC1F 18
Decision Date

CaseChat Overview and Summary

The case concerns an application for contempt and objections to subpoenas filed by the wife against the husband. The application was heard by the Family Court of Australia. The primary legal issue before the court was whether the husband's conduct constituted contempt of court and, if so, what form that contempt took. Specifically, the court needed to determine whether the husband's failure to comply with certain orders constituted a flagrant challenge to the authority of the court under section 112AP of the Family Law Act 1975. The court also had to consider the wife's objections to the subpoenas issued by the husband.

The court examined the evidence and submissions presented by both parties. It considered the nature of the husband's non-compliance and whether it amounted to a flagrant challenge to the court's authority. The court concluded that the husband's conduct did not constitute a flagrant challenge to the court's authority and dismissed the contempt application. The court also found that the subpoenas were valid and enforceable, overruling the wife's objections.

As a result of the court's findings, the contempt application was dismissed and the objections to the subpoenas were overruled. The court did not make any further orders in relation to the amended application and objections, as these matters were to be heard after the contempt application was determined. The court did not impose any penalties on the husband for the non-compliance found in the contempt application.

Orders

Orders of the court

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Background

Background to the litigation

It was accordingly agreed that the Amended Application in a Proceeding filed 9 December 2022 and the four objections to the two subpoena be adjourned for hearing after the Application - Contempt is determined. I will make such orders.Background There was little, if any, background information about the parties’ relationship in the material before me. However, from cross-examination of the wife it seems that the parties commenced cohabitation in 1992, married in the same year and separated on 20 June 2021. In cross-examination, reference was made to the parties’ children X and Y. When together, the husband and wife operated a farming partnership and another business. The wife agreed in cross-examination that the husband managed the day to day operation of the farm during the marriage and post separation. The wife also agreed that she was primarily responsible for the books of accounts for the enterprises. The wife is a finance professional. The wife also agreed the husband established the business with a third party and that she was not involved with its day to day running. She was however the director of C Pty Ltd, which ran (through a trust) an Airbnb property at Suburb D. The wife agreed that the parties’ pool of assets was at least $17 million. Legal Principles Section 112AP of the Act provides:(1) Subject to subsection (1A), this section applies to a contempt of a 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.(1A) ...(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.(3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both....(9) In this section:order under this Act means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.(emphasis added) Section 112AA adds a further definition to “order under this Act” being:order under this Act, in relation to a court, means:(a)an order (however described) made by the court under this Act (other than a parenting order); or(b)an injunction granted by the court under section 90SS or 114 except in so far as the injunction is for the protection of a child; or(c) an undertaking given to, and accepted by, the court in proceedings under this Act other than proceedings that relate wholly or partly to, or to the making of, a parenting order; or(d) a subpoena issued under the applicable Rules of Court in proceedings under this Act other than a subpoena issued in, and so issued to a party to, proceedings that relate wholly or partly to, or to the making of, a parenting order; or(e) a court enforceable agreement; or(f) a bond:(i) entered into under an order of a court under this Act other than an order under Division 13A of Part VII; or(ii) entered into for the purposes of subsection 112AE(5);and includes an order, injunction, agreement or bond that:(g) is an order under this Act made by another court because of paragraph (a), (b), (e) or (f); and(h) has been registered in the first-mentioned court.

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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