Mason & Mason (No 2)

Case [2023] FedCFamC1F 72

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mason & Mason (No 2) [2023] FedCFamC1F 72

File number: SYC 6981 of 2021
Judgment of: BRASCH J
Date of judgment: 20 February 2023
Catchwords:

FAMILY LAW – CONTEMPT – Where three charges prosecuted by wife – Where prima facie case not established on two of the three charges – Where one charge proceeded to further hearing – Where husband encumbered a property in contravention of an order – Where Division 7A loan obligations were due – Where husband borrowed money and secured property to have funds available to meet that joint obligation - Whether a flagrant challenge to the authority of the Court – Where husband’s acts were in the general run of contraventions - Where charge of Contempt not made out beyond reasonable doubt – Where charge dismissed

FAMILY LAW - COSTS – Orders made for written submissions on costs – Where parties agree costs be determined on those submissions in Chambers  
Legislation:

Family Law Act1975 (Cth) ss, 112AA, 112AB, 112AD, 112AP(1)(b)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 11.71, 11.71(7), 11.71(7)(b)(i) 11.71(7)(b)(ii), 12.13(3)(b)

Cases cited:

Bande and Cade (2011) 45 Fam LR 376; [2011] FamCAFC 93

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

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

Ibbotson and Wincen (1994) FLC 92 – 496; [1994] FamCA 103

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

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

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

Mason & Mason [2023] FedCFamC1F 18
Division: Division 1 First Instance
Number of paragraphs: 69
Date of hearing: 14 February 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 & Rogers

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:

20 FEBRUARY 2023

THE COURT ORDERS THAT:

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

2.Any party wishing to agitate for costs do so by filing and serving written submissions within 28 days of the date of this order.

3.The other party is to file and serve written submissions in reply 28 days after the service of any written submissions provided for in Order 2 above.

4.The need to file an Application in a Proceeding with respect to costs is dispensed with.

5.The parties are agreed the issue of costs be determined in Chambers.

THE COURT NOTES THAT:

A.In the event either party files written submissions, the parties are to email a copy to chambers (via …@…) copied to the other parties.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to…

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Mason & Mason (No 2) [2023] FedCFamC1F 72
Case
[2023] FedCFamC1F 72
Decision Date

CaseChat Overview and Summary

The case before the court involves a dispute between the parties, identified as Mason and Mason, who are engaged in agricultural and financial enterprises. The nature of the dispute centres on the interpretation and application of a consent order made on 14 October 2021, and the alleged contempt of that order under section 112AP of the relevant Act. Both parties were represented by expert family law firms and counsel during the proceedings. The primary legal issues the court needed to address pertained to the criteria for establishing contempt under section 112AP of the Act and whether the actions of the parties amounted to a flagrant challenge to the authority of the court. This involved determining whether each element of the contempt charge was proven beyond reasonable doubt, including the respondent's knowledge of the order, the deliberate and intentional nature of the act, and the exceptional or striking nature of the alleged contempt.

The court's reasoning focused on the established legal principles regarding contempt under section 112AP, which was described as a complete and self-contained code. The court emphasised that each element of the contempt charge had to be proven beyond reasonable doubt, following the precedent set in Rutherford v Marshal of the Family Court of Australia and Ganem & Ganem (No.2). The court examined whether the respondent knew the terms of the orders, whether the act was deliberate and intentional, and whether the act constituted a flagrant challenge to the court's authority. The court considered the exceptional or striking nature of the alleged contempt, as highlighted in Bande and Cade and Ibbotson and Wincen. After evaluating the evidence and applying these legal principles, the court determined that the respondent's actions did not amount to a flagrant challenge to the authority of the court. Consequently, the court dismissed the contempt application.

The final orders of the court were to dismiss the contempt application brought against the respondent. The court's decision underscored the stringent requirements for establishing contempt under section 112AP and the need for clear evidence of a flagrant challenge to the court's authority. The court's ruling provided clarity on the application of the relevant legal principles and the high threshold for proving contempt in this context.

Orders

Orders of the court

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Background

Background to the litigation

These are my ex tempore reasons. I have, corrected the transcript for grammatical errors and to make my spoken works more amenable to reading. Background The scant information I had about the parties’ backgrounds is contained within the prima facie Reasons. I will not repeat that again here, save to observe the parties are involved in agricultural and financial enterprises.Legal Principles The following is taken from the prima facie Reasons at [2]:The “order under the Act” was an interim order made by consent on 14 October 2021. The Consent Order reveals both parties were represented by expert family law firms along with Senior Counsel for the wife, and Queens Counsel for the husband (as it was at that time). The Order also reveals the parties were with their respective Counsel. The firms that represented the parties on the making of the 14 October 2021 Order remain on the record. The prima facie Reasons set out ss 112AP, 112AA and 112AB of the Act. I will not repeat those extracts again, suffice to say the parties were in agreement that the Order of 14 October 2021 was an order to which s 112AP applied. I extract the following from the prima facie Reasons at [14]-[15]:14.Section 112AP has been called a complete and self-contained code; see DAI & DAA (2005) FLC 93-215 at 79,582: 47. In Rutherford v Marshal of the Family Court of Australia [1999] FamCA 1299; (1999) FLC 92-866 at 86,241, the Full Court described s 122AP, then Part of Division 3 of Part XIIIA after the 1988 amendments, “a complete code for dealing with contempts of the Court”. The Full Court affirmed the decision in Schwarzkopff (supra), noting that contempt under the Act does not constitute “an offence against any laws of the Commonwealth”. The Court accepted a submission that s 112AP, as it then was, constituted a self contained code, and general sentencing legislation, whether State or Federal, had no application15.It was common ground that the following principles apply, which were usefully summarised by Aldridge J in Ganem & Ganem (No.2) [2013] FamCA 257 (approved by the Full Court in Oakley & Millar [2019] FamCAFC 12):10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate [2002] FamCA 356; (2002) 29 Fam LR 195; (2002) FLC 93-107)11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:•The respondent knew the terms of the orders. (LGM & CAM [2006] FamCA 435; (2006) FLC 93-267 at 80, 536)•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91- 729 at 75, 294)•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.•The act must involve a flagrant challenge to the authority of the court. In Bande and Cade [2011] FamCAFC 93; 45 FamLR 376 at 39 the Full Court said:The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen [1994] FamCA 103; (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” ... is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD ... it is a question of fact and degree whether the stringent terms of the section are satisfied ...

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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