FAMILY COURT OF AUSTRALIA
| MEDLOW & MEDLOW | [2017] FamCAFC 159 |
| FAMILY LAW – APPEAL – Contempt – Appeal against dismissal of contempt application – Deliberate breaches of asset-preservation orders and injunctions alleged – Approach to prima facie case considered – Ambiguity – Obligation to construe the orders – Need to construe orders does not foreclose contempt – Where the orders contain typographical errors – An order which requires determination of a fact by a court is not self-executing – Denial of procedural fairness – Test for flagrant challenge to the authority of the court discussed – Admission of evidence in contempt proceedings – Appeal allowed – Contempt application remitted for rehearing. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the appeal is allowed and it is not necessary to consider application – Application in an Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly successful – Respondent to pay costs. |
| Family Law Act 1975 (Cth) ss 112AP(1)(b), 117 Family Law Rules 2004 (Cth) r 21.02 |
| Abduramanoski v Abduramanoska (2005) FLC 93-215 Athens and Anor v Randwick City Council (2005) 64 NSWLR 58 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 Cluny & Skinner [2017] FamCA 255 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 Ganem & Ganem [2013] FamCA 256 Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932] 2 KB 87 Ibbotson and Wincen (1994) FLC 92-496 Kioa v West (1985) 159 CLR 550 Kirkpatrick v Kotis (2004) 62 NSWLR 567 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 May v O’Sullivan (1955) 92 CLR 654 National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 |
| APPELLANT: | Ms Medlow |
| RESPONDENT: | Mr Medlow |
| FILE NUMBER: | SYC | 7742 | of | 2010 |
| APPEAL NUMBER: | EA | 96 | of | 2016 |
| DATE DELIVERED: | 15 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 19 June 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 May 2016 |
| LOWER COURT MNC: | [2016] FamCA 411 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McHugh SC with Ms Bathurst |
| SOLICITOR FOR THE APPELLANT: | Barkus Doolan |
| COUNSEL FOR THE RESPONDENT: | Mr Sansom SC |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
The appeal be allowed.
Order 1 made by the Honourable Justice Rees on 26 May 2016 be set aside.
The Application in an Appeal filed on 5 June 2017 be dismissed.
The proceedings be remitted for rehearing by a judge of the Family Court of Australia other than the Honourable Justice Rees.
The respondent pay the appellant’s costs of and incidental to the appeal as agreed or assessed within 28 days of agreement or assessment whichever applies.
Pursuant to r 19.50 of the
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- Medlow & Medlow [2017] FamCAFC 159
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- [2017] FamCAFC 159
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CaseChat Overview and Summary
The court found that the orders were ambiguous due to typographical errors, but this did not preclude a finding of contempt. The obligation to construe orders did not necessarily prevent a contempt finding, particularly where the order required a court to determine a fact. The court also noted that an order that required a court to determine a fact was not self-executing. The denial of procedural fairness and the test for a flagrant challenge to the authority of the court were discussed, but the court concluded that the appeal should be allowed and the proceedings remitted for rehearing by a different judge. The application to adduce further evidence was dismissed as the appeal was allowed, and the application to allow the appeal to be heard with senior counsel was granted.
The appeal was allowed, and the orders made by the primary judge were set aside. The application to adduce further evidence was dismissed, and the respondent was ordered to pay the appellant’s costs of and incidental to the appeal. The proceedings were remitted for rehearing by a judge of the Family Court of Australia other than the Honourable Justice Rees. The court certified that it was reasonable for the parties to engage senior counsel on the appeal.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Order 1 made by the Honourable Justice Rees on 26 May 2016 be set aside.
3.
The Application in an Appeal filed on 5 June 2017 be dismissed.
4.
The proceedings be remitted for rehearing by a judge of the Family Court of Australia other than the Honourable Justice Rees.
5.
The respondent pay the appellant’s costs of and incidental to the appeal as agreed or assessed within 28 days of agreement or assessment whichever applies.
6.
Pursuant to r 19.50 of the Family Law Rules 2004 (Cth) it is certified that it was reasonable for the appellant and the respondent to engage senior counsel on the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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