Nieuwstraten & Nieuwstraten

[1987] FamCA 11

In the marriage of NIEUWSTRATEN, B. and NIEUWSTRATEN, P.

(1987) FLC ¶91-826

Other publishers' citations: (1987) 11 FamLR 681 (1987) 89 FLR 251

In the Full Court of the Family Court of Australia.

Judgment delivered 15 May 1987.

Before: Evatt C.J., Ellis and Wilczek JJ.

Evatt C.J., Ellis and Wilczek JJ.: On 27 May 1986 the wife filed an application in the Sydney Registry of this Court seeking that the husband be dealt with by the Court for contempt.

The application came on for hearing on 12 November 1986. At the completion of that hearing the trial Judge gave reasons for judgment and found that a prima facie charge of contempt against the husband was established. His order was in these terms:

``Upon application made to the Court this day and upon hearing the legal representatives of both parties the Court found that a prima facie charge of contempt against the husband is established.

It is ordered

1. That the Registrar of this Court fix a date for hearing of this matter.
2. That the husband file and serve an affidavit in answer or material in defence within twenty eight days from this date.''

The husband on 2 December 1986 filed a Notice of Appeal in which he appealed from the whole of the decree and sought orders that the application of the wife be dismissed and that she pay the husband's costs of the appeal.

The first question is whether an appeal lies. Essentially, it is the finding in this case that is under attack. Section 94(1) of the Act provides inter alia that an appeal lies to a Full Court of the Family Court from a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction under the Act. ``Decree'' is defined by sec. 4(1) to mean ``decree, judgment or order, and includes a decree nisi and an order dismissing an application or refusing to make a decree or order''.

In Yule v. Junek (1978) FLC ¶90-439 at p. 77,225 Mason J. (as he then was) considered the question of when an appeal lies to this Court. His Honour referred to the relevant statutory provisions which have since been amended and said:

``The subsection, read in the light of the statutory definition, makes it clear that an appeal lies from a judicial order, not from a mere answer to a question of law arising in proceedings, in particular an answer which of itself could not be decisive of the rights of the parties unless and until the primary judge dealt with the other questions upon which he reserved judgment. The consequence is that no appeal lay to the Family Court from the reasons for judgment delivered by Woodward J. and the Full Court of the Family Court had no jurisdiction to exercise until such time as his Honour made an order.''

In the same case Murphy J. said:

``Mr Justice Woodward's ruling, however, was not a decision within sec. 94 of the Act. Although erroneous, it was not appealable. The Family Court of Australia acted without jurisdiction.''

Stephen, Jacobs and Aickin JJ. agreed for the reasons stated by Mason J. that in fact no appeal lay to the Full Court of the Family Court.

The subsequent amendments to sec. 94 do not affect the conclusion reached in Yule v. Junek on the question.

The other questions in Yule v. Junek were essentially whether the case was to proceed on the basis of the petition for dissolution on the ground of adultery filed under the repealed Act, or whether it would proceed upon the applicant's application for dissolution under the Family Law Act. In the latter case, the issue of damages for adultery would not arise at all. The High Court was silent on the question whether there could be an appeal by either party if it had later been decided that the case would proceed under the Matrimonial Causes Act, or whether it would be necessary to wait until the ultimate question of dissolution was decided. No doubt prohibition or mandamus could have been sought at that stage.

The finding that there was a prima facie case of contempt in the matter before us has some points of resemblance to a committal order. As a result of the finding, the respondent was formally charged with contempt. He was not called upon to plead to the charge but was ordered to file and serve an affidavit in answer or material by way of defence to the charge within 28 days. He was thus materially affected by the finding, because it exposed him to a trial on the issue of contempt and, at least in theory, to imprisonment pending the disposal of the charge (O. 34 r. 4).

In Sankey v. Whitlam & Anor (1978) 142 C.L.R. 1 at p. 83, Mason J. (as he then was) held that a magistrate in committal proceedings had to act in a judicial manner because the respondent was materially affected by the outcome. Thus, a writ of prohibition would lie. The question of an appeal was not in issue, since there was in fact no appeal from an order of committal. The case throws some light on the effect of a committal order, though the proceedings in the present case were not in fact committal proceedings.

On the basis of these authorities it could be concluded that although the finding made by his Honour was not technically a decree, judgment or order, it was more than a mere answer to a question of law, because it materially affected the respondent. It would certainly open the way to a writ of prohibition or certiorari (Sankey v. Whitlam).

In re Watson; Ex parte Armstrong (1976) FLC ¶90-059, it was held that a decision by a judge not to disqualify himself or herself on the ground of bias is not a decree, judgment or order. There is no appeal from such a decision; the remedy is by way of prohibition.

The finding in the present case seems to bear more comparison with the decision in re Watson than with Yule v. Junek. In either case, however, it is difficult to regard it as directly appealable. That does not, however, conclude the matter, since his Honour made two orders. These were not final orders, but of an interlocutory nature.

Order 1 is, in our view, clearly not an order that can be appealed from since it is directed to the Registrar. Order 2, on the other hand, is directed to the husband and imposes a requirement on him to file and serve material. It is in its nature an interlocutory order, and while the Act does not preclude such appeals, the Court leans against them.

The situation differs from that under the Federal Court of Australia Act, 1976. Section 4 of that Act, as amended, expressly defines ``judgment'' to include both final and interlocutory judgments. Under sec. 24(1A) leave is required to appeal from an interlocutory judgment (cf. Rules of the Supreme Court (England) O. 59 r. 1, Supreme Court Act 1981, sec. 18(1)(b); Gordon v. Cradock (1964) 1 Q.B. 503; (1963) 2 All E.R. 121, C.A..

Before amendment the Federal Court Act allowed an appeal from a ``final judgment'' Computer Edge Pty. Ltd. & Anor v. Apple Computers Inc. & Anor (1984) 54 A.L.R. 767; Carr & Anor v. Finance Corp. of Australia Ltd. (No. 1) (1981) 147 C.L.R. 246; 34 A.L.R. 449; David Syme & Co. Ltd. v. Lloyd (1985) 59 A.L.R. 159; Sanofi v. Parke Davis Pty. Ltd. & Anor (1982) 39 A.L.R. 405.

The Family Law Act does not define ``judgment'', and it can be taken not to exclude appeals from interlocutory orders provided that the order is one which has the quality of a judicial order.

On the face of it, O. 2 appears to be a standard direction. But there are aspects of the order which cause concern, and which appear to justify the Full Court in entertaining an appeal. In our view, a respondent should not be required to file affidavit material in a contempt case. The Rules do not require this, and it is inconsistent with the requirements of a fair trial in a quasi-criminal matter. Here there is a further reason for concern in that the direction was made before the applicant's material was complete.

A respondent should, of course, be given a proper opportunity either to file affidavit material or to call direct evidence. What is in question is whether the procedure followed was proper. The Court has adopted the principle of applying strictly in favour of the respondent the rules in respect of contempt procedure. (The appropriate approach to applications for contempt has been considered in cases such as Smith and Pickworth (1981) FLC ¶91-071 at p. 76,527 and Alexander and Alexander (1982) FLC ¶91-244 at p. 77,343. See also Sahari and Sahari (1976) FLC ¶90-086.)

The relevant rule dealing with the procedure in contempt cases is as follows:

``Order 34, Rule 5 PROCEDURES ON HEARING

5. On the hearing of an application under sub-rule 2(1); and in proceedings for contempt in the face of the court, the court shall —

(a) cause the person against whom the contempt is alleged to be orally informed of the contempt with which that person is charged and call upon that person to plead thereto;
(b) hear such evidence as the applicant may adduce;
(c) require that person to make any defence that person may wish to make to the charge;
(d) after hearing that person and any evidence that person may seek to adduce, determine the matter of the charge and whether that person has purged his contempt; and
(e) make an order for punishment or otherwise.''

The procedure adopted in the present case did not follow this rule, since the respondent submitted to his Honour that he should not be charged, called upon to plead or required to put on material until a prima facie case was made out. While Rules do not require the respondent to adduce any evidence until the applicant has made out a case, they seem to envisage, and certainly do not preclude the Court from putting the charge, in accordance with para. (a) before the applicant's evidence is put in. The respondent may, of course, object to the applicant's evidence, but may defer cross-examination until such time as the charge is put. His Honour chose the course of considering the applicant's affidavit evidence before putting the charge to see whether it revealed a prima facie case. Since he was invited to do this by the respondent, it might not, in itself be objectionable, provided that the applicant completed her case before a finding was made and the charge put. In the end result, however, the applicant's case was not completed. One consequence of this was that a further hearing of the applicant's case would be required at a later date.

Another consequence was that a prima facie case was found on the basis of incomplete material. To make such a finding it was necessary to determine whether there were the essential elements of the contempt alleged (May v. O'Sullivan (1955) 92 C.L.R. 654; Wilson v. Kuhl:Ryan v. Kuhl (1979) V.R. 315, McGarvie J.). In the present case these elements were the making of the order, knowledge of the order by the respondent, non-compliance with the order and intention on the part of the respondent in relation to non-compliance.

The order is a matter of record (Craven v. Smith (1869) L.R. 4 Exch. 146). In any event the making of the order and the fact that it had not been complied with was evidenced by the wife's affidavit of 23 April 1986.

As to knowledge of the order, the affidavit of service, dated 19 November 1985, and filed on 29 April 1986 was evidence that the respondent had been served with a copy of the order on 16 November 1985. It was submitted by the appellant that the applicant could not rely on the affidavit of service because it had not been served upon the respondent before the hearing. It was submitted that the Court's discretion to admit affidavit evidence which has not been so served should not be exercised in a contempt matter, since it was in the nature of a criminal proceeding. This submission cannot be upheld. While the discretion must be exercised in such a way as to preserve the rights of the respondent, there is no ground for a blanket exclusion of additional evidence at the time of the hearing. It is a question of ensuring that the respondent has adequate notice of the evidence. As the matter was stood over for 28 days, and as the respondent had an opportunity to require the process server to attend for cross-examination, no objection could be taken to his Honour having regard to this affidavit evidence.

It was further submitted that in addition to knowledge of the order it was necessary to show that a warning had been given that failure to comply with the order might lead to punishment for contempt, and that a demand for payment had been made.

As to the warning, no doubt it is desirable that such a warning be given, but there is no requirement in the Act nor in the Rules which would make failure to give a warning a fatal defect to a case of contempt. The absence of a warning may be relevant on the question of intent, or it may affect the penalty. But it could not of itself preclude a conviction for contempt.

As to the demand, in this case the wife's affidavit referred to letters of demand sent by her solicitors. Copies of the letters were annexed. Objection was taken to this evidence as being inadmissible. His Honour dealt with the matter in his decision in this manner:

``I overruled his objections, and allowed the matter to proceed. It seemed to me that my discretion at this stage of the proceedings at least would allow for the admission of such matter in that way it being quite clear that the matter could have been established in a more appropriate way had the solicitor concerned put on an affidavit. That no doubt should be remedied before the matter comes to a hearing, if that is ultimately what happens.''

The applicant did, in fact, ask to call the solicitor to give oral evidence if the affidavit was not admitted, but his Honour allowed the evidence on the basis that he was not dealing with the charge but with whether or not there was a prima facie case. In other words he was allowing a different standard of proof in regard to the prima facie case than in regard to the hearing of the charge. There is no justification for this course of action.

However, there is not an absolute requirement that a demand for payment be made as a condition of bringing contempt proceedings. No doubt it is a sound practice to make a demand (AMIEU v. Mudginberri Station P/L (1986) 60 A.L.J.R. 608). The absence of a demand may be a relevant factor to consider, in the same way as the absence of a warning. But evidence of a demand was not an essential element of the contempt. Nevertheless, the charge that the husband had ``failed to comply with the request for payment made on 3 April 1985, 17 April 1985, 30 September 1985, 22 October 1985 and 13 November 1985'' cannot stand in the absence of admissible evidence that such demands were made.

Disobedience of the order must be in some way intentional or deliberate. His Honour referred to this question finding that while it was not necessary to establish a wilful or contumacious element in cases such as this, the act or omission must be shown to be deliberate or at least not accidental: Sandilands and Sandilands (1980) FLC ¶90-827 at p. 75,240; Alexander and Alexander (1982) FLC ¶91-244 at p. 77,346; English and English (1986) FLC ¶91-729 at p. 75,294; R. v. B. (1971) 20 F.L.R. 368.

To establish intent the applicant must show that the respondent, knowing of the order and having the means to meet it failed to do so. However, the only evidence of the husband's ability to pay arose from the original reasons for decision of 22 November 1984. No doubt it would be difficult for the applicant to have substantial and detailed evidence of the respondent's financial circumstances. Nevertheless, an applicant might be able to give evidence that the situation of the respondent was unchanged from that at the time of the trial, that he lived in the same house, carried on business at the same address, had a car, etc. However, the attempt to put such evidence to his Honour was not persisted in after objection by the respondent to part of an affidavit by the wife.

The extent of the evidence required would vary with the circumstances of the case. In the absence of any evidence at all, however, an essential element of the contempt was not established in a prima facie sense. It was not in the circumstances open to his Honour to find a prima facie case of contempt.

It follows from all that has been said that there was no basis for his Honour to order, as he did, that the respondent should file and serve an affidavit in answer or material in defence. No prima facie case had been made out. In addition, though this was not argued before us, the respondent should not have been required to file and serve material.

In these circumstances, it is appropriate to entertain the appeal against the order made on 12 November, to set it aside, and to remit the matter for further hearing.