Perica & Perica (No 4)
[2023] FedCFamC2F 1670
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perica & Perica (No 4) [2023] FedCFamC2F 1670
File number(s): HBC 984 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – property – contempt application – finding that respondent contravened orders of the court – finding that no flagrant challenge to the authority of the court – application dismissed Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) div 4.2.2, r 6.17(a)(ii)
Family Law Act 1975 (Cth) ss 112AP, 112AB(a)(ii)
Cases cited: Ganem & Ganem (No 2) [2013] FamCA 257
In the Marriage of Ibbotson and Wincen (1994) 18 Fam LR 164
In the Marriage of Sahari (1976) 2 Fam LR 11,126
In the Marriage of Tate (No 3) 30 Fam LR 427
Mason& Mason [2023] FedCFamC1F 18
Oakley & Millar [2019] FamCAFC 12
Parrish & Gallejo (No 2) [2018] FCCA 2851
Perica & Perica (No 2) [2023] FedCFamC2F 1010
Pitman & Hynes [2022] FedCFamC1F 188
Stradford & Stradford [2019] FamCAFC 25
Zamir & Zamir (2022) 65 Fam LR 612
Division: Division 2 Family Law Number of paragraphs: 53 Date of last submission/s: 26 August 2023 Date of hearing: 26 July 2023 and 25 August 2023 Place: Hobart For the Applicant: In person Counsel for the Respondent: Mr McKenna Solicitor for the Respondent: Murdoch Clarke ORDERS
HBC 984 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PERICA
Applicant
AND: MS PERICA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Contempt Application filed 25 May 2023 is dismissed.
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 review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
By judgment delivered 11 August 2023[1] in respect of a Contempt Application filed 25 May 2023 by the Applicant, who is the former husband of the Respondent, I determined that there was reason for the Respondent to show cause in relation to 17 alleged contraventions of various orders made by the registrars of this Court. The particulars of the alleged contraventions are the subject of the Annexure to those written reasons for judgment.
[1] Perica & Perica (No 2) [2023] FedCFamC2F 1010.
On 25 August 2023, I resumed the hearing of the Contempt Application. The Respondent maintained her denial of each alleged contravention and, having been given opportunity to adduce evidence, declined to do so. Instead, her Counsel advised the Court that she maintained her right to silence and put the Applicant to proof. However, Counsel sought to tender two documents in her case, namely:
·The list of exhibits in the final property hearing conducted on 24 and 25 July 2023; and
·A copy of an application brought by the court.
The Applicant did not object to the Court receiving the exhibit list and it was received in the Respondent’s case.[2] The copy of the Court application did not appear relevant to the issues before me and, ultimately, Counsel for the Respondent did not press for the Court to receive it.
[2] Exhibit R-1.
The evidence relied upon by the Applicant in the Contempt Application had already been received and read in mid-2023, being the day of the contempt hearing.
The Applicant made submissions as follows urging the Court to find that there had been multiple contraventions of court orders which should collectively be treated as contemptuous. He submitted that:
(a)There were numerous contraventions, and his affidavit material established the relevant non-compliance. Because of the number of non-compliances, it was a serious case;
(b)There are no simple, clear or predictable principles demonstrative of when breaches of orders and those relating to obligations to make disclosure would constitute a flagrant challenge of the authority of the Court, and he considers he has a constitutional duty to pursue the application to clarify the law; and
(c)The criteria for a flagrant challenge to the authority of the Court should be more stringent than the criteria for the flagrant challenge of a friendship, stating:[3]
…ignoring an order once constitutes a challenge to the authority of the court, but ignoring the same order or extension of time for the second time, that should really constitute a flagrant challenge to the authority of the court. Also, if various court orders are contravened three times in any six months, or if one order is contravened in an exceptional or striking manner, then a flagrant challenge of the court has been demonstrated.
[3] Transcript of proceedings dated 25 August 2023 on page 7.
The Applicant then proceeded to make four “pertinent observations” that:
(1)The Respondent did not perceive she had transgressed and was still pleading not guilty;
(2)A finding was made that the Respondent continued contravening after the Contempt Application had been filed;[4]
(3)The evidence in his affidavit filed 25 May 2023 establishes the alleged contraventions beyond reasonable doubt, and that the Court does not need to be satisfied that there was intent to contravene in quasi-criminal cases such as a contempt case; and
(4)The fourth element of causation is present in two forms. First, wasting the Court’s time and making the Court repeat the same order multiple times; and second, frustration and stress to him by spending time and writing repeatedly about the same need to disclose relevant information regarding the property proceedings.
[4] Perica & Perica (No 2) [2023] FedCFamC2F 1010 at [42].
The Applicant then added that the operation of s 112AP of the Family Law Act 1975 (Cth) (“the Act”) should not be limited to contravention of court orders, but ought to also capture failures to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). While accepting that contempt pursuant to s 112AP of the Act was confined to contravention of court orders, he said that the Court ought to consider the Respondent’s conduct in non-compliance with the Rules relating to disclosure of financial documents as relevant to the penalty/sentence.[5]
[5] Transcript of proceedings dated 25 August 2023 on page 11.
When invited to address what consequential sanction should be ordered, he submitted it should follow that if the Court was satisfied there had been one or more contraventions of court orders which constituted a flagrant disregard of the Court’s authority, then a period of imprisonment ought to be imposed. The Applicant made a detailed and mathematical submission, and forwarded an email to my Chambers setting out the period of imprisonment he sought based on methodology he said should apply.[6]
[6] Emailed to the Court on 26 August 2023.
In conclusion, the Applicant submitted that all 17 alleged contraventions had been established and the penalty to be imposed ought to be 42 weeks’ imprisonment.
THE RESPONDENT’S POSITION
Counsel for the Respondent submitted that the contempt application should be dismissed, essentially because all four elements of each of the 17 contraventions alleged were not satisfied beyond reasonable doubt. He referred to the authorities of Ganem & Ganem (No 2) [2013] FamCA 257 and Oakley & Millar [2019] FamCAFC 12.
Referring to the first element of knowledge of the order, Counsel submitted that I had touched on this in the reasons for judgment delivered 11 August 2023. He then referred to the meaning of “contravene an order” provided in s 112AB of the Act, being:
(1)A person shall be taken, for the purposes of this part, to have contravened if, and only if:
(a) where a person who is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
[…]
Counsel also highlighted the Full Court’s reasoning in Stradford & Stradford [2019] FamCAFC 25 that it was difficult to envisage a case where failure to comply with procedural obligations for disclosure of documents could amount to a flagrant challenge to the authority of the Court. However, he also conceded that the Rules themselves provide that non-disclosure may amount to contempt.[7]
[7] Rule 6.17(a)(ii) of the Rules.
Ultimately, Counsel for the Respondent emphasised that:[8]
… this court has consistently declined to make a finding of a flagrant challenge in cases involving what I would describe as a mere or run-of-the-mill type of contravention that would, otherwise, be dealt with by the contravention provisions of the Act.
[8] Transcript of proceedings dated 25 August 2023 on page 17 from line 29.
Addressing the timeframe of an established non-compliance and where it was “run-of-the-mill” or “flagrant”, Counsel referred to Brasch J in Mason& Mason [2023] FedCFamC1F 18 at [38].
Counsel for the Respondent referred the Court to a number of further authorities as to the nature of a “flagrant” challenge being one which undermines the Court’s authority and its ability to do justice between the parties,[9] such as by transferring the parties’ assets beyond the reach of the Court or by preventing the implementation of final orders.
[9] Pitman & Hynes [2022] FedCFamC1F 188; Zamir & Zamir (2022) 65 Fam LR 612; Parrish & Gallejo (No 2) [2018] FCCA 2851.
Counsel then submitted that the evidence could not support a conclusion that the Respondent did a deliberate and intentional act that comprises the contempt charged. I sought clarification about this submission, enquiring if he was submitting that I should not draw an inference that the Respondent had knowledge of the orders and chose to ignore them or failed to comply. In response, he stated that the inference was not available on the evidence, noting the very high standard of proof.
Counsel submitted that there was no evidence the Respondent did not disclose the documents or refused them to disclose them. Instead, he submitted that the evidence makes plain that it simply took her time to produce all the required relevant documents.[10]
[10] Transcript of proceedings dated 25 August 2023 on page 20 from line 44.
As Counsel’s submissions unfolded in discourse I initiated, it became clear that the submission that there was no evidence that the Respondent had not disclosed the documents or refused to disclose them was dependent on the meaning of “contravene an order”. In particular, he submitted that the Court should not infer that she had not disclosed documents on the basis that the orders for disclosure were repeated at subsequent court events after the original Orders of 3 November 2021.
Counsel then made a submission that I should infer that there was an explanation for delay in disclosure. He submitted that the subsequent making of the order or extension of time to comply with it should not be inferred to be evidence of non-disclosure or refusal to disclose.[11]
[11] Transcript of proceedings dated 25 August 2023 on page 21 from line 8.
However, when pressed about this submission, Counsel then retracted and submitted: [12]
Some orders say that the order dated X, the time to comply at paragraph (a) of order (x) is extended. I think the inference can be drawn there.
[12] Transcript of proceedings dated 25 August 2023 on page 24 from line 5.
Ultimately, when I highlighted that it seemed to me that the issue was one of whether non-compliance with disclosure orders on a number of occasions over some months could, or should, be regarded as a flagrant disregard for the Court’s authority, Counsel agreed. He submitted:
I would say that there simply isn’t evidence that could support a finding to the requisite standard that the Respondent has intentionally failed to comply in relation to these disclosure orders, or made no reasonable attempt to comply with the order. And we say that each relevant document was eventually produced, and the production of those relevant documents was – demonstrates that any alleged failure to comply was not intentional, and it was just – it just took time. And, in any event, none of the charges can be – have been proved beyond a reasonable doubt.
Counsel submitted that there is no evidence of intention not to disclose and instead it just took the Respondent time to disclose. When asked where the evidence was about that, Counsel essentially agreed that it was something I should infer because there was an agreed balance sheet, and the Applicant agreed the documents were eventually provided. A failure to comply with a strict timeframe does not elevate to an act of contempt.
Addressing what consequential orders should be made if the Court found the allegations proved, Counsel submitted a good behaviour bond for no more than three months was appropriate as there were no past contraventions established against the Respondent.
EVALUATION OF EVIDENCE
On the basis of on the court record and the unchallenged evidence of the Applicant, I find as follows:
(a)On 3 November 2021, the Court made an order that within 21 days of receiving a written request for a document from another party, the first mentioned party must provide a copy of the requested documents to the extent that they are within the first-mentioned party’s power, possession or control;
(b)On 3 January 2022, pursuant to the 3 November 2021 Order, the Applicant requested specific documents, including copies of registration for Motor Vehicle 3 for which the Respondent was alleged to be paying registration, private health policies for specified period, a health care diploma, real estate documents relating to the sale of the matrimonial home and demonstrating it was put on the market, 2007 and 2008 family diaries, and payslips dated between late 2015 and late 2021;[13]
[13] Affidavit of the Husband filed 25 May 2023 at [11] and page 4 of Annexure C.
(c)Documents were provided on 8 January 2022 and the Applicant emailed a record of what had been received to the Respondent. The Respondent did not reply to this email;[14]
[14] Affidavit of the Husband filed 25 May 2023 at [12] and page 3 of Annexure C.
(d)On 20 January 2022, the Applicant requested specific documents from the Respondent pursuant to the 3 November 2021 Order, including the Respondent’s psychiatrist letter dated about 2012 and details of the gift from her mother in about 2014;[15]
[15] Affidavit of the Husband filed 25 May 2023 at [14] and page 5 of Annexure C.
(e)On 21 February 2022, a Senior Judicial Registrar made an order that:
The time for the parties to comply with orders (1), (2), (3) and (6) of the orders by [a] Judicial Registrar of the [sic] 3 November 2021 be extended to 4 May 2022.
(f)It can reasonably be inferred that, on 21 February 2022, the Respondent had not responded to or satisfied at least some of the requests by the Applicant for documents specified above, otherwise the Order would not have been made. At this time an Order was also made that in the event of continued allegations of non-compliance with the 3 November 2021 Order and requests for documents, the party alleging non-compliance was to provide particulars;
(g)On 11 April 2022, the Applicant again requested specific documents pursuant to the 3 November 2021 Order, being documents relating to the Respondent’s late father’s estate, including: [16]
[16] Affidavit of the Husband filed 25 May 2023 at [16] and page 6 of Annexure C.
(i)A will, if any;
(ii)Government valuation of real estates;
(iii)Bank account balances;
(iv)Superannuation or life insurance balances; and
(v)Any documents recording the nature of his estate.
(h)On 13 April 2022, a Senior Judicial Registrar made an order that by 22 April 2022 the parties file a case outline and minute of orders sought in respect of the hearing of an interim application listed on 26 April 2022.[17] The Applicant complied, the Respondent did not;[18]
[17] Court record.
[18] Court record.
(i)On 6 May 2022, the Applicant provided particulars of non-compliance according to the Order made on 21 February 2022 in writing to the Respondent’s solicitor Mr Foster;[19]
[19] Affidavit of the Husband filed 25 May 2023 at [17] and Annexure F.
(j)On 18 May 2022, a Judicial Registrar made an order for the Respondent to file an updated Financial Statement disclosing entitlements from her deceased father’s estate “at the earliest”.[20] It can be reasonably inferred that, at this time, the Respondent had not disclosed documents in accordance with the request referred to at subparagraph (g) above.
(k)On 18 May 2022, a Judicial Registrar made an Order for the parties to make a genuine offer to settle within 28 days of the conference held that day.[21] At the same time, she made an Order extending time for compliance with disclosure by 28 days;[22]
(l)On 1 June 2022, a Judicial Registrar made the usual standard orders for a Compliance and Readiness Hearing to be held before me on 15 August 2022. Order 3 required the parties to confer about the issues for determination by the Court and procedural preparation required for a final hearing;[23]
(m)On 24 July 2022, the Applicant wrote by email to the Respondent’s solicitor Mr Foster according to Order 3 made 1 June 2022.[24] He stated that he was available most of the time and asked that Mr Foster suggest a time and place to confer as required by Order 3 made on 1 June 2022.
(n)On 8 August 2022, Mr Foster replied to the Applicant’s email.[25] He did not provide a date/time and place to confer;
(o)On 9 August 2022, the Applicant again wrote to Mr Foster and proposed a conference, and he did not receive a reply;[26]
(p)On 20 September 2022, I ordered amongst other things that within 28 days the Respondent disclose and produce to the Applicant copies of specific documents and, if she maintained she did not have possession, custody or power of the specified documents, she was to file an affidavit stating whether the documents ever existed and if she had knowledge of what has become of them;[27]
(q)The Respondent did not provide access to the former matrimonial home for a building inspection, ordered on 20 September 2022, until after the 28 days after the period in which it ordered to occur;[28]
(r)On 2 November 2022, Respondent’s solicitor sent a letter which purported to have attached a number of documents within the description of Order 1 made 20 September 2022, but they were not attached as became evident at the trial management hearing I conducted on 12 July 2023;[29]
(s)The affidavit filed by the Respondent on 2 November 2022 in compliance with the order made on 20 September 2022, has not been shown to be false. None of the documents referred to in the affidavit have subsequently been shown to have been in the Respondent’s custody, possession, or power.
[20] Order 6 made 18 May 2022.
[21] Order 1 made 18 May 2022.
[22] Order 5 made 18 May 2022.
[23] Court record.
[24] Affidavit of the Husband filed 25 May 2023 at [18] and page 1 of Annexure G.
[25] Affidavit of the Husband filed 25 May 2023 at [19] and page 2 of Annexure G.
[26] Affidavit of the Husband filed 25 May 2023 at [20] and page 3 of Annexure G.
[27] Orders 1 and 2 made 20 September 2022.
[28] Affidavit of the Husband filed 25 May 2023 at [23].
[29] Perica & Perica (No 2) [2023] FedCFamC2F 1010 at 41].
DETERMINATIONS ABOUT ALLEGED CONTEMPT
By virtue of the Order made on 3 November 2021, the documents requested on 3 January 2022 (“the first request”) were initially to be provided by 24 January 2022 and the documents requested on 20 January 2022 (“the second request”) were initially to be provided by 10 February 2022. However, on 21 February 2022, an order was made extending time for providing the documents referred to in the first and second request until 4 May 2022.
The Respondent had only provided the private health documents for 2021 within the original timeframes. However, because an extension of time was granted for compliance, I cannot be satisfied beyond all reasonable doubt that the Respondent intentionally had not complied or had failed to make a reasonable attempt to comply.
By virtue of the Order made on 3 November 2021, the documents requested on 11 April 2022 were originally to be provided by 2 May 2022 (“the third request”). Because the Applicant wrote to the Respondent’s solicitor on 6 May 2022 about documents he had previously requested and had not received, I am satisfied that the Respondent had not provided the documents below by 6 May 2022:
(a)Relating to the Respondent’s father’s estate
(i)The will (if any);
(ii)A final assessment (if any);
(iii)A government valuation of real estates;
(iv)Bank account balances;
(v)Superannuation balances and/or life insurances; and
(vi)Any other documents recording the nature of his estate.
(b)Copies of the 2020/21, 2019/20 and 2018/19 taxation returns;
(c)Copies of the 2019/20 and 2018/19 taxation assessments;
(d)Registration papers of Motor Vehicle 3 to which the Respondent referred in her Financial Statement, and documents estimating its value;
(e)Pay advice slips from the O Company, starting from the late 2021 pay period to the date of the email, requested to confirm the Respondent’s responses to Questions 9, 19 and 20 of her Financial Statement filed 8 April 2022;
(f)The Respondent’s bank statements from October 2021 to the date of the email, requested to confirm the Respondent’s responses to Questions 9 and 12 of her Financial Statement filed 8 April 2022;
(g)Documents particularising the gift of $5,000 from the Respondent’s mother;
(h)Documents about the value of the Respondent's superannuation at commencement of cohabitation and separation; and
(i)A letter from the Respondent’s psychiatrist authored in 2012.
No further extensions of time were granted for the provision of the documents referred to at [27] of these reasons.
On 20 September 2022, I heard submissions in relation to the alleged continuing failure to disclose specific documents which were subject of various requests made up until that time. In doing so, I was satisfied that the documents listed in Order 1 of those Orders were likely relevant, had been requested previously, and had not yet been provided by the Respondent if they were in her possession, custody, or power.
On 2 November 2022, the Respondent filed and served an affidavit stating that she:
·Never had the documents described at Order 1(a) and 1(b), except for those in Order 1(b)(vi);
·Did not have registration papers for the Ford motor vehicle described at Order 1(j); and
·Had destroyed the documents referred to at Order 1(h).
As described in my reasons for judgment of 11 August 2023 at [41] to [42], documents referred to in my Order of 20 September 2022 other than those subject to the Respondent’s affidavit of 2 November 2022 had not been provided to the Applicant by the time of the trial management hearing on 12 July 2023. However, the Applicant confirmed at the start of the defended hearing on 24 July 2023 that he had received those documents, and so I infer that he received them sometime between 12 July 2023 and 24 July 2023.
I disagree with the contentions of Counsel for the Respondent referred to at [18] and [19] of these reasons. An order extending time for disclosure of documents or renewal of such an order would simply not be logically made if, at the time of the appearance before the Court, the documents had in fact been disclosed. Further, there was no evidence supporting his contentions and I am unwilling to make the inference suggested by Counsel. It would be tantamount to saying that court orders are made “by rote” illogically and do not address the circumstances as they are at the time of a procedural hearing.
I accept that the repeated making of the order may not demonstrate a refusal to disclose documents, but instead may simply indicate a delay in disclosing. However, the making of the repeated order does evidence non-disclosure at that point in time and in this case contrary to previous order. This is highly relevant to the issues I am to decide because the meaning of “contravene an order” includes making “no reasonable attempt to comply”.[30] Accordingly, I reject the submission by Counsel that contravention of an order within the meaning of s 112AB of the Act necessarily requires intentional failure to comply.
[30] Section 112AB(a)(ii) of the Act.
I am satisfied that the Respondent had knowledge of the Orders relating to provision of documents and which are alleged to have been contravened because it is something I am prepared to reasonably imply for the reasons referred to in my judgment dated 11 August 2023 at [50].
The above findings and reasons show that there was delay in providing documents which should have been disclosed by no later than 4 May 2022. The delay between the order for extension to 4 May 2022 and the provision of documents on 2 November 2022 is unexplained and lengthy in my view.
In the absence of evidence from the Respondent, there is also no evidence to demonstrate what attempts she made to comply with the Orders of the Court prior to 2 November 2022. Relevant and adverse inference can be drawn because the documents are typical of documents normally within a party’s possession, custody, or power. I am satisfied beyond reasonable doubt that the Respondent made no reasonable attempt to comply with Order 2 made 3 November 2021 until 2 November 2022, which was well after the extended timeframe for compliance.
The conclusion at [36] of these reasons captures the allegations numbered 3, 4, 5, 14, 15, 16, 19 in the current Contempt Application. The allegations are not separate contraventions as the Applicant alleged, rather there was continuing contravention by failure to disclose relevant requested documents for a period of about six months.
Addressing the period after 2 November 2022, the letter from Murdoch Clarke[31] evidences that the Respondent’s solicitor purported to comply with Order 1 of 20 September 2022 about two weeks after compliance was due, but did not enclose the documents required, except one.[32]
[31] Affidavit of the Husband filed 25 May 2023 at Annexure I.
[32] Affidavit of the Husband filed 25 May 2023 at [22] and Annexure I.
I infer from the content of the letter from Murdoch Clarke that the Respondent likely had provided to her solicitor the documents described in Order 1 made on 20 September 2022 which were in her possession, power, or control. The omission of all described documents is likely to have been due to error on the part of her solicitor or a staff member of Murdoch Clarke. Accordingly, I consider that the Respondent made reasonable attempts to comply with Order 1 made on 20 September 2022. The delay in compliance with the Order cannot be attributed to the Respondent personally and I am not satisfied that she contravened the order of 20 September 2022 either intentionally or by failure to make a reasonable attempt to comply.
Allegation 17 relates to alleged contravention of Order 6 made on 18 May 2022. The Order is expressed in terms which, in my view, are not enforceable because the meaning of “at the earliest” is imprecise, has subjective meaning and may depend on circumstances. Because the Order is vague and unenforceable, I am not satisfied beyond reasonable doubt that the Respondent contravened the order. Despite this, it must be recorded that at the Compliance and Readiness Hearing on 15 August 2022, I made an express Order for the updated Financial Statement to be filed and served within 7 days because the Financial Statement referred to in the Order of 18 May 2022 had not been filed and served.
Allegation 18 relates to a failure to make a genuine offer to settle under Division 4.2.2 of the Rules as required by Order 1 made on 18 May 2022. There is no evidence relating to this allegation and it is therefore not established beyond reasonable doubt.
Allegations 20 and 21 relate to alleged non-compliance with the procedural Orders made on 1 June 2022 in preparation for the Compliance and Readiness Hearing held on 15 August 2022. Although I have found that the Respondent did not confer in person with the Applicant,[33] I am satisfied that her solicitor’s actions satisfied what was required by the Order made by the Judicial Registrar. That is, on the basis that he sent the letter referred to as Annexure G of the Applicant’s affidavit filed 25 May 2023 and because there is no requirement for the conferring to be in person.
[33] [24(m)] to [24(o)] of these reasons.
I am not satisfied beyond reasonable doubt that the Respondent contravened Order 3 of 18 May 2022, including because proposed procedural orders appear to have been sent with the letter of 8 August 2022 and the Applicant does not state that he did not receive those.[34]
[34] Affidavit of the Husband filed 25 May 2023 at [19] and page 2 of Annexure G.
By Order 4 of 20 September 2022, the Respondent was required to give the Applicant access to the former matrimonial home to permit him to obtain a report about the state or condition of the property and an evaluation of costs required to make it marketable. Access was to be given within 28 days, namely by 18 October 2022.
The Respondent made this arrangement on 2 November 2022 and the inspection subsequently occurred on 15 November 2022.[35] In this instance, the delay in giving access is relatively short and I am prepared to accept that reasonable attempts were made to comply with the Order. I am not satisfied beyond reasonable doubt that the Respondent contravened the order because the arrangements were dependent on communication through Mr Foster.
[35] Affidavit of Applicant 25 May 2023 at [21].
CONCLUSION
The foregoing reasons and findings establish that the Respondent made no reasonable attempt to comply with Order 2 made 3 November 2021 until 2 November 2022. This represented a continuing contravention of a single order for a period of about six months.
The contravention of an order described at [46] of these reasons is not capable of being characterised as a flagrant challenge to the authority of the Court because:
·It was a continuing breach of a procedural order for disclosure of documents, and the Full Court of the Family Court has suggested that it will be a rare case where such a contravention would be characterised as such;
·The delay in disclosing the documents did not in fact prejudice the final hearing, but did have potential to do so and frustrate the Applicant’s preparation; and
·The continuing non-disclosure and the effect of it on the Applicant could be addressed satisfactorily by costs order.
The Contempt Application will be dismissed.
It is also worthy of making some remarks about the Applicant’s submissions regarding consequential orders if the Court had been satisfied that the Respondent was in contempt. The function of the Court on a contempt application is to promote the administration of justice and in family law proceedings, consistent with the legislative intent of the Act. Specifically, the function of the Court is not to unduly punish a party where there is not material disadvantage or adversity to a party or child.
The mathematical method of imposition of penalty suggested by the Applicant has no place in contempt proceedings in family law matters, in my view. Even in cases of contravention of orders that are a flagrant challenge to the authority of the Court, the consequence of the conduct should inform the nature of the consequential order made, not a formula which arbitrarily appoints a value of penalty units.
Further, the Court’s powers in contempt proceedings should ordinarily be used sparingly and exercised to deter blatant and capricious acts which set out to frustrate the ability of the Court to administer justice in a family law dispute or which harm or threaten to risk the well-being of a child.
The above remarks are not intended to convey that the Court condones non-compliance with orders of the Court. To the contrary, contempt proceedings have a role in deterring non-compliance and promoting the expectation that court orders should be obeyed. However, the nature of the order contravened and how or why is highly relevant to the Court being satisfied of contempt and what sanction should follow.
The remarks at [49] to [52] of these reasons are entirely consistent with many established authorities in this jurisdiction.[36]
[36] In the Marriage of Sahari (1976) 2 Fam LR 11,126; In the Marriage of Ibbotson and Wincen (1994) 18 Fam LR 164 at 176-9; In the Marriage of Tate (No 3) 30 Fam LR 427.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 20 December 2023
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