Polak & Polak (No 2)
[2025] FedCFamC1F 174
•14 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Polak & Polak (No 2) [2025] FedCFamC1F 174
File number(s): CAC 1719 of 2024 Judgment of: GILL J Date of judgment: 14 March 2025 Catchwords: FAMILY LAW – CONTEMPT – Contravention of Court order – Prima facie case – Where the order required the respondent husband to deliver an item – Where the item was not delivered – Whether each element of the offence is addressed – No prima facie case established – Convictions recorded for remaining counts where respondent husband entered pleas of guilty Division: Division 1 First Instance Number of paragraphs: 3 Date of hearing: 14 March 2025 Place: Canberra Counsel for the Applicant: Mr Whitfield Solicitor for the Applicant: Farrell Lusher Solicitors Solicitor for the First Respondent: Mr B Horne, BJH Lawyer Solicitor for the Second Respondent: Mr T Horne, Horne Legal ORDERS
CAC 1719 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS POLAK
Applicant
AND: MR POLAK
First Respondent
MR CLOTON
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
14 MARCH 2025
THE COURT ORDERS THAT:
1.Count one is dismissed.
2.I record convictions in respect of counts 2 through 11 of the amended application for contempt filed on 10 January 2025 on the entry of the husband’s pleas of guilty to each of those counts.
3.I adjourn the proceedings for sentencing in respect of contempt to 10 am on 24 April 2025, with such to be an in-person appearance.
IT IS NOTED THAT
A.The husband has advised the court that he will be able to purge his contempt in respect of count 2 by 4 pm on 28 March 2025.
IT IS FURTHER ORDERED THAT
4.I direct that should the husband wish to rely upon further evidential material in respect of the sentencing proceedings that he file and serve such by 4 pm on 17 April 2025.
5.The husband is released to appear in court on that day following having given an undertaking.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Polak & Polak, a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J:
These proceedings involve an allegation of contempt against the husband. That contempt relates to non-compliance with orders that imposed an obligation upon him to deliver Motor Vehicle 1 and associated keys to the solicitors for the wife. The husband contests that the wife has made out this matter at a prima facie level. The wife has adduced evidence of the making of the order that cast the obligation upon the husband, and has adduced evidence that the vehicle and the associated keys have not been delivered. That is the height of the evidence.
The husband submits that that evidence is not sufficient to make out a prima facie case. In assessing prima facie case it is necessary to remember that it is the case of the prosecutor that is taken at its highest, drawing all available inferences favourably to the prosecutor. In doing so it is necessary that such is capable of addressing each of the elements of the offence, which in broad terms here involve the presence of an order and intentional engagement in acts of non‑compliance, which together constitute a flagrant challenge to the authority of the court. The extent of the evidence here, while sufficient to show that there is an order by going to the record of the court, and while sufficient to show that the vehicle has not been delivered, is insufficient to do so.
In some cases the mere fact of non-compliance will be sufficient to deal with, at least at a prima facie level, the issues of intent and flagrant challenge, but that turns upon the circumstances of each case and the inferences that are available to be drawn. In many cases those circumstances will mean that such inferences are available. This, however, is not one of them, so I find that there is no prima facie case to be answered by the husband in respect of count one.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 19 March 2025
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