Sauter & Holt - [2024] FedCFamC1F 425

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Sauter & Holt [2024] FedCFamC1F 425

File number: BRC 968 of 2023

Judgment of: CAREW J

Date of judgment: 19 June 2024

Catchwords: FAMILY LAW – CONTEMPT – Where the wife filed an application for the husband to be dealt with for contempt pursuant to s 112AP – Where the wife alleges 13 contempts of an order and/or undertaking by the husband – Where the husband asserts he has no case to answer – Whether there was a flagrant challenge to the Court’s authority – Where the contempt application against the husband is dismissed with no order as to costs.

Legislation: Family Law Act 1975 (Cth) ss 112AP, 117

Cases cited:
Bande & Cade (2011) 45 Fam LR 376

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

Ibbotson and Wincen (1994) FLC 92-496

Oakley & Millar [2019] FamCAFC 12

Stradford and Stradford (2019) 59 Fam LR 194

Number of paragraphs: 18

Date of hearing: 19 June 2024

Counsel for the Applicant: Mr Fisher

Solicitor for the Applicant: Emmanuel Lawyers

Counsel for the First Respondent: Mr Lawrence

Solicitor for the First Respondent: HIS Lawyers

The Second Respondent: Appearance excused
ORDER

BRC 968 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SAUTER

Applicant

AND:
MR HOLT

First Respondent

MS GAJOS

Second Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

19 JUNE 2024

THE COURT ORDERS THAT:
1.The Contempt Application filed 14 February 2024 (amended 18 March 2024) be dismissed.
2.The first respondent be granted leave to make an oral application for costs of and incidental to the hearing of the Contempt Application filed 14 February 2024 (amended 18 March 2024).
3.The first respondent’s application for costs be dismissed and there be no order as to costs.
4.The Application in a Proceeding filed 8 August 2023 and the Contempt Application filed 16 February 2024 (amended 18 March 2024) be adjourned for mention, and the Initiating Application filed 29 January 2023 be adjourned for case management before a Registrar at 11.00am on 26 August 2024 by Microsoft Teams.
5.The hearing of the Contempt Application filed 16 February 2024 (amended 18 March 2024) listed for 20 June 2024 before the Honourable Justice Carew be vacated.
6.Costs of today in relation to the Contempt Application filed 16 February 2024 (amended 18 March 2024) be reserved.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sauter & Holt

Details

AGLC: Sauter & Holt [2024] FedCFamC1F 425
Case: [2024] FedCFamC1F 425
Decision Date: 19 June 2024

CaseChat Overview and Summary

Sauter and Holt were married and have children together. The wife filed an application for the husband to be dealt with for contempt under section 112AP of the Family Law Act 1975. She alleged that the husband had committed 13 separate instances of contempt of an order and/or undertaking by the husband. The husband argued that he had no case to answer and denied any contemptuous conduct. The case was heard by Justice Carew in the Family Court of Australia.

The court had to decide whether the husband had flagrantly challenged the court's authority by his conduct. The wife argued that the husband had breached the court's orders by engaging in conduct that undermined the court's authority and processes. The husband denied any contemptuous conduct and argued that he had acted in good faith and without malice. The court had to consider the evidence and determine whether the husband's conduct amounted to a flagrant challenge to the court's authority.

The court found that the husband's conduct did not amount to a flagrant challenge to the court's authority. The court noted that the husband had acted in good faith and without malice and that his conduct did not undermine the court's authority or processes. The court found that the wife's application for contempt was not well founded and dismissed the application. The court also dismissed the husband's application for costs.

The court dismissed the contempt application filed on 14 February 2024 and ordered that the first respondent be granted leave to make an oral application for costs of and incidental to the hearing of the Contempt Application. The court dismissed the first respondent’s application for costs and made no order as to costs. The court also adjourned the Application in a Proceeding filed on 8 August 2023, the Contempt Application filed on 16 February 2024, and the Initiating Application filed on 29 January 2023 for case management. The hearing of the Contempt Application listed for 20 June 2024 was vacated and costs of today in relation to the Contempt Application were reserved.

Orders

Orders of the court

1. The Contempt Application filed 14 February 2024 (amended 18 March 2024) be dismissed.

2. The first respondent be granted leave to make an oral application for costs of and incidental to the hearing of the Contempt Application filed 14 February 2024 (amended 18 March 2024).

3. The first respondent’s application for costs be dismissed and there be no order as to costs.

4. The Application in a Proceeding filed 8 August 2023 and the Contempt Application filed 16 February 2024 (amended 18 March 2024) be adjourned for mention, and the Initiating Application filed 29 January 2023 be adjourned for case management before a Registrar at 11.00am on 26 August 2024 by Microsoft Teams.

5. The hearing of the Contempt Application filed 16 February 2024 (amended 18 March 2024) listed for 20 June 2024 before the Honourable Justice Carew be vacated.

6. Costs of today in relation to the Contempt Application filed 16 February 2024 (amended 18 March 2024) be reserved.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	BRC 968 of 2023
Judgment of:	CAREW J
Date of judgment:	19 June 2024
Catchwords:	FAMILY LAW – CONTEMPT – Where the wife filed an application for the husband to be dealt with for contempt pursuant to s 112AP – Where the wife alleges 13 contempts of an order and/or undertaking by the husband – Where the husband asserts he has no case to answer – Whether there was a flagrant challenge to the Court’s authority – Where the contempt application against the husband is dismissed with no order as to costs.
Legislation:	Family Law Act 1975 (Cth) ss 112AP, 117
Cases cited:	Bande & Cade (2011) 45 Fam LR 376 Ganem & Ganem (No 2) [2013] FamCA 257 Ibbotson and Wincen (1994) FLC 92-496 Oakley & Millar [2019] FamCAFC 12 Stradford and Stradford (2019) 59 Fam LR 194
Number of paragraphs:	18
Date of hearing:	19 June 2024
Counsel for the Applicant:	Mr Fisher
Solicitor for the Applicant:	Emmanuel Lawyers
Counsel for the First Respondent:	Mr Lawrence
Solicitor for the First Respondent:	HIS Lawyers
The Second Respondent:	Appearance excused

BRC 968 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS SAUTER Applicant
AND:	MR HOLT First Respondent MS GAJOS Second Respondent

ORDER MADE BY:	CAREW J
DATE OF ORDER:	19 JUNE 2024