Sauter & Holt
[2024] FedCFamC1F 425
•19 June 2024
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 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
This is an application by the wife for the husband to be dealt with for contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”).
Contempt of court under this section is found in Part XIIIB of the Act and applies to a contempt that:
a.does not constitute a contravention of an order under this Act; or
b.constitutes contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
The wife is relying upon s 112AP(1)(b), that is, that there has been a contravention of an order that involves a flagrant challenge to the authority of the Court.
There is a preliminary challenge to the wife's application by the husband, who submits that as the wife cannot establish that the contraventions, even if proved, represent a flagrant challenge to the authority of the Court, he has no case to answer and that the application that he be dealt with for contempt should be dismissed.
The wife's Contempt Application filed 14 February 2024 (amended 18 March 2024) alleges that the husband has contravened paragraphs 26(b), 26(d), 24(c)(iv) of the Order made 8 March 2023 as amended on 28 March 2023 relating to disclosure, and by breaching an undertaking given to the Court on 25 July 2023 by withdrawing two sums, approximately $16,000 and $14,000 respectively, on the day the undertaking was given to the Court. Although, it is conceded by the wife that the timing of the transactions, that is, whether before or after the giving of the undertaking, cannot be established.
The relevant paragraphs of the Order are set out below:
24.Within 14 days of the date of these Orders, each party must exchange with each other party a copy of each of the following documents (to the extent such documents have not already been provided):
…
c. any documents which:
iv.detail the party’s acquisition or disposal of property for the period from 12 months prior to the date of separation to the date of these Orders;
…
26. …
b.The Respondent’s all personal bank accounts both in Australia and in B Country including the following NAB bank account;
i. BSB: … & …93;
ii. BSB: 0… & ACC.No: …19
…
d.Any other investment bank accounts in Australia and in Country B;
The undertaking is in the following terms:
That pending the final resolution of the current family law proceedings BRC968/2023 or until otherwise agreed by the parties to the proceedings in writing. I will not encumber, transfer, sell or otherwise dispose of the any matrimonial assets referred to in paragraph 61 of the Respondent Husband's affidavit sworn 14 July 2023 and filed in these family law proceedings, or any other bank accounts in Australia or overseas, in which I have an interest, other than in the ordinary course of business.
The wife alleges 13 separate "contempts" which are set out below:
Date of Contempt Contempt of Alleged contempt 1. 08.03.23 – 22.03.23 (each day) at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 26(b) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 26. b, the Respondent failed to disclose the C Bank statement (BSB: …, Account number: …60) for the period 1 July 2022 – 22 March 2023. 2. 08.03.23 – 22.03.23 (each day) at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 26(b) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 26. b, the Respondent failed to disclose the C Bank statement (BSB: …, Account number: ...39) for the period 1 July 2022 – 22 March 2023). 3. 08.03.23 – 20.07.23 (each day) at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 26(b) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 26. b, the Respondent failed to disclose the NAB bank statements (BSB …, Account number …81) for the period 8 March 2023 – 20 July 2023. 4. 08.03.23 – 25.07.23 (each day) at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 26(b)(i) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 26. b.i, the Respondent failed to disclose the CBA bank statement (BSB: …; Account number …33) for the period 1 November 2022 – 25 July 2023 (each day). 5. 08.03.23 – 25.07.23 (each day) at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 26(b) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 26. b, the Respondent failed to disclose the ANZ bank statements for account number …46 BSB … for the period of 02 November 2022 – 25 July 2023 (each day). 6. 17.04.23 – 25.07.23 (each day) at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 26(d) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 26. d, the Respondent failed to disclose his NAB bank statements (BSB …, Account number …88) for the period 17 April 2023 – 25 July 2023. 7. 06.01.23 at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 24(c)(iv) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 24.c.iv, the Respondent failed to provide the Applicant with any documents which detail the disposal by the Applicant of $120,500.00 (being “property” within Order 24.c.iv). 8. 08.03.23 at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 24(c)(iv) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 24.c.iv, the Respondent failed to provide the Applicant with any documents which detail the disposal by the Applicant of $314,338.43 (being “property” within Order 24.c.iv). 9. 07.03.23 at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 24(c)(iv) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 24.c.iv, the Respondent failed to provide the Applicant with any documents which detail the disposal by the Respondent of $228,225.56 on 7 March 2023 (being “property” within Order 24.c.iv). 10. 25.07.23 at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 24(c)(iv) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 24.c.iv, the Respondent failed to provide the Applicant with any documents which detail the disposal by the Respondent of $149,224.75 on 25 July 2023 (being “property” within Order 24.c.iv). 11. 01.09.23 at 10.00am Order dated 8 March 2023 (amended 28.03.23), order 24(c)(iv) Contrary to Order 8 March 2023 (amended 28 March 2023), in particular Order 24.c.iv, the Respondent failed to provide the Applicant with any documents which detail the disposal by the Respondent of $49,075.93 on 1 September 2023 (being “property” within Order 24.c.iv). 12. 25.07.23 at 10.00am Order A (Undertaking) on 25 July 2023 Contrary to Order A (Undertaking) on 25 July 2023, the first Respondent failed to comply with his undertaking to the Court by withdrawing $16,781.77 from his CBA personal bank account on 25 July 2023. 13. N/A (potentially cut off on page or not included) Order A (Undertaking) on 25 July 2023 Contrary to Order A (Undertaking) on 25 July 2023, the first Respondent failed to comply with his undertaking to the Court by withdrawing $14,137.46 from his ANZ personal bank account on 25 July 2023.
It is not in dispute that in order to establish a flagrant challenge to the Court's authority, the test to be applied is as expressed by the Full Court in Ibbotson and Wincen (1994) FLC 92-496 (“Ibbotson”), which was affirmed by the Full Court in Oakley & Millar [2019] FamCAFC 12, where the Court stated at 81,162:
The use of the term "flagrant challenge" to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s. 112AD.
In the ultimate, it is a question of fact and degree whether the stringent terms of section are satisfied, bearing in mind, as was pointed in Basic and Newman (1992) FLC 92-297 that it is usually more appropriate to use s. 112AD.
In Stradford and Stradford (2019) 59 Fam LR 194 at [68], the Full Court said:
It is difficult to envisage a case where failure to comply with orders for disclosure could be said to involve a flagrant challenge to the authority of the Court or where an established failure to fully disclose could be other than a contravention covered by Pt XIIIA of the Act and not Pt XIIIB.
The wife submits that it is the "repeated nature of the alleged" contempts which support the description of flagrant challenge to the authority of the Court. There is no suggestion, of course, that the husband has previously been dealt with for contravening an order. Reliance is placed on the quote in the husband's outline from Ganem & Ganem (No 2) [2013] FamCA 257 at [11], where Aldridge J cited the Full Court in Bande & Cade (2011) 45 Fam LR 376 at 393, where it was said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature.
And his Honour then goes on to then quote Ibbotson.
The wife contends that because she alleges repeated contraventions of the same Order, this would be sufficient to fall within the relevant section. Separately, the wife submits that even if the "contempts" numbered 1 to 11 do not amount to flagrant challenges, the breach of the undertaking on the same day as the undertaking was given represents a flagrant challenge to the Court's authority. As already noted, the wife cannot establish when on 25 July 2023 the transactions occurred.
I reject the submissions of the wife that, on the facts of this case, the alleged contraventions of the Order and/or alleged breach of the undertaking are in any way striking or exceptional. The fact that the wife has alleged repeated contraventions within her application, or withdrawals from a bank account on the same day as the undertaking when it cannot be established whether the withdrawals occurred before or after the undertaking, do not, in my view, fall within the description of a flagrant challenge the Court's authority. I dismiss the Contempt Application filed 14 February 2024 (amended 18 March 2024).
Application for costs
There is an application by the husband, as a result of my dismissal of the Contempt Application brought by the wife, in which he seeks costs to be assessed on the basis that, given the quasi-criminal nature of the application and the wife having been wholly unsuccessful, costs should follow the event. Costs are opposed by the wife.
Of course, under s 117 of the Act costs do not follow the event as each party should generally bear their own costs in proceeding in this Court, save that the Court has a general discretion in appropriate circumstances to order costs where it is just to do so.
The wife submits that costs in this case are not warranted in circumstances where, although she was unsuccessful in her contempt application, the consequence of bringing the application has resulted in the respondent, very late in the day, complying with his obligations as created by the Order of 8 March 2023, as set out in paragraphs 10, 12, 13, 14 and 15 of the affidavit filed by him only yesterday, which establishes that many of the documents which the wife was seeking and which the husband was obligated to provide were only supplied yesterday. In those circumstances, I dismiss the application for costs.
Contempt Application against the second respondent
It is agreed between the applicant and the second respondent that the Contempt Application filed 16 February 2024 (amended 18 March 2024) as against the second respondent will be adjourned for mention before a registrar on the same date that the Application in a Proceeding filed 8 August 2023 is listed for mention, and the substantive proceedings will also be listed for further case management generally.
The hearing on 20 June 2024 is vacated.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 27 June 2024
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