Senna and Aldenberg and Anor - [2018] FCCA 2711

FEDERAL CIRCUIT COURT OF AUSTRALIA

SENNA & ALDENBERG & ANOR

[2018] FCCA 2711

Catchwords:
FAMILY LAW – The Family Law Act 1975 (Cth) and related legislation – Contempt of court – Powers of court

COURTS AND JUDGES – Contempt – punishment and enforcement – punishment – order – nature of punishment – imprisonment.

Legislation:

Family Law Act 1975 (Cth) ss.67N(2), 1124AP(1)(b), 112AP(4), 112AP(6)

Cases cited:

Abduramanoski & Abduramanoski (2005) FLC 93-215
Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259
Kendling v Kendling(Contempt) (2008) FLC 93-384
Myers and Myers (2006) FLC 93-291
Tate and Tate (No.3) (2003) FLC 93-138

Witham v Holloway [1995] 183 CLR 525

Applicant:

MR SENNA

First Respondent:

MS ALDENBERG

Second Respondent:

MS ABRAHAM

File Number:

BRC 3467 of 2011

Judgment of:

Judge Jarrett

Hearing date:

3 August 2018

Date of Last Submission:

3 August 2018

Delivered at:

Brisbane

Delivered on:

3 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Keim SC

Solicitors for the Applicant:

Harrington Family Lawyers

Counsel for the First Respondent:

Mr Page QC

Solicitors for the First Respondent:

SBA (Shila Batenburg & Associates)

Solicitors for the Second Respondent:

Cooroy Legal Centre

ORDERS

UPON THE COURT FINDING that the first respondent, Ms Aldenberg is, upon entering her own plea of guilty and in the way specified in the contempt application filed on 31 January, 2018 in contempt of the orders made under the Family Law Act1975 (Cth) on 9 October, 2014

AND UPON THE COURT FINDING that the second respondent Ms Abraham is upon entering her own plea of guilty and in the way specified in the contempt application filed on 31 January, 2018 in contempt of the orders made under the Family Law Act 1975 (Cth) on 13 April, 2016

THE COURT ORDERS THAT:

Pursuant to s.112AP(4) of the Family Law Act 1975 (Cth), the first respondent, Ms Aldenberg, is sentenced to serve a term of imprisonment for a period of 18 months;
Pursuant to s.112AP(4) of the Family Law Act 1975 (Cth), the second respondent, Ms Abraham is sentenced to serve a term of imprisonment for six months, such imprisonment to be fully suspended after three months have been served;
To give effect to clauses (1) and (2) of this order, a warrant of commitment forthwith issue in the usual form in each case;
The respondent, Ms Aldenberg pay the applicant Mr Senna’s costs of and incidental to the contempt application filed on 31 January, 2018 to be assessed on the indemnity basis;
The respondent, Ms Abraham pay the applicant Mr Senna’s costs of and incidental to the application for contempt filed on 31 January, 2018 to be assessed on the indemnity basis.

IT IS NOTED that publication of this judgment under the pseudonym Senna & Aldenberg & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 3467 of 2011

MR SENNA

Applicant

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.

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Details

Case: [2018] FCCA 2711
Decision Date: 3 August 2018

CaseChat Overview and Summary

In the matter of *Senna and Aldenberg and Anor*, heard before Judge Jarrett, the applicant, Mr Senna, brought contempt proceedings against the first respondent, Ms Aldenberg, and the second respondent, Ms Abraham. The dispute concerned breaches of orders previously made under the *Family Law Act 1975* (Cth).

The court was required to determine whether Ms Aldenberg and Ms Abraham were in contempt of court, and if so, to impose appropriate penalties. Specifically, the court needed to consider the nature of the contempt and the sentencing powers available under the *Family Law Act 1975* (Cth), including the imposition of imprisonment.

Judge Jarrett found both respondents to be in contempt of court. Ms Aldenberg was found in contempt of orders made on 9 October 2014, and Ms Abraham was found in contempt of orders made on 13 April 2016. Applying the provisions of s.112AP(4) of the *Family Law Act 1975* (Cth), the court sentenced Ms Aldenberg to a term of imprisonment of 18 months. Ms Abraham was sentenced to six months imprisonment, with the final three months to be fully suspended. Warrants of commitment were ordered to issue forthwith to give effect to these sentences.

Furthermore, the court ordered that both Ms Aldenberg and Ms Abraham pay Mr Senna's costs of and incidental to the contempt application, to be assessed on the indemnity basis.

Orders

Orders of the court

UPON THE COURT FINDING that the first respondent, Ms Aldenberg is, upon entering her own plea of guilty and in the way specified in the contempt application filed on 31 January, 2018 in contempt of the orders made under the Family Law Act 1975 (Cth) on 9 October, 2014

AND UPON THE COURT FINDING that the second respondent Ms Abraham is upon entering her own plea of guilty and in the way specified in the contempt application filed on 31 January, 2018 in contempt of the orders made under the Family Law Act 1975 (Cth) on 13 April, 2016

THE COURT ORDERS THAT:

Pursuant to s.112AP(4) of the Family Law Act 1975 (Cth), the first respondent, Ms Aldenberg, is sentenced to serve a term of imprisonment for a period of 18 months;

Pursuant to s.112AP(4) of the Family Law Act 1975 (Cth), the second respondent, Ms Abraham is sentenced to serve a term of imprisonment for six months, such imprisonment to be fully suspended after three months have been served;

To give effect to clauses (1) and (2) of this order, a warrant of commitment forthwith issue in the usual form in each case;

The respondent, Ms Aldenberg pay the applicant Mr Senna’s costs of and incidental to the contempt application filed on 31 January, 2018 to be assessed on the indemnity basis;

The respondent, Ms Abraham pay the applicant Mr Senna’s costs of and incidental to the application for contempt filed on 31 January, 2018 to be assessed on the indemnity basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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