Stradford & Stradford

Case [2019] FamCAFC 25

FAMILY COURT OF AUSTRALIA

STRADFORD & STRADFORD [2019] FamCAFC 25
FAMILY LAW – APPEAL – CONTEMPT – Where the primary judge made a declaration that the husband was in “contempt” of orders made for the provision of full and frank disclosure – Where the primary judge ordered the husband to be sentenced to 12 months’ imprisonment – Where the husband appealed from the declaration and order and the wife supported the husband’s appeal – Where there was no factual foundation or requisite finding which justified any such declaration and order – Where the processes employed by the primary judge were so devoid of procedural fairness, and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the declaration and order for imprisonment to stand would be an affront to justice – Appeal allowed – Costs certificate issued to the husband.

Family Law Act 1975 (Cth) ss 112AA, 112AB, 112AG, 112AP
Federal Circuit Court of Australia Act 1999 (Cth) s 17
Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 19.02
Clampett v Attorney-General (Cth) (2009) 260 ALR 462; [2009] FCAFC 151
Hay v Hay (1998) FLC 92-819; [1998] FamCA 95
Jackson and Fordham (1995) FLC 92-561
Kendling & Kendling (Contempt) (2008) FLC 93-384; [2008] FamCAFC 154
Stevenson v Hughes (1993) FLC 92-363; [1993] FamCA 14
Tate and Tate (2002) FLC 93-107; [2002] FamCA 356
Tate and Tate (No 3) (2003) FLC 93-138; [2003] FamCA 112
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
APPELLANT: Mr Stradford
RESPONDENT: Ms Stradford
FILE NUMBER: BRC 3444 of 2017
APPEAL NUMBER: NOA 114 of 2018
DATE DELIVERED: 15 February 2019
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Strickland, Murphy & Kent JJ
HEARING DATE: 15 February 2019
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 6 December 2018
LOWER COURT MNC: [2018] FCCA 3890

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Bunning
SOLICITOR FOR THE APPELLANT: Crowley Greenhalgh
THE RESPONDENT: In person (via telephone)

Orders

  1. The appellant be granted leave to amend his grounds of appeal as contained in the Notice of Appeal filed 11 December 2018 to include new Grounds 11 and 12.

  2. The appeal from the orders made by Judge Vasta on 6 December 2018 is allowed.

  3. The Declaration made on 6 December 2018 be set aside.

  4. Order 1 of the Orders made on 6 December 2018 be set aside.

  5. There be no order as to costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).

  6. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

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AGLC
Stradford & Stradford [2019] FamCAFC 25
Case
[2019] FamCAFC 25
Decision Date

CaseChat Overview and Summary

The case of Stradford & Stradford involved a dispute between a husband and wife over financial matters following their separation. The wife was seeking a just and equitable financial adjustment, while the husband had been found in contempt for failing to comply with court orders regarding disclosure of financial information. The matter came before the court for sentencing regarding the husband's contempt. The central legal issues were whether the husband had genuinely attempted to comply with the court orders and if his actions constituted contempt warranting imprisonment. The court found that the husband had not made a genuine effort to comply with the orders and had deliberately obfuscated the disclosure of financial information. Consequently, the husband was sentenced to imprisonment for contempt.

The court's reasoning focused on the husband's deliberate non-compliance with court orders and his attempts to hinder the wife's ability to seek a fair financial adjustment. Despite the wife's submissions and offers to settle the dispute amicably, the husband refused to provide the necessary financial information, leading the court to conclude that his actions amounted to contempt. The court emphasised the importance of adhering to court orders and the consequences of non-compliance. The judge made it clear that the decision to sentence the husband to imprisonment was his alone, not a result of the wife's wishes, and stressed the necessity of respecting court orders to maintain the integrity of the judicial process. Ultimately, the court upheld the sentence of imprisonment for contempt.

Orders

Orders of the court

1.

The appellant be granted leave to amend his grounds of appeal as contained in the Notice of Appeal filed 11 December 2018 to include new Grounds 11 and 12.

2.

The appeal from the orders made by Judge Vasta on 6 December 2018 is allowed.

3.

The Declaration made on 6 December 2018 be set aside.

4.

Order 1 of the Orders made on 6 December 2018 be set aside.

5.

There be no order as to costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).

6.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As will next be seen, the wife was cut short by his Honour when she attempted to make further submissions about the husband not being sentenced to imprisonment. The transcript continues:[13][13] Transcript, 6 December 2018, p 8 ln 33 to the end of the transcript.[MS STRADFORD]: Sorry. No.HIS HONOUR: What’s - - -[MS STRADFORD]: Sorry. I said I don’t want him to go to - - -HIS HONOUR: I don’t care.[MS STRADFORD]: Okay.HIS HONOUR: This is - - - [MS STRADFORD]: It’s your decision.HIS HONOUR: This is my order.[MS STRADFORD]: Okay.HIS HONOUR: Not your order. You can’t come to a conclusion, so therefore it means that this is still on foot. If this matter is still on foot, he is in contempt. The only way he gets out of contempt is if this matter is not on foot any more. You said that it cannot be settled, that he will not give you what you think is just and equitable. Therefore, it’s still on foot. Therefore, he is in contempt. Therefore, I am going to deal with him for contempt. Okay. I’ve made that very, very clear. It’s not your decision; it’s my decision. You’re not the one that’s sending him to jail; I am. These are court orders and court orders need to be obeyed. Otherwise, what’s the use of making the court orders. I made it very clear in August 2018 exactly what would happen if there was no compliance with these orders. Now, it’s not your fault. You’re not the one who’s sentencing him to jail; I am. But he won’t settle justly and equitably with you, the matter is on foot. You understand it. This is not anyone’s fault but your own. Quarter to 12.…HIS HONOUR: All right. Okay. Now, [Mr Stradford], as I said to you at the beginning, Judge Turner found that you have been in contempt of the orders that I made on 10 August 2018. What is it that you want to say?[MR STRADFORD]: I’ve tried to provide - - -HIS HONOUR: You can take a seat, [Ms Stradford].[MR STRADFORD]: - - - whatever disclosure was asked of me within my means to do so and - - -HIS HONOUR: You understand that’s just rubbish. You understand what [Ms Stradford] has wanted from day 1. And that is to be able to see what money has come into your possession and what money has left your possession, because that way then she could come to this court and say, “I want a just and equitable financial adjustment and this is the basis upon which I want it.” You have done everything you can to obfuscate that. It is very easy for you to know what money you have got and where it has gone. And you have done absolutely nothing to assist the process and the orderly running of this court. Don’t tell me that you’ve tried. That is just not what has happened. You know that you could show this. You know that you could tell her exactly how much money has gone and where it has gone and what accounts have been done. You know exactly what money has gone into your gambling accounts and you just don’t want to tell her, because you don’t want to know the truth, because you don’t want her to be getting a fair, a just and equitable adjustment. That’s as plain as the nose on your face. So now tell me what is it that you say that I should do with you, having had Judge Turner find that you are in contempt of my orders.[MR STRADFORD]: I’m not in a position to know that, Judge. HIS HONOUR: You were warned by me in August 2018 that this was very serious. You’ve just thumbed your nose at it. All right. [MS STRADFORD]: Judge Vasta, can I just say a couple of things, please?HIS HONOUR: Well, I’m going to let you, but you’re not – this now doesn’t concern you. It’s over, as far as you’re concerned. You don’t play a part in this. But if you want to say something, in terms of mitigation, I will listen.[MS STRADFORD]: In regards to my affidavit, I just – I’ve now had some legal advice and I’ve got a couple of things I want to mention. I would request that the accounts are frozen on decision of this. I did send you an affidavit of evidence of forgery from [Mr Stradford] from the AAT, so I just do ask that the accounts are frozen, as I can’t trust now where [Mr Stradford] is going to put his money. The other thing is I have been out there and tried to make an offer with [Mr Stradford] just then. I offered him 100,000 – for him to pay 100,000 and take the car. I’m still in possession of his car. So I just wanted to bring up those two things, that I have tried to make property settlement. [Mr Stradford] believes he doesn’t owe me anything further. And I do request the accounts are stolen.HIS HONOUR: Yes. Yes. All right.[MS STRADFORD]: Thank you. That’s all.HIS HONOUR: Thank you. All right. Okay. Is there anything more you want to say, having heard what [Ms Stradford] has had to say, really, which is therefore in terms of mitigation in relation to what you’ve said, [Mr Stradford]?[MR STRADFORD]: No. [Ms Stradford] has asked if I could pay her out a sum of money, which I’m unable to do so. Of course I would have liked to have come to any arrangement that avoids this.HIS HONOUR: Well, you could have easily by actually doing what I ordered you to do. And don’t tell me “I tried”. Rubbish. I mean, that – you know, this is the only thing that you have from the [G Group] and from [the H Group]. My goodness gracious me. I didn’t come down in the last shower. I know exactly how you get those accounts. You haven’t tried. You haven’t done anything of the sort. Yes. You would have done anything you could have to avoid it. And that’s the strange thing, is you really don’t think that the court ever will jail you for contempt. You’re about to find that lesson is going to be a very hard one for you to learn. All right. If there’s nothing more then I will proceed. All right.JUDGMENT DELIVEREDHIS HONOUR: I will sign the warrant that will commit [Mr Stradford] to prison and the QPS officers will arrive soon to take him to prison. In the meantime, security, you will have to escort [Mr Stradford] to the cell downstairs to await the officers to come and take him to prison. All right. Thank you. We will adjourn.(As per original)

Ratio Decidendi

Legal Principle Established

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