STRADFORD & STRADFORD (No.2)

[2018] FCCA 3961

FEDERAL CIRCUIT COURT OF AUSTRALIA

STRADFORD & STRADFORD (No.2) [2018] FCCA 3961

Catchwords:

PRACTICE & PROCEDURE – Appeal – stay, pending an appeal – application granted.

Legislation:

Family Law Act 1975

Cases cited:

N/A

Applicant: MR STRADFORD

Respondent: MS STRADFORD

File Number: BRC 3444 of 2017

Judgment of: Judge Vasta

Hearing date: 12 December 2018

Date of Last Submission: 12 December 2018

Delivered at: Brisbane

Delivered on: 12 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Bunning

The Respondent appearing on her own behalf

ORDERS

1. That the Husband’s oral application for a Stay of Order 1 of the Orders of Judge Vasta dated 6 December 2018 is allowed.

2. That Order 1 of the Orders of Judge Vasta of 6 December 2018 is Stayed pending the outcome of the Appeal of that Order and Declaration A of the Orders of 6 December 2018

3. That pending the outcome of the Appeal, or further Order, the Husband be forthwith released from custody.

4. That the solicitors for the Husband may convey a copy of this Order immediately to the Queensland Corrective Services, the J Correctional Centre of the Queensland Police Service.

IT IS NOTED:

(A)That to avoid any confusion, the granting of the Stay of Order 1 of the Orders of Judge Vasta of 6 December 2018 means that the Order is no longer in effect as of today, 12 December 2018 and the Husband can be released from custody forthwith, pending the hearing of the Appeal of the Orders of 6 December 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 3444 of 2017

MR STRADFORD

Applicant

And

MS STRADFORD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 6 December 2018, I made an order that Mr Stradford was in contempt of orders that I had previously made on 10 August 2018. 

2. Specifically, I found him in contempt of order 3(a), (h), (j), (k), (l), (m), (n) and (o) of those orders.  I had actually not found him in contempt of orders 3(k) or 3(l), but had found him in contempt of the others. 

3. My reason for doing so was that I had been given a list with markings from Her Honour, Judge Turner.  My reasons for having made the orders on 10 August 2018 were to tell the Applicant husband that he needed to make this disclosure properly, especially since there had been previous orders for him to do so. 

4. My notation was that the matter would go back to a duty judge; but if the duty judge was of the opinion that the Applicant has not made full and frank disclosure in accordance with today’s orders, that he was to be dealt with for contempt of those orders. 

5. That was to allow that Court to then deal with the contempt, or, if the Court so chose, they could send the matter back to me and I would deal with the matter as a contempt of my orders. My very clear memory is that I had told the Applicant that he would be looking at two years’ imprisonment if I found that he was in contempt of my orders. 

6. What has been shown to me is that I could very well have been in error in assuming that Her Honour had actually found, by the markings that she had given to me, that the Applicant was prima facie in contempt of my orders.

7. Whilst I had read the affidavit of the Applicant that he had filed on 2 November 2018, the only matters that I had really gone through in any depth were the G Group accounts and the tax returns; that is, making a finding that the G Group accounts and the online gambling accounts had not been properly disclosed. I had been given the documents that the Applicant had disclosed and they were totally insufficient for the purposes of affording the wife knowledge of the financial circumstances of the husband. 

8. The husband had claimed that he had disclosed his tax returns but the fact was that he had not disclosed his tax returns; he had only disclosed his tax assessments and not his actual returns.

9. Those were the matters that I specifically highlighted as they were the matters that I felt were most illustrative of the contempt shown by the Applicant husband.  I did not feel the need to explore any other aspect further because I had, in effect, proceeded upon the basis that Her Honour had already made a finding of contempt. 

10. It seems, on the material, that this could well have been an incorrect assumption.  If that was an incorrect assumption, then it is an error by me not to have actually gone through with each and every item on that list and made a ruling as to whether the Applicant father was in contempt of my orders. 

11. To do that I would have had to have the Applicant sworn to give evidence and cross-examined upon the material.  I could have then used that actual sworn evidence to decide whether the contempt had actually occurred. But I proceeded straight to a “sentencing” proceeding because I was of the view that the issue of whether the Applicant husband was in contempt had already been decided.

12. It seems to me if that is also the conclusion that is reached by a Court of Appeal (and I think that it would be), then that Court would really have no hesitation in allowing the appeal and remitting the matter back to me. 

13. I have looked at the declaration that I made on 6 December 2018 and, after discussion with counsel, have come to the conclusion that I am functus officio with regard to that declaration.  I do not have the power to stay that declaration, even though I am of the view that it should be stayed.

14. However, I can stay the orders that I had made, especially the one that the Applicant be sentenced to a period of imprisonment of 12 months, but to be released after serving five months.  It seems to me that the basis upon which I made that order is almost certainly incorrect. Therefore, it would be totally unjust not to grant the relief that has been sought by the Applicant husband today. 

15. So, I will allow the oral application for a stay of order 1 sentencing the Applicant to imprisonment.  That order is stayed pending the outcome of the appeal of that order and declaration. 

16. I do note for the record, even though I am still not convinced that the Respondent wife need play any part in these contempt proceedings, but I do note that this order is something that she has asked the Court to make. I also note what it is that she has said; that if I were to make these orders, that she feels that she and the Applicant may actually now be able to settle this matter and that if the Court of Appeal were to allow the appeal, which I think they will do, it would not need to return to Court, other than for the issuing of consent orders on the property adjustment matter.  So I do note that.

17. I order that the Applicant forthwith be released from custody and that the solicitors can convey a copy of this order immediately to corrective services and the other authorities. 

18. I make an order in terms of the draft handed to me by Counsel. I make that notation as per draft order.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 13 February 2019