Stubbs & Stubbs - [2025] FedCFamC1F 98

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stubbs & Stubbs [2025] FedCFamC1F 98

File number: MLC 7164 of 2023

Judgment of: MCGUIRE J

Date of judgment: 25 February 2025

Catchwords: FAMILY LAW – CONTEMPT – Where the husband filed an application for the wife to be dealt with for 16 counts of contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) – Where the husband prosecutes nine alleged contempts of an order and/or undertaking by the wife – Where the wife asserts she has no case to answer – Whether there was a flagrant challenge to the Courts authority – Where the Contempt Application against the wife is dismissed

Legislation:
Family Law Act 1975 (Cth) s 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.17 and 11.71(2)

Cases cited:
Ganem & Ganem (No 2) [2013] FamCA 257

Ibbotson & Wincen [1994] FamCA 103; (1994) FLC 92-496

M & M (1990) FLC 92-106

Oakley & Millar [2019] FamCAFC 12

Skouvakis v Skouvakis (1976) 1 FLR 11,516

Wilkins & Currie [2017] FamCA 323

Wynn & Danilov [2023] FedCFamC1A 149

Heydon J.D, Cross on Evidence (LexisNexis, 12th ed, 2020) ch 6

Division: Division 1 First Instance

Number of paragraphs: 53

Date of hearing: 5 and 6 February 2025

Place: Melbourne

Solicitor for the Applicant: Litigant in Person

Counsel for the Respondent: Mr Schmidt

Solicitor for the Respondent: Landers & Rogers
ORDERS

MLC 7164 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR STUBBS

Applicant

AND:
MS STUBBS

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

25 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The Application for Contempt filed by the applicant husband, Mr Stubbs, on the 25 November 2024 be dismissed.

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 the pseudonym of Stubbs & Stubbs has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J:
APPLICATION

Mr Stubbs (“the husband”) is an applicant for Ms Stubbs (“the wife”) to be dealt with for contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”).
The husband’s Application sets out 16 separate counts of alleged contempt. Following lengthy argument as to objections taken by counsel for the wife to the husband’s…

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 Stubbs & Stubbs

Details

AGLC: Stubbs & Stubbs [2025] FedCFamC1F 98
Case: [2025] FedCFamC1F 98
Decision Date: 25 February 2025

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 1, presided over by McGuire J, dealt with an application for contempt filed by Mr. Stubbs against Ms. Stubbs. The husband, Mr. Stubbs, filed the application for contempt under section 112AP of the Family Law Act 1975 (Cth), asserting that Ms. Stubbs had committed 16 counts of contempt. The husband alleged that Ms. Stubbs had made false statements and had otherwise acted in defiance of court orders or undertakings. Ms. Stubbs argued that she had no case to answer, and that the allegations did not constitute a flagrant challenge to the court's authority.

The court was required to determine whether the husband had successfully established the elements of contempt as outlined in the Family Law Act. This included determining if there was a deliberate defiance of a court order or undertaking, as opposed to a mere contravention of such orders. The court examined each of the 16 counts, assessing whether they met the threshold for contempt and if the husband had demonstrated the necessary mental element. The court found that many of the counts did not properly allege facts that amounted to contempt, and that the husband had generally failed to address the mental element required to prove contempt.

McGuire J dismissed the application for contempt, concluding that Ms. Stubbs had no case to answer on the remaining counts. The court noted that the husband, as a litigant in person, would have benefitted from experienced legal advice in this complex area of the law. The court highlighted the distinction between an application for contempt and a contravention of court orders, emphasising the exceptional nature required for a contravention to be considered contempt. The dismissal was also influenced by the husband's failure to adequately plead the mental element of the alleged contempts.

The court made an order dismissing the application for contempt filed by Mr. Stubbs against Ms. Stubbs. The order specified that the application, filed on 25 November 2024, be dismissed. The form of the order was subject to entry in the Court’s records, and any minor typographical or grammatical errors could be reviewed or corrected under the relevant rules. This judgment underscores the importance of precise pleading and the necessity of understanding the distinctions in family law applications.

Orders

Orders of the court

MLC 7164 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR STUBBS

Applicant

AND:

MS STUBBS

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

25 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The Application for Contempt filed by the applicant husband, Mr Stubbs, on the 25 November 2024 be dismissed.

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

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Decision

Reasons for decision

Count 16 alleges that on 3 August 2023 the wife made a false statement in respect of the children’s accommodation. Again, such an assertion may properly be the province of cross‑examination. A disputed fact does not amount to Contempt when the resolution of disputes of fact are the very stuff of a trial court. In any event, this count suffers similar to count 15 in alleging a fraudulent statement on 3 August 2023 but where the allegation apparently relates to 2 August 2023. That ambiguity, in itself, offends the requirement for precise particularisation. The wife has no case to answer.CONCLUSION I conclude, therefore, that on the remaining counts pressed and prosecuted by the husband, the wife has no case to answer. By way of comment, it is unfortunate that the husband as a litigant in person did not receive informed and experienced advice as to the nature and context of bringing an Application for Contempt. The difficulties in pleading his counts reflect the husband’s lack of legal training and legal advice in what is a complex area of the law. Further, where there is a requirement for the husband to prove the mental element of the wife’s alleged contempts, he generally fails to address these elements. Even more generally, the husband’s assertions fit more properly in provisions in the Act providing for contraventions of court orders and as succinctly put by my colleague Johns J in Wilkins & Currie[9] at [23] as follows: An Application-Contempt is distinct from a contravention application. In order to establish a contempt, I need be satisfied that there has been a deliberate defiance of a court order, as distinct from a breach of a court order. …[9] [2017] FamCA 323. The husband would have been better guided by the comments of various superior courts including the Full Court in Oakley & Millar cited above in these Reasons at [10] emphasising the “exceptional or striking nature” of a contravention being a Contempt with the obvious distinction or requirement being the “flagrant challenge” to a Court’s authority.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	MLC 7164 of 2023
Judgment of:	MCGUIRE J
Date of judgment:	25 February 2025
Catchwords:	FAMILY LAW – CONTEMPT – Where the husband filed an application for the wife to be dealt with for 16 counts of contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) – Where the husband prosecutes nine alleged contempts of an order and/or undertaking by the wife – Where the wife asserts she has no case to answer – Whether there was a flagrant challenge to the Courts authority – Where the Contempt Application against the wife is dismissed
Legislation:	Family Law Act 1975 (Cth) s 112AP Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.17 and 11.71(2)
Cases cited:	Ganem & Ganem (No 2) [2013] FamCA 257 Ibbotson & Wincen [1994] FamCA 103; (1994) FLC 92-496 M & M (1990) FLC 92-106 Oakley & Millar [2019] FamCAFC 12 Skouvakis v Skouvakis (1976) 1 FLR 11,516 Wilkins & Currie [2017] FamCA 323 Wynn & Danilov [2023] FedCFamC1A 149 Heydon J.D, Cross on Evidence (LexisNexis, 12th ed, 2020) ch 6
Division:	Division 1 First Instance
Number of paragraphs:	53
Date of hearing:	5 and 6 February 2025
Place:	Melbourne
Solicitor for the Applicant:	Litigant in Person
Counsel for the Respondent:	Mr Schmidt
Solicitor for the Respondent:	Landers & Rogers

MLC 7164 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR STUBBS Applicant
AND:	MS STUBBS Respondent

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	25 FEBRUARY 2025