Stubbs & Stubbs
[2025] FedCFamC1F 98
•25 February 2025
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 affidavit affirmed 8 November 2024, counts 5, 10, 11 and 13 were no longer prosecuted by the husband. Further, during final submissions the husband conceded or withdrew counts 7, 8 and 14. Consequently, he now prosecutes counts 1, 2, 3, 4, 7, 9, 12, 15, and 16.
The husband represents himself on the Application. The wife defends each of the counts prosecuted and is represented by counsel and instructing solicitors.
Where there are substantive issues as to parenting and property remaining listed for final trial in this matter, the orders the subject of the Application are interlocutory or interim.
After dealing with the numerous objections to the husband’s affidavit and the husband giving evidence and being cross-examined, counsel for the wife argued that the wife has no case to answer and that the application should therefore be dismissed without the wife being required to elect as to whether to give evidence.
The remaining counts are particularised in the Application as follows:
·Count 1: Non-disclosure and fraudulent Undertaking as to Disclosure (violation of 16/04/24 and 15/08/23 Orders and of the Rules) in that the wife made and signed an Undertaking as to Disclosure on 22/07/24 “despite no material disclosure having been provided…” and further particularised as failure to disclose a financial year 2023 tax return; documents in respect of a Town B property; and hardship applications with the Westpac Banking Corporation.
·Count 2: Non-disclosure and no Undertaking as to Disclosure (Orders 15 August 2023) on 21/09/2023 particularised as not providing disclosure and not filing an Undertaking to Disclosure by 21 September 2023 nor affidavit pursuant to Order (27)(b) of Orders of 15 August 2023.
·Count 3: On 25/07/2024 at 4:31pm in Melbourne that the wife in collusion with her lawyers, contravened Order 16(c) of the Orders of 16 April 2024 by filing a fraudulent Certificate of Readiness certifying that she had complied with all relevant orders and directions of the Court and had provided disclosure “in accordance with PART 6.1 of the rules”.
·Count 4: That on 17 April 2024 to date at Melbourne and pursuant to Division 13A, the wife breached Order 3 of 16 April 2024 in that:
the [wife] confiscated the children’s communication devices and logged them out of their Skype account and prevented them from contacting [the husband] despite the children’s express documented wishes.
·Count 8: That on 27 May 2024 at Melbourne contrary to Division 13A breach of child-protection order (non-denigration Order 16/04/24) the wife contravened Order 11(a) of the 16 April 2024 Orders by denigrating the other parent to or in the presence of the children.
·Count 9: That on 28 March 2024 at Melbourne the wife:
obstructed the administration of justice in that [the wife] pressured the Single Expert Witness to not read, or otherwise interfered with the expert’s ability to read, [the husband’s] Notice of Risk and succeeded in inappropriately controlling the information that the Court-appointed expert was able to see and consider and undermined the expert’s ability to perform her duty to the Court. In doing so, [the wife] contemptuously undermined the due process itself and obstructed the administration of justice.
·Count 12: That on 1 September 2023 to date at Melbourne there was ongoing non‑disclosure by the wife in respect of a Town B property contrary to Order 6(h) of Orders of 15 August 2023.
·Count 15: That on 10 April 2024 at 3:47pm at Melbourne the wife made a false statement in an affidavit filed 10 April 2024 in respect of the timing of her learning about loans advanced to the parties by the parties’ aunt.
·Count 16: That on 3 August 2023 at 8:34am at Melbourne the wife made a false statement in respect of the accommodation of the children during the time they were in the husband’s care in May 2023.
RELEVANT LAW
A no case submission is where an application is made for a verdict by direction that there is no evidence on which a properly directed trier of fact would be entitled to find the material facts of the claim proved to the requisite standard of proof or, that the evidence is so weak or so unsatisfactory that it should not be accepted.[1]
[1] Heydon J.D, Cross on Evidence (LexisNexis, 12th ed, 2020) ch 6.
Part X11B of the Act deals with Contempt where s 112AP states:
(1)Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
…
Relevantly, where an Application for Contempt in this jurisdiction carries traits similar to the criminal law not least being that the standard of proof is the higher one of “beyond a reasonable doubt”, the application of no case to answer is based on there being no evidence upon which a jury could lawfully convict.[2]
[2] Heydon J.D, Cross on Evidence (LexisNexis, 12th ed, 2020) ch 6.
In respect of the second limb of s 112AP(1) where an onus sits on the applicant to establish a “flagrant” challenge to the Court’s authority, the Full Court in Ibbotson & Wincen,[3] and affirmed by later Full Court in Oakley & Millar,[4] said 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 the 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.
(Emphasis added)
[3] [1994] FamCA 103; (1994) FLC 92-496.
[4] [2019] FamCAFC 12.
Many of the counts prosecuted by the husband reference failure to disclose and/or “fraudulent” undertaking as to disclosure where the husband relies on the Rules of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as to disclosure which at Rule 6.17 states as to consequences of non-disclosure:
If a party does not disclose a document as required by these Rules:
(a) the party:
(i)must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission; and
(ii)may be guilty of contempt for not disclosing the document; and
(iii)may be ordered to pay costs; and
(b) the court may stay or dismiss all or part of the party’s case.
In this respect the Full Court in Wynn & Danilov[5] commented:
64.It appears to us that, properly construed, s 112AP(1)(a) of the Act may not embrace a contempt of court which arises by a failure to comply with the Rules, as opposed to a breach of an order of the Court. Certainly, in relation to breach of an order for disclosure, in Stradford & Stradford (2019) FLC 93-888 the Full Court said:
68.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 Part XIIIA of the Act and not Part XIIIB…
65.By parity of reasoning, it is also difficult to envisage how a failure to comply with the disclosure duty imposed by the Rules could constitute a contempt of court, intended to fall within s 112AP(1)(a) of the Act.
66.Rather the subparagraph should be construed to be limited to contempts constituted by defiant or contumacious conduct, such as conduct intended to scandalise the Court and interfere with the proper administration of justice, but not involving a Court order. However, there are clearly indications to the contrary in the Rules themselves. But even if a breach of the duty of disclosure imposed by the Rules could fall within s 112AP(1)(a) of the Act the breach would still have to meet the severe standard of being “so blatant, so defiant of the authority of the judiciary as a whole, and so calculated to undermine public confidence in the court’s capacity to protect and enforce their rights” (M & M [2004] at [24]) as to justify a finding of contempt, even if it was unnecessary to find it was contumacious (See English and English (1986) FLC 91-729 at 75,294; Bande v Cade (2011) 45 Fam LR 376 at [118]–[120]).
[5] [2023] FedCFamC1A 149.
It is clear that any application for contempt pursuant to s 112AP of the Act with its criminal traits and procedure such as a standard of proof of beyond reasonable doubt, imposes strict requirements for personal service, and precision of particularisation of the allegation. Noted at Rule 11.71(2) as follows:
An application must:
(a) be in accordance with the approved form; and
(b) state the contempt alleged; and
(c) be supported by an affidavit setting out the facts relied on.
Example:For the purposes of paragraph (2)(c), if a person alleges, in an Application—Contempt, that a party is in contempt because of a contravention of an order that involved a flagrant challenge to the court’s authority (see subsection 112AP(1) of the Family Law Act), the affidavit must set out the alleged facts necessary to prove this.
The above Rules are supported by a long line of authority including Street CJ in Skouvakis v Skouvakis[6] who relevantly and succinctly noted:
Due observance of these Rules is of no little importance. It has long been recognized that to deprive a subject of his liberty for contempt of court, particularly in summary proceedings, is a serious step and it is one which should be attended by full regard for form and regularity. …
[6] (1976) 1 FLR 11,516 at 11,518.
The context of a contempt application and its relation to one for mere contravention of a court order is noted by the Full Court in M & M[7] opining that the power to convict for contempt should be “sparingly used and jealously watched” and “exercised only in rare cases where there is no other remedy to preserve the dignity of the Court and protect the public”.
[7] (1990) FLC 92-106 at 77,079.
In Ganem & Ganem (No. 2)[8] Aldridge J helpfully sets out the relevant principles in a Contempt Application as:
[8] [2013] FamCA 257.
10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195; (2002) FLC 93-107).
11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)
•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75, 294)
•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend (sic) to do the act which is alleged to be the contempt. In the Marriage of English, above.
•The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” … 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 a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.
(Emphasis added)
CONSIDERATION
Firstly, there is no evidence before me of previous breaches of court orders or of the Rules by the wife albeit that in one or more of the counts alleged the husband asserts continuing breaches of the overall and continuing duty in this Court for disclosure.
It is proper to emphasise that a failure to make disclosure has ramifications for a party outside of the contempt provisions including that the party may not then be permitted to rely on documents not disclosed and/or that it is open for the Court to draw inferences adverse to that party by reason of findings of non-disclosure.
COUNT 1
Count one alleges both “non-disclosure and full fraudulent undertaking as to disclosure” contrary to Order 16(b) of the Orders 16 April 2024 which provided that not later than 4.00pm on 23 July 2024, each party must file and serve…:
an undertaking as to disclosure in accordance with Rule 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
The husband’s application particularises the date of the fraudulent undertaking as to disclosure being 25 July 2024. Significantly, and at 4:33pm, the relevant document was signed on 22 July 2024. Where strict particularisation is required and including, therefore, the absence of any ambiguities and so as to allow a respondent to properly plead, confused particulars in this count would give or create such ambiguity. Put simply, no document is produced dated 25 July 2024 to ground the complaint. As such, the wife has no case to answer in respect of count one.
In any event, the evidence of the husband in his affidavit, fails to prove any flagrant challenge to the authority of the Court (Stratford supra) or wilfulness or deliberate intent on the part of the wife.
As such, the indicia of the complaint are not made out and for these reasons the wife has no case to answer.
COUNT 2
Count two alleges that on 21 September 2023 and continuing and contrary to Orders 26 and 27 of 15 August 2023 the wife did not provide disclosure and did not file an undertaking as to disclosure by a due date of 21 September 2023 nor affidavit.
Order 26 of the Orders of 15 August 2023 provides that:
Not later than 4.00pm on 7 September 2023, the PARTIES EACH file and serve an Undertaking as to Disclosure …
Order 27 of those Orders provides that:
In the event of the party:
a) has not satisfied their duty of full and frank disclosure; and/or
b) is unable to file an undertaking to disclosure;
then by 4.00pm on 21 September 2023 such party must file and serve and affidavit that precisely:
i)identities all information and documents the party has a duty to disclose but has not disclosed or documents that have been requested by another party but such documents have been unable to be disclosed for any reason;
ii)sets out the reasons why such information and documents not been disclosed;
iii)details all steps that party is taking or will take to satisfy the duty of disclosure in relation to such documents; and
iv)the date by which party’s duty of disclosure will be completed.
(Original emphasis)
The wife concedes that she has not complied with the order. Nevertheless, the husband’s affidavit does not provide evidence of deliberate, intentional, or flagrant challenge to the court orders. Significantly, however, disclosure was made and as noted at [70] of the husband’s own affidavit which also notes advice as to objections taken by the husband to requests for specific disclosure. As such, the allegation relates to a contentious “admission”. As such, the Application for Contempt is, in, my view, misguided in being a complaint as to lack of the full and comprehensive disclosure more properly the province of Part X111A of the Act or an interlocutory application for specific discovery or, indeed the issue of subpoena. I find where no evidence of sufficient probity as to wilfulness or flagrant challenge is given then the wife has no case to answer.
COUNT 3
Counts 3 similarly argues that on 25 July 2024 the wife contravened Orders 16(c) of the Orders of 16 April 2024 in filing a “Fraudulent Certificate of Readiness” where the charge essentially again asserts failure to make full disclosure.
Order 16 states:
In accordance with the Central Practice Direction - Family Law Case Management, not later than 4.00pm on 23 July 2024, each party must file and serve:
…
(c) a Certificate of Readiness in the approved form.
(Original emphasis)
The allegation itself notes that the wife’s filing of the Certificate of Readiness on 25 July as opposed to the requirement by order to file it on 23 July 2024. Thus, the Certificate of Readiness was filed albeit late.
This again is, in my view, is an argument as to an assertion of failure to make full disclosure “dressed up” as a contempt application.
Significantly, therefore, where the document was filed albeit late, there is no evidence as to a flagrant challenge to the Courts authority or wilful/intentional disregard of a court order. As such, I find that the wife has no case to answer.
COUNT 4 - BREACHES OF COMMUNICATION ORDER
In his application the husband himself asserts a “breach of Div 13A breach #1 of children communication order - 17 April 2024 to date,” Division 13A of the Act deals with contraventions and is separate and distinct from the contempt provisions of the Act.
This count relates to Order 3 of the Interim Orders made 16 April 2024 providing:
In the event the children or any of them express a wish to have telephone/electronic communication with the Husband the Wife shall facilitate same.
The husband concedes that he has difficulty with the particularisation of his application which asserts a breach under Division 13A of the Act although he argues that the aggregates of continuous contraventions amount to a contempt. I reject this submission. I note no evidence of prior findings of breach against the wife. Further, the husband provides no evidence of flagrant challenge to the Court’s order and particularly in the circumstances of the relevant order.
For these reasons I find that the wife has no case to answer in respect of this count.
COUNT 7
Count seven yet again pleads an alleged breach of Division 13A. This in itself causes the wife to have no case to answer where the Application is that she be dealt with for Contempt. Yet again, in addition, there is no prima facie evidence to establish deliberate, intention, or flagrant challenge to a court order.
COUNT 8
Count eight yet again asserts a breach pursuant to Division 13A of the Act. This is a Contempt Application. As such, the wife has no case to answer. Further the evidence of the husband involves inferences and assumptions without evidence of intent on the part of the wife or of flagrant challenge to the authority of the Court.
COUNT 9
Count nine alleges that on 28 March 2024 the wife “obstructed the administration of justice” by pressuring a single expert witness to not read or otherwise interfered with the experts ability to read the husband’s Notice of Risk. Specifically the husband alleges that the wife interfered with and obstructed the administration of Order 19 of 15 August 2023 Orders.
Order 19 provides simply:
The parties will provide to the single expert, copies of all documents relied upon by the parties.
The context of the relevant order comes from Order 15 stating that a “single expert shall prepare a report (“the expert report”)”.
Following the making of the procedural orders the husband himself subsequently filed a Notice of Risk or further Notice of Risk. The wife’s instructors wrote to the Single Expert expressing their objection to the Expert reading the Notice of Risk with objection taken to the content of the document which they say was voluminous and took the form of a “reply affidavit”. This is not an act of “obstruction of justice”. Relevantly, the wife says that the filing of the Notice of Risk by the husband after the procedural orders were made thereby denied the wife the right to object prior to the making of Order 19.
Prima facie, the wife offers rationale for the objection and notice of such objection to the Court Expert. This is a matter most properly dealt with at a procedural stage and by application to a Registrar. It does not constitute a flagrant challenge to the authority of the Court. It does not disclose the intent required for the proof of a contempt. In my view, the prosecution of this count is misguided. I am of the view that the wife has no case to answer in that on the evidence of the applicant husband alone, no properly directed trier of fact could find the claim proved.
COUNT 12
Count 12 alleges that the wife from 1 September 2023 and continuing has failed to make disclosure in respect of a Town B property and contrary to the Order 6(h) of the Orders of 15 August 2023 which states:
6.To the extent not already provided, the Wife provide to the Husband within 14 days:
…
h)Disclosure in relation to the [Town B] property, including documents in relation to the title holding and the value noting that the wife asserts that she holds her interest in this [Town B] property on trust for her parents.
The husband alleges that the wife has provided “no title and no documents”.
Again, and in my view fatally, the husband does not provide evidence of intent or deliberate non-disclosure. There is no evidence that the wife herself holds the title. There is no evidence of whether the property is or is not subject to a mortgage which would usually involve the mortgagee holding title. There is no evidence of the wife holding documents as to “value” which she has not disclosed.
Where the husband himself may be the victim of a broadly worded order itself lacking particularisation, he does not, however, provide prima facie evidence of the wife being in possession of documents that were the subject of any disclosure obligation. As such, the wife has no case to answer,
COUNT 15
The husband alleges that on 10 April 2024 at 3:47pm the wife made a false statement as to “loan timing” (fraudulent sworn affidavit filing (sic) 10 April 2024).
Although confusing in its content, the husband appears to dispute the wife’s statement as to when she obtained knowledge of a loan from her aunt. Firstly, this involves a factual dispute properly the subject of testing by cross-examination. There is no evidence of intent, deliberateness, or flagrant challenge to a court order.
In any event, where precise particularisation is a requirement to make out a Contempt, the count itself is ambiguous in alleging that on 10 April 2024 the wife committed a Contempt by making a false sworn statement on 9 April 2024. This ambiguity itself, in my view, causes the wife to have no case to answer.
COUNT 16
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.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 25 February 2025
0
4
2