Tate & Tate

[2002] FamCA 356

JFTATEJR

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT ADELAIDE

Appeal No. SA39 of 2001
File No. AD4316 of 1993

IN THE MATTER OF:

JOHN RICHARD DONALD TATE

Appellant/Husband

- and -

MARIE THERESE TATE

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE:                 Ellis, Kay and Holden JJ.
HEARD:                   11th, 12th and 13th day of March 2002
JUDGMENT:           30th day of May 2002

APPEARANCES: Mr Tilmouth QC with Mr Richards of counsel, instructed by Camatta Lempens Pty Ltd, Barristers & Solicitors, First Floor, 345 King William Street, Adelaide SA 5000, appeared on
behalf of the appellant husband.
Mr Heywood-Smith of counsel, instructed by Diane Myers
Pty Ltd, Solicitors, 189 Greenhill Road, Parkside SA 5063,
appeared on behalf of the respondent wife.

Catchwords: CONTEMPT – Standard of Proof

Family Law Act 1975 (Cth), s.112AP
Evidence Act 1995, ss.140 and 141
Witham v Holloway (1995) 183 CLR 525, Fleming v The Queen (1998) 197 CLR 250 applied.
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; Pelechowski v Registrar, Court of Appeal (1998) 72 ALJR 711; Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354; Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (unreported, Federal Court, 9 April 2002); Jerger v Pearce (1920) 27 CLR 526; State of Western Australia v Commonwealth; Wororra Peoples and Another v State of Western Australia; Biljabu and Others v State of Western Australia (1995) 128 ALR 1; N and F and N and Department of Human Services (unreported, Full Court Melbourne, 24 September 1997) considered.
Lindsey and Lindsey (1995) FLC 92-638 distinguished.

This is an appeal by the husband against his conviction for contempt of court and the severity of sentence imposed by Murray J. on 25 May 2001 and 19 October 2001.

On 25 November 1995, the wife filed an application for orders seeking property settlement, spousal maintenance, custody (as it was then) and discovery. On 6 November 1996 and
2 October 1997, the wife filed further applications for discovery. In March 1999 Dawe J. made several orders relating to the management of the case, including orders that certain model cars held by the husband be valued. In July 1998, Dawe J. ordered that the husband’s response to the wife’s property application be struck out and the matter be heard on an undefended basis. Her Honour refused subsequent applications by the husband to reinstate his response. On 25 August 1999, Dawe J. made orders granting injunctions restraining the husband and his agents from dealing with the husband’s property including real estate, Greetland Investments Pty Ltd (of which the husband was a director and shareholder), other entities, insurance and superannuation, shares and investments, the model car collection, loans and overdrafts and banking accounts except as required for day to day requirements and any personal property obtained by either party during the marriage. On 18 December 1999, judgment was delivered in the wife’s application for property settlement. On 29 June 2000, Dawe J. made further orders, including that the husband file an affidavit of documents and an order for inspection.

On 26 October 2000, Dawe J. heard a Form 48 application by the wife and found that the husband had contravened without excuse the order for property settlement requiring him to pay $100,000 to the wife within two months and imposed a fine of $2000 payable within one month. On 14 September 2000, the wife filed a Form 47 application seeking to have the husband dealt with for contempt of court. On 15 and 26 September 2000, Dawe J. made further orders that the model car collection be delivered up to the Court. On 18 October 2000, the wife filed a further form 47 application. On 26 October 2000, Dawe J. dismissed the wife’s Form 47 applications filed 14 September 2000 and 18 October 2000. On 2 March 2001, on the application of the wife, Dawe J. made an ex parte Anton Pillar order resulting in the seizure of 12 boxes of the husband’s model car collection. On 22 March 2001, the wife filed a further Form 48 application seeking that the husband be dealt with for contempt of court. This application came before Murray J. on 29 March 2001 and is the application out
of which this appeal arises. During the course of the hearing, the wife was permitted by Murray J. to include a new allegation, numbered 3A. The allegations denied by the husband were:-

Charge No. 3 - That the husband sold his 520 AMP shares on 26 August 1999 in breach of the order made by this Honourable Court on 25 August 1999.
Charge 3A -

That the husband disposed of the proceeds of the sale of the 520 AMP shares on or about 17 September 1999 in breach of the order made by this Honourable Court on
25 August 1999.

Charge 4 - That the husband disposed of his Magna motor vehicle on or about 24 December 1999 in breach of the order made by this Honourable Court on 25 August 1999.
Charge 5 - That on or about the 9 November 1999 the husband transferred the sum of $150,000 held in the name Greetland Investments Pty Ltd as a term deposit with National Australia Bank, and paid the same into his trust account in breach of the orders made by this Honourable Court on 25 August 1999.
Charge 6 - That on 20 and 29 December 1999 the husband withdrew the said sum of $150,000 from his trust account by way of three withdrawals each of $50,000 and deposited them into investment funds with Colonial First State Advance Funds Management and Perpetual Trustees in breach of the orders made by this Honourable Court on 25 August 1999.
Charge 7 - That on or about the 25 August 2000 the husband transferred his shareholding in Greetland Investments Pty Ltd to his mother Edith Tate in breach of orders made by this Honourable Court made on 25 August 1999.
Charge 8 - That at or about the same time as referred to in paragraph 7 herein the husband extinguished his loan account in Greetland Investments Pty Ltd to another in breach of orders made in this Honourable Court on 25 August 1999.
Charge 9 - That the husband failed to deliver up the whole of the model car collection to the Court appointed valuer in March 1999 and ordered by this Honourable Court on 10 March 1999.
Charge 11 - That the husband did not deliver up to the Family Court, Adelaide Registry the full and complete model car collection in breach of the orders made by this Honourable Court on 15 September 2000 and 26 September 2000.
Charge 13 - That the husband did not produce documents by way of discovery as ordered by this Honourable Court on 29 June 2000.

At a hearing restricted to the issues of whether the husband had committed a contempt of court, described by Murray J. as brought pursuant to s.112AP, the husband admitted the charge numbered 12. Her Honour found charges numbered 3A, 4, 5, 6, 7, 8, 9, 11, 12 and 13 proved. In her reasons, her Honour did not refer to the standard of proof applied nor to the provisions of ss.140 or 141 of the Evidence Act 1995 (Cth). On 19 October 2001, her Honour sentenced the husband to imprisonment for a period of 12 months.

On Appeal: The husband appealed the findings of guilt in relation to the charges other than the charge numbered 12 and the severity of the sentence imposed. It was submitted, inter alia, that the appropriate standard of proof applicable to the proceedings, being proceedings for contempt, having regard to Witham v Holloway and ss.140 and 141 of the Evidence Act, was the criminal standard, and that her Honour erred in applying the civil standard of proof, or further, that her Honour failed to determine what standard of proof applied to the proceedings which vitiated her findings.

Held (per Ellis and Holden JJ.): Allowing the appeal in part:-

Having regard to Witham v Holloway, the standard of proof to be applied in proceedings in the Family Court seeking that the respondent be dealt with for contempt of court is proof beyond reasonable doubt, unless the Evidence Act provides to the contrary. Having regard to the language of s.112AP and the relevant Rules of Court, the application before Murray J. seeking that the husband be dealt with for contempt was a proceeding for an offence. Whilst the acts constituting the alleged contempts in this case are not offences against any law of the Commonwealth, if established, the acts constitute offences arising under an Australian law within the terms of the Evidence Act. Thus, pursuant to s.141(1) of the Evidence Act the standard of proof to be applied is proof beyond reasonable doubt. Thus, the standard of proof to be applied in proceedings in the Family Court seeking that a respondent be dealt with for contempt of court is proof beyond reasonable doubt.

It was submitted on behalf of the wife that the civil standard of proof applied to the proceedings. Counsel for the wife did not assert that the trial Judge had applied the criminal standard. The trial Judge did not disclose, expressly or by implication, the standard of proof she applied. In the circumstances, we could not be satisfied that the trial Judge applied the appropriate standard, namely proof beyond reasonable doubt, in making relevant findings in respect of the allegations denied by the husband.

The decision of the trial Judge, other than in relation to the charge numbered 13, might have been different had the criminal standard of proof been applied to all charges other than the charges numbered 4 and 6.

Charges numbered 4 and 6 were not established beyond reasonable doubt. The appeal in relation to these charges was allowed and those charges dismissed.

Charge numbered 13 was established before the trial Judge beyond reasonable doubt.

Charges numbered 12 and 13 were remitted to Murray J. for rehearing as to penalty. Charges numbered 3A, 5, 7, 8, 9 and 11 were remitted for rehearing before a single Judge other than Murray J.

Held (per Kay J.): Allowing the appeal in part: -

Prima facie, a successful party is entitled to the benefit of the judgment obtained and is entitled to commence with the assumption that the judgment is correct (see Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, 627). Absent any material suggesting that the trial Judge having applied an incorrect standard of proof, it can be presumed that her Honour has correctly acted according to law (Fleming v The Queen (1998) 197 CLR 250 distinguished). Further, the facts relating to charges 5 and 13 were not disputed and the charges were proved beyond reasonable doubt before her Honour.

Whilst s 97(3) of the Family Law Act 1975 provides that the court shall proceed without undue formality and shall endeavour to ensure that proceedings are not protracted, and whilst Order 4 of the Family Law Rules enables the court to dispense with compliance with any of the requirements of the Rules and to have regard to the need to provide a prompt and inexpensive resolution of the matters in issue between the parties, in matters concerning the liberty of the subject it would generally only be with the clear consent of the parties that any departure from the Rules would be appropriate. As such consent was not obtained from the appellant charge 3A (dealing with the proceeds of a share sale), added in the midst of the appellant being cross-examined, cannot stand.

The car sold by the appellant, the subject of charge 4, was not covered by the terms of the orders prohibiting the husband from dealing with chattels acquired during the marriage as it was purchased after decree absolute.

The investment of company funds in interest bearing deposits, the subject of charge 6, was not in breach of any relevant injunction (dealings other than in the normal course of business).

Given her Honour’s findings about the husband’s credit, charges 7 and 8 (share and loan account dealings in breach of injunctions) were sustainable and no error was demonstrated which would vitiate the convictions.

The trial Judge’s failure to adjourn to allow a key defence witness to be called, or to suggest taking his evidence by video, so vitiates the convictions under charges 9 and 11 (failing to produce certain model cars) that they are unsafe to stand.

Written submissions to be made in relation to costs of the appeal.

Reportable.

INTRODUCTION

ELLIS & HOLDEN JJ: This is an appeal by John Richard Donald Tate (the husband) against certain paragraphs of the orders made by Murray J. on 25 May 2001 and 19 October 2001 sentencing him to imprisonment for twelve months for contempt of court. The appeal is against both the conviction, other than the conviction in relation to the charge numbered 12, and the severity of the sentence imposed. Her Honour found the husband guilty of contempt in that he failed to comply with certain of the orders made by Dawe J. on 10 March and 25 August 1999 and on 29 June and 15 and 26 September 2000.

The orders made by her Honour on 25 May 2001 were:-

“1. That Charge 3 do stand dismissed.

2. I find that Charges 3A, 4, 5, 6, 7, 8, 9, 11, 12 and 13 proved.

AND UPON NOTING the wife’s oral application to restrain the husband from leaving the State of South Australia

AND UPON FURTHER NOTING the husband’s undertaking that his permanent address will remain 65 Cresdee Road Campbelltown in the State of South Australia

3.That pending any decision as to penalty in this matter the husband be restrained and an injunction is hereby granted restraining him from leaving the Commonwealth of Australia.

4.That further consideration of the matter is adjourned to the 22^nd day of August 2001 at 9.30am before the Honourable Justice Murray for submissions as to penalty.”

On 19 October 2001, her Honour made the following orders:-

“1.That the husband JOHN RICHARD DONALD TATE be sentenced to imprisonment for a period of twelve [12] months such imprisonment to commence forthwith.

AND UPON NOTING that the wife does not oppose the granting of a stay during the period of the adjournment

IT IS FURTHER ORDERED:

2.That the Warrant of Commitment issued herein be stayed during the period of the adjournment and that any imprisonment do not commence until the lifting of the said stay.

3. That the question of costs is adjourned.

4.That this matter be adjourned to the 1^st day of November 2001 at 9.15am before the Honourable Justice Murray.”

It is convenient at the outset of these reasons to set out in full the provisions of s.112AP of the Family Law Act 1975 (Cth) (the Act) as her Honour commenced her reasons by saying:-

“This is a Form 47 application by a wife pursuant to section 112AP filed on 22 March 2001 (Document 225) in which she alleges a number of charges.”

Section 112AP provides:-

“(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.

(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.

(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.

(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.

(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.

(5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.

(6)       The court may make an order for:
(a)       punishment on terms;
(b)       suspension of punishment; or
(c)       the giving of security for good behaviour.

(7)Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.

(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.

(9) In this section:
order under this Act means an order under this Act affecting children within the meaning of Division 13A of Part VII or an order under this Act within the meaning of Part XIIIA.”

HISTORY OF THE PROCEEDINGS

The history of the proceedings relevant to the appeal as it emerges from the reasons for judgment delivered by Murray J. on 25 May 2001 is as outlined in the following paragraphs:-

On 25 November 1995, Marie Therese Tate (the wife) filed an application seeking orders for property settlement, spousal maintenance, custody (as residence was then called) and discovery. On 6 November 1996 and again on 2 October 1997, the wife filed further applications for discovery.

In February 1999, Dawe J. commenced the case management of the wife’s application and thereafter made a number of orders.

On 10 March 1999, Dawe J. ordered, inter alia:-

“4.That the parties are each directed to take such steps as may be necessary to ensure that the valuer from Ian Bruce Pty Ltd has immediate access to all model cars and collection for the purpose of valuation on twenty four [24] hours notice.

5.That within three days the husband do provide to the valuer and to the wife schedules indicating which items (of model cars and collection) were acquired prior to cohabitation and which items were acquired prior to and since final separation.

6. …
7That the order that model cars and collection remain in the metropolitan area of Adelaide do continue.”

On 28 July 1999, Dawe J. ordered that the husband’s Response to the wife’s application filed on 25 November 1995 be struck out and that that application be heard as an undefended matter. Her Honour subsequently refused applications by the husband to reinstate his Response.

On 25 August 1999, Dawe J. made the following orders:-

“1.That the reinstatement of the Form 7A Response filed herein on the 13th of March 1996, by the husband is declined.
2.That pending the disposal and completion of these proceedings the husband, or his servants or agents be restrained and an injunction is hereby granted restraining the husband from transferring, assigning, selling, disposing of, dealing in, encumbering, leasing or otherwise pledging, entering into any agreement concerning the ownership of, liquidation or the wilful diminishing of or in any way wilfully affecting the interests of the husband or the interest of the wife either at law or in equity or at all in the following property:
(a)any interest in any real estate either registered in the husband’s sole or joint name or in which the wife has any interest;
(b)any interest in Greetland Investments Pty Ltd;
(c)any interest in any company, partnership, or known entity in his dealings as an accountant;
(d)any insurance, assurance or superannuation policy;
(e)any shares, investments, bonds, bills of exchange debentures;
(f)any collection of Model cars, trucks memorabilia and collection;
(g)any loan overdraft or borrowing account with any bank, credit union, building society, private company, family trust or unit trust SAVE AND EXCEPT for the normal day to day requirements of the business or the husband and his family’s day to day living expenses;
(h)any banking or chequing accounts, investment account controlled or operated by the husband either solely or jointly with any other person or in any other form of partnership trust SAVE AND EXCEPT for the normal day to day requirements of the business or the husband and his family’s day to day living expenses; and

(i)any other personal property held or had and obtained by either the husband or the wife during the period of their marriage.

3.That pending the disposal and completion of these proceedings the wife, her servants or agents be restrained and an injunction is hereby granted restraining the wife from transferring, assigning, selling, disposing of, dealing in, encumbering, leasing or otherwise pledging, entering into any agreement concerning the ownership of, liquidation or the wilful diminishing of or in any way wilfully affecting the interests of the wife or the interest of the husband either at law or in equity or at all in the following property:

(a)any interest in any real estate either registered in the wife’s sole or joint name or in which the husband has any interest;
(b)any interest in any company, partnership, or known entity in her dealings;
(c)any insurance, assurance or superannuation policy;
(d)any shares, investments, bonds, bills of exchange debentures;
(e)any banking or chequing accounts, investment account controlled or operated by the wife either solely or jointly with any other person or in any other form of partnership trust SAVE AND EXCEPT for the normal day to day requirements of the business or the wife and her family’s day to day living expenses; and
(f)any other personal property held or had and obtained by either the wife or the husband during the period of their marriage.”

The wife’s application for property settlement was heard by Dawe J. on 20 October 1999 and judgment was delivered on 18 December 1999. Thereafter, there were further proceedings between the parties. On 29 June 2000, Dawe J. ordered:-

“1.That the husband obey all of the orders of 6 June 2000 by 18 July 2000 at 4.00pm. (that is, all documents ordered on 6 June 2000 were to be filed and served by 18 July 2000 at 4.00pm).
2.That the husband also file and serve by 18 July 2000 at 4.00pm, a complete affidavit of documents in relation to his past and present financial circumstances and any transactions relating thereto and provide inspection to the wife of all those documents on 21 July 2000 at 10.00am at the Records Section of the Family Court, 6th floor, 25 Grenfell Street Adelaide.
3.That the inspection of documents by the wife be other than in the presence of the husband by (sic) supervised by a staff member of the Family Court.
4.That the husband do also produce all such documents on the adjourned date.
5.Matter adjourned to Tuesday 15 August 2000 at 9.30am before Justice Dawe.”

On 25 January 2000, the wife filed an application in accordance with Form 48 in which she alleged that the husband had, without reasonable excuse, contravened certain orders. That application was heard by Dawe J. on 26 October 2000. Her Honour found that the husband had contravened, without reasonable excuse, the order of 18 November 1999 requiring him to pay $100,000 to the wife within two calendar months and imposed upon him a fine of $2000 payable within one calendar month from the date of the order.

On 14 September 2000, the wife filed an application in accordance with Form 47 seeking to have the husband dealt with for contempt of court. On 18 October 2000, the wife filed a further Form 47 application.

On 15 September 2000, Dawe J. ordered, inter alia:-

“1.Within seven days from the date hereof the husband do deliver up to the Registrar of this Court Adelaide Registry the full and complete model car collection, such collection to be held by the Court pending further order.”

On 26 September 2000, Dawe J. ordered, inter alia:-

“4.That the husband do by 28^th September 2000 comply with the order made by the Honourable Justice Dawe on 15^th September 2000 in relation to the delivery up of the model car collection to the Adelaide Registry of the Family Court.”

On 26 October 2000, Dawe J. dismissed the wife’s application filed on 14 September 2000. In relation to the application filed on 18 October 2000, her Honour said:-
“Being such serious proceedings, the proper particularities must be set out in a precise fashion, similar I might say, to those specified in the particulars alleged in support of criminal offences. Whilst I have said that I have no doubt that the husband understands the actual acts to which this application relates, nonetheless, Mr Richards is right, that the application is not in a particularly careful precise form which would permit the husband to be required to plead in response.
8.In relation to the application it will be dismissed with liberty to the wife to file the appropriate application properly drawn when and if she receives the advice, or as she is advised so to do.”

On 2 March 2001, on the application of the wife, Dawe J. made an exparte Anton Pillar order as a result of which 12 boxes of model cars, tanks, books and magazines were seized from the home of the husband’s late mother and brought to the Adelaide Registry of the Court.

On 22 March 2001, the wife filed a further Form 47 application in which she sought that the husband be dealt with for contempt of court. The details of each of the alleged contempts are set out in Part B of the application as follows:-

“1.The husband has not paid the wife the sum of $100,000.00 as ordered by this Honourable Court on the 18^th November 1999.

2.The husband resigned as a director of Greetland Investments Pty Ltd on the 2^nd June 2000 and was re-appointed on the 18^th September 2000 in breach of the order made by this Honourable Court on the 25^th August 1999.

3.The husband sold the AMP shares on the 26^th August 1999 in breach of the order made by this Honourable court on the 25^th August 1999.

4.The husband disposed of his Magna motor vehicle on or about the

24^th December 1999 in breach of the order made by this Honourable Court on the 25^th August 1999.

5.On or about the 9^th November 1999 the husband transferred the sum of $150,000.00 held in the name of Greetland Investments Pty Ltd as a term deposit with National Australia Bank and paid same into his trust account in breach of the orders made by this Honourable Court on the 25^th August 1999.

6.On the 20^th and 29^th December 1999 the husband withdrew the said sum of $150,000.00 from his trust account by way of three withdrawals each of $50,000.00 and deposited them into investment funds with Colonial First State Advance Funds Management for Perpetual Trustees in breach of the orders made by this Honourable Court on the 25^th August 1999.

7.On or about the 25^th August 2000 the husband transferred his shareholding in Greetland Investments Pty Ltd to his late mother, Edith Tate, in breach of the orders made by this Honourable Court on the 25^th August 1999.

8.At or about the same time as referred to in paragraph 7 herein the husband extinguished his loan account in Greetland Investments Pty Ltd to another in breach of the orders made by this Honourable Court on the 25^th August 1999.

9.The husband failed to deliver up the whole of the Model car collection to the court appointed valuer in March 1999 as ordered by this Honourable court on 10^th March 1999.

10.The husband dealt with his model car collection by placing a lien over the said collection in favour of his current wife in or about September/October 2000 in breach of the orders made by this Honourable Court on the 25^th August 1999.

11.The husband did not deliver up to the Family Court Adelaide Registry the full and complete model car collection in breach of the orders made by this Honourable Court on the 15^th September 2000, 22^nd September 2000 and

26^th September 2000.

12.The husband did not retain the said model car collection within the metropolitan area of Adelaide in breach of orders made by this Honourable Court on the 3^rd February 1999.

13.The husband did not produce documents by way of discovery as ordered by this Honourable Court.

14.The husband has failed to pay my costs awarded to me of $3,000.00 by the Full Court on 26^th September 2000”

That application came on for hearing before Murray J. on 29 March 2001 and is the application out of which this appeal arises. On that day, the husband was not asked whether he admitted or denied all or any of the allegations. However, counsel appearing for the wife informed her Honour that the wife would not pursue what her Honour described as the charges numbered 1, 2, 10 and 14 in the application. The hearing was adjourned to 18 April 2001 on which day the husband was orally informed by her Honour of the allegations contained in paragraphs 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13 of the wife’s application, all of which the husband denied.

During the course of the hearing, Murray J. permitted the wife to amend her application by including a new allegation, numbered 3A. The husband refused to indicate whether he admitted or denied that allegation, with the consequence that her Honour inferred that he denied it.

Some days after the commencement of the hearing, the husband informed her Honour that he admitted the allegation set out in paragraph 12 of the wife’s application.

The allegations denied by the husband were recorded by her Honour in her reasons as follows:-

“Charge No. 3
That the husband sold his 520 AMP shares on 26 August 1999 in breach of the order made by this Honourable Court on 25 August 1999.
Charge 3A
That the husband disposed of the proceeds of the sale of the 520 AMP shares on or about 17 September 1999 in breach of the order made by this Honourable Court on
25 August 1999.

Charge 4
That the husband disposed of his Magna motor vehicle on or about 24 December 1999 in breach of the order made by this Honourable Court on 25 August 1999.
Charge 5
That on or about the 9 November 1999 the husband transferred the sum of $150,000 held in the name Greetland Investments Pty Ltd as a term deposit with National Australia Bank, and paid the same into his trust account in breach of the orders made by this Honourable Court on 25 August 1999.
Charge 6
That on 20 and 29 December 1999 the husband withdrew the said sum of $150,000 from his trust account by way of three withdrawals each of $50,000 and deposited them into investment funds with Colonial First State Advance Funds Management and Perpetual Trustees in breach of the orders made by this Honourable Court on
25 August 1999.

Charge 7
That on or about the 25 August 2000 the husband transferred his shareholding in Greetland Investments Pty Ltd to his mother Edith Tate in breach of orders made by this Honourable Court made on 25 August 1999.
Charge 8
That at or about the same time as referred to in paragraph 7 herein the husband extinguished his loan account in Greetland Investments Pty Ltd to another in breach of orders made in this Honourable Court on 25 August 1999.
Charge 9
That the husband failed to deliver up the whole of the model car collection to the Court appointed valuer in March 1999 and ordered by this Honourable Court on
10 March 1999.

Charge 11
That the husband did not deliver up to the Family Court, Adelaide Registry the full and complete model car collection in breach of the orders made by this Honourable Court on 15 September 2000 and 26 September 2000.
Charge 13
That the husband did not produce documents by way of discovery as ordered by this Honourable Court on 29 June 2000.”

The hearing limited to the issue of whether the husband had committed a contempt of court, proceeded over a period of 17 days. The wife was represented throughout that hearing by counsel. The husband was represented by counsel up to and including

20 April 2001 and thereafter (13 days) appeared without legal representation. Her Honour reserved judgment, delivering her reasons on 25 May 2001, at the conclusion of which she stated:-

“I find:
1. That Charge 1, 2, 3, and 10 should stand dismissed.
2. That Charges 3A, 4, 5, 6, 7, 8, 9, 11, 12 and 13 do stand proved.”

In those reasons, her Honour did not refer to the standard of proof which she applied nor to the provisions of ss.140 or 141 of the Evidence Act 1995 (Cth) (the Evidence Act).

On 29 August 2001, her Honour was addressed by counsel for both and the wife and the husband in relation to penalty. On 19 October 2001, her Honour handed down her reasons and announced that her order would be that the husband be sentenced to imprisonment for a period of 12 months, such imprisonment to commence forthwith.

Thereafter, her Honour made orders as referred to in paragraph 3 hereof.

On 1 November 2001, the warrant of commitment was stayed on certain conditions pending the determination of the husband’s appeal.

GROUNDS OF APPEAL

Leave was granted to the husband at the commencement of the hearing to further amend his grounds of appeal, subject to certain conditions with which he complied. The further amended grounds of appeal are as follows:-

“APPEAL AGAINST CONVICTION

Charge 3A – AMP shares

1.The Learned Trial Judge erred in allowing a new charge to be added after the close of the case for the wife during the course of the cross examination of the husband AND FURTHER OR IN THE ALTERNATIVE she erred in:

1.1 failing to adjourn to enable the appellant to seek legal advice;

1.2requiring the husband to give immediate evidence in chief relating thereto;

1.3failing to act in accordance with Order 35 Rule 10 of the Family Court Rules.

2.The Learned Trial Judge erred in finding (AB 1, 46[107]) that the disposal of the proceeds of the AMP shares was a breach OR ALTERNATIVELY a willful (sic) breach of the order of 25^th August 1999.

3.The Learned Trial Judge erred in finding (if she did so find) that the transaction:

3.1 deprived the wife of the value of the shares (AB 1, 45[104]);

3.2 was a willful (sic) breach of the order of 25^th August 1999;

3.3was a flagrant challenge to the authority of the Court under Section 112AP of the Family Law Act.

4.The appellant seeks an order that the finding that charge 3A was proved be set aside and the charge dismissed.

CHARGE 4 – DISPOSAL OF THE MAGNA

5.The Learned Trial Judge erred in finding that (AB 1, 48[115]) the appellant breached the order of 25^th August 1999 OR ALTERNATIVELY in failing to find what precise part of the order it so breached.

6.The Learned Trial Judge erred in finding that the disposal of the Magna was to prevent the wife from getting any benefit from her property settlement (AB 1, 48[115]) AND/OR in finding (if she did so find) that the breach was a “flagrant challenge to the authority of the Court under Section 112AP of the Family Law Act”.

7.The appellant seeks an order that the finding that charge 3A was proved be set aside and the charge dismissed.

CHARGES 5 AND 6 – GREETLAND INVESTMENTS $150,000

8.The Learned Trial Judge erred in finding that Greetland Investments was the alter ego of the appellant (AB 1, 48[116]) AND FURTHER OR IN THE ALTERNATIVE, she erred in:

8.1finding that Dawe J. found Greetland was a company controlled by the husband;

8.2relying on, without making her own findings, the affidavit of Mr Clifton;

8.3precluding the husband from cross examining Mr Clifton and/or challenging his affidavit;

8.4 failing to consider whether Greetland Investments was a sham.

9.The Learned Trial Judge ought to have found that the findings of Dawe J. in previous contempt proceedings on 26^th October 2000 (AB 3, 551 at 557-8) constituted an issue estoppel on the question of ownership of the $150,000 by Greetland AND/OR that it was an abuse of process to allow a charge with respect to that question to proceed to trial and conviction on a charge for contempt under Section 112AP.

10.The Learned Trial Judge erred in drawing an adverse inference from the failure of the appellant to call his sister (AB 1, 49[120]).

11.The Learned Trial Judge erred in finding that the affect of the transaction was to place the $150,000 beyond the reach of the wife (AB 1, 49[120]).

12.The Learned Trial Judge erred in finding (if she did so find) that the transaction was a willful (sic) breach of the order of the Court of 25^th August 1999 AND/OR that it was a flagrant challenge to the authority of the Court within the meaning of Section 112AP of the Act.

13.The appellant seeks an order that the finding that charges 5 and 6 were proved, be set aside and the charge dismissed.

CHARGES 7 AND 8 – TRANSFER OF GREETLAND SHARES

14.The Learned Trial Judge erred in failing to find the connection between the company paying Mrs E Tate and her buying the husband’s shares to extinguish the debt of the husband (AB 1, 51[126]) and in finding that “inconsistent with the form of the cheque butt showing Mrs Tate as payee” (AB 1, 53[132]).

15.The Learned Trial Judge erred in finding the transfer of the shares occurred after 25^th August 1999 (AB 1, 51[127], 53 [132]) based on the “whiting out” of share transfer certificate W6 AND FURTHER THAT Her (sic) Honour ought to have found that the appellant’s case that the certificate was originally dated December 1998 was evident from the document, OR ALTERNATIVELY that that was a reasonable possibility.

16.The appellant seeks an order that the finding that charges 7 and 8 was (sic) proved be set aside and the charge dismissed.

CHARGES 9 – 11 – MODEL CARS

17.The Learned Trial Judge erred in finding that there was a breach of the order of 10^th March 1999 and in particular in failing to find that there was not 24 hours notice as required by the said order.

18.The Learned Trial Judge erred in failing to grant an adjournment to the appellant to enable him to call Mr Nasilowski to give evidence AND FURTHER Her (sic) Honour erred in drawing an adverse inference from his failure to call him (AB 1, 55 – 6[140]).

19.The appellant seeks an order that the finding that charges 9 and 11 were proved be set aside and the charge dismissed.

CHARGE 13 - DISCOVERY

20.The Learned Trial Judge erred in finding that “few if any documents” were provided for inspection by the wife (AB 1, 59[150]) AND THAT she ought to have found the husband lodged with the Court a “blue folder” containing relevant documents AND FURTHER THAT Her (sic) Honour ought to have specified which document(s) ought to have been so discovered.

21.The Learned Trial Judge erred in finding that the documents she specified (AB 1, 60[154]) were material in relation to the failure of the appellant to make complete discovery.

22.The Learned Trial Judge erred in finding that the appellant’s failure to discover the notice of payment (exhibit W44) as a “serious omission on his part” given that he had previously filed an affidavit (AB 3, 379-380) explaining that it could not be located.

23.The Learned Trial Judge erred in finding (if she did so find) that the failure of the appellant to give discovery was a flagrant breach of the authority of the Court.

24.The appellant seeks an order that the finding that charge 13 was proved be set aside and the charge dismissed.

GENERAL

25.The Learned Trial Judge failed to apply the onus of proof to any findings of fact beyond reasonable doubt, OR ALTERNATIVELY Her (sic) Honour failed to assess the evidence in relation to each count in accordance with Section 140 of the Evidence Act 1995 (Cth) AND FURTHER THAT Her (sic) Honour failed to determine whether the proceedings were to be determined under with (sic) Section 140 or 141 of the Evidence Act 1995 (Cth).

26.The Learned Trial Judge erred in requiring the appellant (he being unrepresented) to address first AND/OR in refusing him an effective right of reply.

27.By reason thereof (paragraphs 25 and 26) either alone or in their cumulative effect there was a miscarriage of justice.

AS TO SENTENCE

28.One sentence having been fixed (AB 1, 73[27]) is vitiated by any error made in convicting on any one count and should be set aside.

29.The Learned Trial Judge erred in failing to suspend the term of imprisonment AND/OR in failing to regard that option as one of last resort.

30.The Learned Trial Judge erred in failing to take into account the effect of imprisonment to the appellant’s new family.

31.The Learned Trial Judge erred in failing to have agreed to the fact that there were elements of duplicity in counts 5 and 6, 7 and 8 and 9 and 11 which made them effectively one course of conduct.

32.The appellant seeks an order setting aside the sentence of imprisonment and remitting the determination of sentence to another Judge of the Court.”

SUBMISSIONS

Both parties made written and oral submissions in relation to the various grounds of appeal. However, it is convenient to initially consider Ground 25.

Ground 25

The overall thrust of the submissions made on behalf of the husband in support of this ground was that her Honour erred in that, in coming to her decision, she applied the civil standard of proof not the criminal standard.

Senior counsel for the husband submitted that no submission was made by counsel for the wife to the trial Judge in relation to what he described as the issue of the onus of proof nor were any submissions addressed to her Honour to assist her in determining whether the proceedings were civil or criminal, whether there was a “Briginshaw onus” or whether s.104 of the Evidence Act had application.

He submitted that the only reference at the hearing to the applicable standard of proof was the following comment made by the husband in his final address to the trial Judge on 11 May 2001:-

“That the allegations for contempt based on my opening remarks about the standard of proof, that it must be higher, have not been proved.”

Neither senior counsel for the husband nor counsel for the wife were able to identify for us the opening remarks to which the husband referred.

Our attention was then drawn to the provisions of Part XIIIA of the Act which senior counsel contrasted with the provisions of Part XIIIB which contains but one section, namely s.112AP. Senior counsel for the husband then submitted that the proceedings before her Honour, being proceedings brought pursuant to the provisions of s.112AP, were more properly characterised as criminal contempt proceedings and that the criminal standard of proof therefore applied to them. In support of the submissions, we were referred to Witham v Holloway (1995) 183 CLR 525 and, in particular, to the observations of McHugh J. at 538 to 541.

In addition, senior counsel referred us to the provisions of ss.140 and 141 of the Evidence Act and submitted that had her Honour addressed those sections, she would have concluded that the criminal standard of proof applied and would have applied that standard.

He further submitted that the failure of her Honour, in her reasons, to address the standard of proof to be applied, vitiated her findings. In support of that submission, he referred us to Fleming v The Queen (1998) 197 CLR 250.

In the alternative, he submitted that, if the appropriate standard of proof was the civil standard, then s.140(2) of the Evidence Act directed the court to take into account in deciding whether it was satisfied that the case had been proved on the balance of probabilities, inter alia, the nature of the subject matter of the proceedings and the gravity of the matters alleged. Senior counsel submitted that her Honour not only did not refer to the appropriate standard of proof but also failed to refer to the provisions of s.140(2).

In Witham v Holloway (supra), the contempts alleged were breaches of a disclosure order and of a Mareva injunction. The trial Judge indicated that, in the case of each order, he was dealing with a civil contempt “in the sense of a breach of [a court] order.” He recorded that “in New South Wales, the law is that, in a case of wholly civil contempt, the civil standard of proof applies, but with the required degree of satisfaction perhaps varying according to the gravity of the facts to be proved.”

The trial Judge committed the appellant to prison for one month for contempt of court.

The appellant’s appeal to the New South Wales Court of Appeal was dismissed on the basis that the civil standard of proof applied, but that the degree of satisfaction varied according to the gravity of the fact to be proved. The appellant then appealed to the High Court.

In a joint judgment, Brennan, Deane, Toohey and Gaudron JJ. said at 530 (omitting footnotes):-

“In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious. As well, in the case of some orders, described in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd as involving “arbitrary classification”, disobedience constitutes criminal contempt. They are orders forbidding interference with a ward of court, orders for the delivery up of a child and non-molestation orders. And it has been held that breach of a court order by a solicitor or by a liquidator is also a criminal contempt.”

Their Honours went on to say at 534 (omitting footnotes):-

“The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt “must realistically be seen as criminal in nature”. The consequence is that all charges of contempt must be proved beyond reasonable doubt. The Court of Appeal erred in holding otherwise.”

McHugh J. commenced his separate judgment by saying at 535:-

“The question in this appeal is whether the standard of proof required in proceedings for civil contempt is the balance of probabilities, proof beyond reasonable doubt or some intermediate standard. In my opinion, all civil as well as criminal contempts must be proved beyond reasonable doubt.”

At 538, he said (omitting footnotes):-

“Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders of the courts. But civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court’s order renders criminal what would be otherwise civil contempt. Where non-compliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has “a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest”.”

Thereafter, he noted that in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, the High Court had not abolished the distinction between civil and criminal contempt and went on to say at 545:-

“It is impossible to justify the continued application of the civil standard of proof in proceedings for contempt where the object of the proceedings is punitive and not remedial. It is contrary to one of the most fundamental rules of our legal system to commit a person to prison by way of punishment for breach of a curial order when the breach is only proved according to the civil standard. The consistent application of this basic principle requires that civil contempt proceedings brought to punish the contemnor must be proved according to the criminal standard. The requirement is probably greater than ever now that the power to fine for civil contempt has been authoritatively established. It is likely that courts will frequently punish by way of fine in situations where previously they were reluctant to imprison contemnors. However, I think that in proceedings for civil contempt it is necessary to go further than to merely apply the criminal standard of proof to cases where the object of the proceedings is purely punitive. Australian courts should follow the approach of the English and Canadian courts and require that all contempts be proved according to the criminal standard of proof.”

His Honour noted at 547:-

“No doubt the adoption of the criminal standard of proof for all contempt proceedings will make it difficult for those entitled to the benefit of judgments, orders and undertakings to enforce them. In many cases, the only means by which litigants can enforce the judgments or orders of the court is by contempt proceedings.”

There was no reference in either of the judgments in Witham v Holloway (supra) to the Evidence Act which commenced on 18 April 1995 or the Evidence Act 1995 (NSW) which commenced on 1 September 1995, no doubt because neither Act applies to proceedings the hearing of which began before the commencement of the relevant Act.

In Pelechowski v Registrar, Court of Appeal (1998) 72 ALJR 711, Gummow J. considered an application for bail pending the determination of an application for special leave to appeal from the New South Wales Court of Appeal. That Court had sentenced the applicant to a fixed term of imprisonment of six months, having declared that he had committed wilful breaches of an injunction granted in the New South Wales District Court. At 712, his Honour said (omitting footnotes):-

“… the nature of the jurisdiction with respect to contempt has since been further considered by the Full Court of this Court in Witham v Holloway. That case stands for the proposition that the differences upon which a distinction between civil and criminal contempt has in the past been based are largely illusory and that all proceedings for contempt are realistically to be seen as criminal in nature. In that case, the consequence was that the charges were to be proved beyond reasonable doubt.”

Again, there was no reference to either the Evidence Act or the Evidence Act 1995 (NSW).

In Clarkson v The Mandarin Club Ltd (1998) 90 FCR 354 at 364, Burchett J, after referring to Pelechowski v Registrar, Court of Appeal (supra) and Witham v Holloway (supra), went on to say:-

“Accordingly, if the charges of contempt are to be made out, any facts supporting them must be found beyond reasonable doubt. I have not made and shall not make such findings except on that basis.”

In reaching that conclusion, his Honour made no reference to the provisions of ss.140 or 141 of the Evidence Act, notwithstanding that the proceedings commenced after the commencement of that Act.

In Australian Competition and Consumer Commission v Purple Harmony Plates Pty Ltd (unreported, Federal Court, 9 April 2002), Goldberg J. considered a motion seeking a declaration that the respondents were guilty of contempt of court arising out of breaches of court orders. In the course of his reasons, his Honour said:-

“[16]The Court’s power to punish for contempt of court is well established. S31 of the Federal Court of Australia Act gives the Court the same power to punish for contempt of court as the High Court has under s24 of the Judiciary Act 1903 (Cth). The High Court has the same power to punish for contempt as was possessed by the Supreme Court of Judicature in England at the commencement of the Judiciary Act in 1903.

[17]A finding of contempt should not be made where the order is ambiguous, unclear or lacks precision. The order should specify with certainty the result to be achieved. The standard of proof for both civil and criminal contempt is that all charges of contempt must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534; Australian Securities & Investments Commission v Matthews [1999] FCA 803 at [22]. Any contempt of court is serious as it involves interference with the effective administration of justice by impeding and perverting its course and diminishing the authority of the Court: Deputy Commissioner of Taxation v Hickey [1999] FCA 259 at [35]. The Court’s power to punish for contempt is both necessary to enforce the Court’s orders for the benefit of the applicant and to uphold and protect the effective administration of justice by demonstrating that the Court’s orders will be enforced: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107. Accordingly, there is a public interest in the exercise of the contempt power.”

His Honour did not refer, in his reasons, to either ss.140 or 141 of the Evidence Act, notwithstanding that the proceedings commenced after the commencement of that Act.

In the instant case, Mr Heywood-Smith on behalf of the wife conceded that no submissions were put to her Honour as to the appropriate standard of proof but drew our attention to the following exchange between the trial Judge and counsel then appearing for the husband on 18 April 2001:-

“MR RICHARDS: I’m not saying anything is inaccurate, I’m saying it lacks any particularity other than to allege that the husband is in breach of the order, in some undefined and undescribed way, contrary to the requirement of the form itself as part of the rules and contrary to the, despite my friend’s assertion, your Honour, strict adherence in contempt proceedings in this Court to formal and proper procedure. This is a quasi criminal procedure.

HER HONOUR: Yes, look, I know that.”

He thereafter referred us to Lindsey and Lindsey (1995) FLC 92-638 and went on to submit that the civil standard of proof applied to the proceedings. However, that case was concerned with the standard of proof in proceedings in a federal court instituted pursuant to the provisions of s.112AD of the Act in relation to an alleged contravention of an order under the Act. It did not deal with the standard of proof in proceedings seeking an order that the respondent be dealt with for contempt of court. Further, subsequent to the delivery of the reasons in Lindsey and Lindsey (supra), the Act was significantly amended by the Family Law Amendment Act 2000 which, inter alia, introduced Parts XIIIA and XIIIB. However, in Lindsey and Lindsey (supra), the Court reviewed a number of authorities concerning the standard of proof to be applied when determining breaches of civil orders, including authorities decided pursuant to the provisions of the Act.

Mr Heywood-Smith did not assert that her Honour had applied the criminal standard of proof nor did he address the submission made on behalf of the husband relating to the provisions of s.140(2) of the Evidence Act.

It is unfortunate that both counsel did little more than outline their basic submissions and did not support those submissions by detailed arguments.

Standard of Proof to be Applied

We now turn to a consideration of the appropriate standard of proof.

In N and F and N and Department of Human Services (unreported, Full Court Melbourne, 24 September 1997), the parties, including the wife, had been restrained in 1994 from removing a child from the State of Victoria and from taking the child to any doctor, psychologist, psychiatrist or counsellor. Brown J. found that the wife had contravened those orders and sentenced her to a term of imprisonment. The wife appealed to the Full Court.

At 38, the Full Court (Fogarty, Lindenmayer and Finn JJ.) recorded that Brown J. had held:-
“The relevant standard of proof is the civil standard but I am satisfied beyond doubt that the actions which constituted the breaches occurred, that the wife was well aware of the various orders and knew she was breaching them by her actions, that she persisted in a course of conduct aimed at avoiding the execution of the warrant issued under the Act and the jurisdiction of this Court, and that for many months she took no reasonable steps to comply with the relevant orders, make amends for her breaches or apply to this Court for their variation.”

and recorded, without further comment, at 44:-

“Brown J found that “in proceedings pursuant to the provisions of s.112AP of the
Act initiated in the Family Court the standard of proof to be applied is the civil standard” (Appeal Books vol.1 p.143). In establishing the proper standard of proof in civil and criminal contempts, Brown J referred to ss.140 and 141 of the Evidence Act 1995 (Cth), Witham v Holloway (1995) 183 CLR 525, Lindsey v Lindsey (1995) FLC 92-638, and Schwarzkopff and Schwarzkopff (1992) FLC 92-303. Her Honour found that “the distinction between the two types of contempt (s.112AP and s.112AD) is illusory” and the difference between them is not such “as to render an application pursuant to s.112AP a criminal proceeding within the definition of the Evidence Act” (Appeal Books vol.1 p.142). Nevertheless, her Honour found that even if the criminal standard was the correct standard of proof, “I would still be satisfied beyond reasonable doubt that the charges against the wife were made out” ”

Thus, the Court did not consider the question of the applicable standard of proof.

In our view, having regard to Witham v Holloway (supra), the standard of proof to be applied in proceedings in the Family Court seeking that the respondent be dealt with for contempt of court is proof beyond reasonable doubt, unless the Evidence Act provides to the contrary.

Sections 140 and 141 of the Evidence Act provide:-

“140(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

141(1)In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

(2)In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.”

Section 3 of that Act provides:-

“(1)Expressions used in this Act (or in a particular provision of this Act) that are defined in the Dictionary at the end of this Act have the meanings given to them in the Dictionary.

(2)Notes included in this Act are explanatory notes and do not form part of this Act.

(3)Definitions in this Act of expressions used in this Act apply to its construction except insofar as the context or subject matter otherwise indicates or requires.”

Part 1 of the Dictionary contains the following definitions:-

· Australian law means a law of the Commonwealth, a State or a Territory.

· civil proceeding means a proceeding other than a criminal proceeding.
· criminal proceeding means a prosecution for an offence and includes:

(a)a proceeding for the committal of a person for trial or sentence for an offence; and

(b) a proceeding relating to bail;

but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953.

· federal court means:

(a) the High Court; or

(b)any other court created by the Parliament (other than the Supreme Court of a Territory);

and includes a person or body (other than a court or magistrate of a State or Territory) that, in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.

· offence means an offence against or arising under an Australian law.

The ordinary meaning of the word offence includes not only a crime but also a transgression, a wrong or a sin: see The Macquarie Dictionary, Second Edition (1991).

Part 2 of the Dictionary provides:-

“9(1)A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.

(2)A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.”

Thus, a reference in the Evidence Act to an Australian law includes a reference to the common law of Australia.

In order to determine the standard of proof to be applied in proceedings seeking that the respondent be dealt with for contempt of court, it is thus necessary to determine whether the proceedings are proceedings for an offence against or arising under an Australian law.

In Re Colina and Another; Ex parte Torney (1999) 166 ALR 545, the Marshal of the Family Court of Australia had filed an application in that Court alleging that the respondent had committed the offence of contempt of court in the form of what is usually described as scandalising the court. The respondent applied to the High Court for a writ of prohibition on two grounds, one being that the charges against him may not be dealt with summarily and that trial by jury was necessary.

In their joint judgment, Gleeson CJ. and Gummow J. said at 551 (omitting footnotes):-

“[15]… Section 21 of the Family Law Act creates the Family Court as a superior court of record, s 35 states that it has “the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court”, and the relevant effect of s 112AP is to authorise provisions as to practice and procedure by the rules and to specify the forms of punishment. Section 24 of the Judiciary Act 1903 (Cth) (the Judiciary Act) states that the court shall have the same power to punish contempts of its power and authority as was possessed at the commencement of that statute by the Supreme Court of Judicature in England.

[16]Section 24 of the Judiciary Act and s 35 of the Family Law Act are not expressed to confer federal jurisdiction in respect of a particular species of “matter”. They set out particular powers of this court and the Family Court and should read as declaratory of an attribute of the judicial power of the Commonwealth which is vested in those courts by s 71 of the Constitution. The acts constituting the alleged contempts by Mr Torney are not offences against any law of the Commonwealth. That which renders such acts (if proved) liable to punishment has its source in Ch III of the Constitution. The power to deal summarily with contempts is, to use Isaacs J’s phrase “inherent” and is “a power of self-protection or a power incidental to the function of superintending the administration of justice”.”

A contrary view was expressed by McHugh J. and Kirby J. but Hayne J. agreed with the view expressed by Gleeson CJ. and Gummow J. to which we have referred.

Order 35 of the Family Law Rules made pursuant to s.112AP(3) sets out the practice and procedure in relation “to charging with contempt and the hearing of the charge.” Rule 14 of that Order provides:-

“At the hearing of an application, the court must:
(a)tell the respondent the allegation made against him or her; and
(b)ask the respondent to state whether he or she admits or denies the allegation; and
(c)hear any evidence in support of the allegation; and
(d)ask the respondent to state his or her defence to the allegation; and
(e)hear any evidence that the respondent adduces; and
(f)determine the issues raised in the application and any response; and
(g)(Omitted)
(h)make any orders that are appropriate in the circumstances.”

Her Honour thus was obliged, at the hearing of the application, to tell the husband the allegations made against, to ask him whether he admitted or denied the allegations and after hearing in the evidence in support of the allegations, ask the husband to state his defence.

Having regard to the language of s.112AP of the Act, including the possibility of committal to prison and/or the imposition of a fine if a natural person is found to be in contempt and to the Rules of Court made pursuant to s.112AP(3), in our view, properly characterised, the application before Murray J. seeking that the husband be dealt with for contempt of court was a proceeding for an offence. Whilst the acts constituting the alleged contempts in the instant case are not offences against any law of the Commonwealth, as to the meaning of which see Jerger v Pearce (1920)

27 CLR 526 at 531 and State of Western Australia v Commonwealth; Wororra Peoples and Another v State of Western Australia; Biljabu and Others v State of Western Australia (1995) 128 ALR 1 at 64, in our view, those acts, if established, constitute offences arising under an Australian law. Accordingly, the proceedings are criminal proceedings as defined in the Evidence Act and thus the standard of proof to be applied is as set out in s.141(1) of that Act, namely proof beyond reasonable doubt.

It follows, in our view, that the standard of proof to be applied in proceedings in the Family Court seeking that a respondent be dealt with for contempt of court is proof beyond reasonable doubt.

Senior counsel for the husband concluded his submissions on the issue of the standard of proof by submitting that, if we concluded that the appropriate standard of proof was proof beyond reasonable doubt, this Court should allow the appeal, set aside paragraphs 2 and 3 of the orders made on 25 May 2001 and paragraphs 1 and 2 of the orders made on 19 October 2001 and remit for rehearing the application of the wife filed on 22 March 2001. In that event, counsel for the wife submitted that in respect of the charges numbered 3A, 5, 6 and 13 “the issue of the onus of proof was not of significance or it did not matter” and that in relation to charges numbered 7, 9 and 11 “this Court on a fair consideration of the evidence … could be left with no doubt that the wife had established those charges beyond a reasonable doubt.” No arguments, however, were advanced to support the submission.

In Fleming v The Queen (supra), the High Court, in considering the provisions of ss.32 and 33 of the Criminal Procedure Act 1986 (NSW), made observations which are apposite to this case, holding that, unless the judgment of a trial Judge discloses, expressly or by implication, that a relevant principle of law has been taken into account, it is to be presumed that the principle has not been taken into account with consequent error of law. It is not to be presumed that the relevant principle has been taken into account but not recorded. In the circumstances of this case and on an overall reading of her Honour’s reasons, we cannot be satisfied that her Honour applied the appropriate standard of proof, namely proof beyond reasonable doubt, in making relevant findings in respect of the allegations denied by the husband.

In our view, notwithstanding the submissions of counsel for the wife, the decision, other than in relation to the charge numbered 13, might have been different had the criminal standard of proof been applied in relation to all charges other than the charges numbered 4 and 6. We have had an opportunity to read the judgment of

Kay J. in draft form and for the reasons given by him, we are of the view that, having regard to the appropriate standard of proof, those two charges were not established. Accordingly, the appeal in relation to those two charges should be allowed and those charges dismissed. In relation to the charge numbered 13, adopting the general thrust of the reasons of Kay J. in relation to that charge, we are of the view that, having regard to the appropriate standard of proof, namely proof beyond reasonable doubt, the charge was established before the trial Judge. We would thus dismiss the appeal in relation to the allegation of contempt found established by her Honour in relation to that charge and remit that charge for rehearing on the question of penalty.

We thus propose allowing the appeal in part, setting aside paragraphs 2 and 3 of the orders made on 25 May 2001 and paragraphs 1 and 2 of the orders made on

19 October 2001 and remitting the amended application of the wife filed on 22 March 2001 in relation to the charges numbered 3A, 5, 7, 8, 9 and 11 for rehearing by a single Judge other than Murray J. We consider that it would be appropriate to remit the charge numbered 12 which was admitted by the husband and the charge numbered 13 for rehearing on the question of penalty by Murray J.

It is accordingly not necessary for us to consider the other grounds set out in the Further Amended Notice of Appeal.

In our view, it would have been more appropriate for her Honour to have made a declaration that the husband was guilty of contempt of court arising out of the breaches of the various court orders rather than an order in terms of paragraph 2 of the orders of 25 May 2001.

COSTS OF THE APPEAL

At the conclusion of the hearing of the appeal, we did not hear counsel on the question of the costs of the appeal. In our view, it is appropriate for submissions on that issue to be in writing and we propose ordering accordingly.

ORDERS

The orders that we propose are:-

1. That the appeal be allowed in part.
2.That the charges numbered 4 and 6 stand dismissed.
3.That paragraphs 2 and 3 of the orders made on 25 May 2001 and paragraphs 1 and 2 of the orders made on 19 October 2001 be set aside and in lieu thereof it be declared that the husband is in contempt of court in that he did not retain the model car collection within the metropolitan area of Adelaide in breach of orders made on 3 February 1999 and in that he did not produce documents by way of discovery in breach of an order made on 29 June 2000 and order that the application of the wife filed on 22 March 2001 as amended be remitted for rehearing by Justice Murray in relation to the punishment for such contempts and that the application in relation to the alleged contempts numbered 3A, 5, 7, 8, 9 and 11 therein be remitted for rehearing before a single Judge other than Justice Murray.

4.(a) That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal within 21 days of the date hereof.
(b)That the other party have a further 14 days in which to make written submissions in answer thereto.
(c)That the first mentioned party have a further seven (7) days in which to make any written submissions in reply thereto.
(d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

KAY J: In this matter I have had the opportunity to read in draft the reasons for judgment proposed by Ellis and Holden JJ. Their Honours conclude that in proceedings brought under s 112AP of the Family Law Act 1975 the appropriate standard of proof to be applied is that of beyond reasonable doubt. They then conclude in paragraph 78 that:

“In the circumstances of this case and on an overall reading of her Honour’s reasons, we cannot be satisfied that her Honour applied the appropriate standard of proof, namely proof beyond reasonable doubt, in making relevant findings in respect of the allegations denied by the husband.”

As I am not in agreement with the view that her Honour applied anything less than the criminal standard of proof I find it unnecessary in the circumstances to determine whether the appropriate standard of proof is the criminal standard of beyond reasonable doubt or the civil standard on the balance of probabilities.

I find the most convenient way to deal with this appeal is to examine the other grounds of appeal relied upon and then return if necessary to these issues.

As can be seen from paragraph 24 of the reasons for judgment of Ellis and Holden JJ, her Honour found that 10 charges were proven. The appellant was then sentenced to 12 months imprisonment on the totality of those charges.

Charges 3 and 3A

Charge 3A asserted:

“That the husband disposed of the proceeds of the sale of the 520 AMP shares on or about 17 September 1999 in breach of the orders made by this Honourable Court on 25 August 1999.”

In so far as is relevant the order of 25 August 1999 provided

“2That pending the disposal and completion of these proceedings the husband… be restrained …from …dealing in…

…
(e) any …investments…;

…

(h)any banking or chequing accounts, investment account controlled or operated by the husband either solely or jointly with any other person or in any other form of partnership trust SAVE AND EXCEPT for the normal day to day requirements of the business or the husband and his family’s day to day living expenses..."

The trial in this matter had commenced on 29 March 2001. This charge was not added until 9 May 2001, the 14^th day of the trial, at a time when the husband was representing himself and was part way through his cross examination by the wife’s counsel. It was only at that stage of the trial that it had become apparent as to what the husband had done with the proceeds of some shares that he had sold at about the time the injunction was granted.

In an affidavit sworn 18 July 2000 the appellant had deposed:

“Documentary evidence of the sale of the AMP shares has not been located at present. The proceeds of the sale were used to retire debt.”

It was thus, at least on the face of it, apparent that on the husband’s own admission he had acknowledged breaching the order of 25 August 1999 by 18 July 2000.

The documents which ultimately founded the precise charge came to light in the course of the husband’s cross examination on 7 May 2001. He said (p 43):

“…I believe the information I hold at the present time confirms they were sold on the 28^th of August ‘99.
HER HONOUR: …You have got a sale note. All right?---But I haven’t tendered in to evidence, your Honour.”

A payment advice dated 25 August 1999 of 520 AMP shares was produced by the husband in the course of the cross examination on 7 May 2001 and was admitted into evidence as W44. The husband was then questioned about what happened to the proceeds:

“MR HEYWOOD-SMITH [as counsel for the respondent wife]: Right. Well now, when you receive the cheque?---Yes.
You well knew that the effect of her Honour’s order was to secure that asset for the wife?---I may not have seen the orders until well after that.
Why didn’t you pay the money into court?---I paid the money into, as I said, to reduce my liabilities.
What right do you possibly have to so dispose of those moneys, having regard to the order of the court?---I may not have seen the order of the court until after that.
Mr Tate, you were present in court on 25 August 1999 and you heard the orders made by her Honour?---I don’t know whether I did or not.
You sit there and shamefacedly now tell this court that having received that cheque within a day or two later, you used it for your own purposes. Is that what you tell this court?---I am complying to your alleged contempt charge, Mr Heywood-Smith, which is false and that’s all I’m, in effect, able to do. I said I did not sell them on the 26^th. I sold them on the 25^th, as I’ve stated.”

On the afternoon of 7 May 2001 Mr Heywood-Smith gave notice that he sought leave to amend Charge 3 which read:

“That the husband sold his 520 AMP shares on 26 August 1999 in breach of the order made by this Honourable Court on 25 August 1999.”

by adding after the word “sold” the following words “And/or alternatively disposed of the proceeds of”.

The appellant objected to the amendment saying (p 54):

“…It would prejudice me and denies me natural justice in regards to is to amend it at this late stage. I’d have to seek leave, also I suppose legal advice, your Honour, in regards to what happens in such a case, because I don’t know and whether this is customary or proper or what, your Honour.”

There was some discussion between her Honour, counsel for the wife, and the husband as to whether an amendment would be inadequate and a fresh charge might be necessary. The husband said (p 64 of Transcript 7 May 2001):

“…I’d have to seek legal advice at this point in time, your Honour. I’m not prepared to plead to something, in effect, that I think is out of the ordinary. I’d have to seek legal advice now.”

The matter was left in abeyance when counsel for the wife indicated that it might be appropriate for the husband to be invited to respond to the fresh charge of any amended charge the following morning.

On 8 May the matter was unable to proceed because of “a family crisis in Mr Heywood-Smith’s family”. When the matter returned to court on 9 May, her Honour allowed the fresh charge to be read. The husband indicated that he objected to that course being adopted, saying:

“…When I disapprove of one of the counts contempt, the other side seeks to amend, now add a charge and you instantly grant the application without hesitation. I am the person who is affected and prejudiced by this decision. Your Honour is proceeding with the matter after one of the charges have now been added, not amended. It should not allowed to be proceeded against me. All application to the other side are granted and mine are instantly dismissed. I am the person who is facing the penalty. It is my understanding that these matters should be resolved by fair and impartial basis. That is all I have to say, your Honour.”

Her Honour then ruled that as the charge arose from evidence which the husband ought to have previously discovered, it was appropriate to entertain the charge. It was pointed out to the husband that he had had time to consider and obtain legal advice about the charge being added, to which he said:

“…I said I have not sought legal advice in regards to adding a charge. I’ve sought legal advice in regards to amending and the legal advice was not to plead.”
Her Honour then took that statement as a denial of the charge.

Section 112AP(3) provides:

“The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.”

Order 35 sets out such rules of practice and procedure. In so far as they are relevant they are as follows:

“[Rule] 10 (1) If it is alleged that a person has committed a contempt of the court (except a [contempt in the face of the court]…), an application may be made to the court for the person to be dealt with for the contempt.

(2) the application must:
(a) be in accordance with Form 47; and
(b)be accompanied by an affidavit that sets out the facts sought to be relied on.

…
[Rule] 14 At the hearing of an application, the court must:

5.That within three [3] days the husband do provide to the valuer and to the wife schedules indicating which items (of model cars and collection) were acquired prior to cohabitation and which items were acquired prior to and since final separation.
…
7.That the order that the model cars and collection remain in the metropolitan area of Adelaide do continue.”

On 15 September 2000, Dawe J. ordered, inter alia: -

“1.That within 7 days from the date hereof, the husband do deliver up to the Registrar of this Court, Adelaide Registry, the full and complete model car collection, such collection to be held by the Court pending further order.”

On 26 September 2000, Dawe J. ordered, inter alia: -

“4.That the husband do by 28^th September 2000 comply with the order made by the Honourable Justice Dawe on 15^th September 2000 in relation to the delivery up of the model car collection to the Adelaide Registry of the Family Court.”

The husband sought in the course of the trial to suggest that he had complied with the orders and to the extent that the cars had appeared as a result of an Anton Piller order, they had belonged to a Mr Nasalovski. It was said towards the end of the trial on a Wednesday that Mr Nasalovski would not be available that week but could come the following week and that he was crucial to the proceeding. The trial Judge indicated that unless Mr Nasalovski was there by Friday he would not be allowed to give his evidence. There was no suggestion made to the husband to have Mr Nasalovski’s evidence taken by way of video link, which may well have been appropriate as Mr Nasalovski was said to have been in Sydney at the time.

This trial had meandered for a long time. It was clear that the husband asserted that Mr Nasalovksi was a crucial witness in the appellant’s defence. There was nothing to suggest that the husband was being anything other than accurate when he told the Court that Mr Nasalovski had waited around for many days for the trial to have reached the point where he would have to give evidence. Nor was there any suggestion that the husband was less than accurate when he said that Mr Nasalovski was temporarily unavailable.

In her Honour’s reasons for judgment she expressly rejects the husband’s story that Mr Nasalovski owned any of the cars. She said:

“136.It is clear that her Honour ordered that all the collection be valued, and the valuation provided by Mr Kabbani asserts that there were 2,665 models cars, trucks and accessories which he valued at $20,444. I find the husband's evidence that he delivered to Mr Kabbani for valuation the models which he now says he had sold to Mr Nasalowski and/or others and these were not his property to be unbelievable. This assertion forms part of his defence to both Charges 9 and 11.

…

140.As regards the husband’s defence that the present collection held by this Registry is substantially owned by Mr Nasalowski or some other person going back to at least 1992, I reject his evidence entirely on this aspect. There is no documentary evidence to establish the accuracy of this evidence. The husband conceded under cross examination that he had given no discovery of any documentation evidencing any sales or disposition by him of any part of the collection to any third person. He has had ample opportunity prior to this trial to allege that all or portion of the collection in the Registry is not owned by him. He has not done so. He failed to call Mr Nasalowski. I draw an adverse inference from this. I have already made it clear that I disbelieve his explanations as why Mr Nasalowski was not available. Evidence from his current wife might have assisted him, but he failed to call her either. I draw an inference adverse to him on this aspect as well. (See Jones v Dunkel (1958) 101 CLR 299. Mrs Kaye Tate’s affidavit is Exhibit W7. I note that she makes no mention in her affidavit of any part of the collection being owned by a third party. I note that there is no evidence that any assertion was made on the day of seizure under the Anton Piller order, that is 8 March 2001 that what was being seized belonged to another. I find that the models contained in the boxes in the Registry are owned by the husband.”

In the circumstances, when Mr Nasalovski’s evidence appeared to be crucial to the husband’s defence, and given that there was no requirement upon him to give his defence to the charges until such time as he was required to answer them, I think it unfortunate that an opportunity was not given to the husband to call Mr Nasalovski by way of video link or that a short further adjournment of the proceedings was not granted. This was after all a case involving liberty of the subject. The charges were very serious indeed. They carried with them potential for a long gaol term. Every reasonable opportunity ought to have been afforded to the husband to present his defence. Although the case had meandered far beyond that which was reasonable having regard to the matters in issue, given the crucial importance of this witness, in my view every opportunity should have been made available to ensure that his evidence was before the court. The failure to allow an opportunity to Mr Nasalovksi to be called in the circumstances so vitiates the convictions that they are unsafe to stand. I would remit these charges back for a further consideration.

Charge 13

“That the husband did not produce documents by way of discovery as ordered by this Honourable Court on 29 June 2000.”

The attack on the charge is that it lacked particularity.

When the matter had come on for hearing on 18 April 2001 the husband was represented by Mr Richards. Mr Richards submitted to her Honour:

“…the essentials of an application of this type are that there must be: identification of the order or undertaking that the respondent is alleged to be in breach of---
…
---and the details of the breach. Neither of those essential requirements is met in paragraph 13. The requirement as to the manner in which it is alleged it is breached is not even met by the proposed amendment [to specify the order said to have been breached].”

In fact, by the date of the trial the husband had been given details of 154 documents that had not been discovered but were subsequently seized under an Anton Piller order. The list of those documents appears as an annexure to the affidavit of the wife’s solicitor Margaret Jane Clareborough sworn 13 March 2001 and appearing in the Appeal Book from pp 580 –595.

The key finding of the trial Judge was the husband had few, if any, documents available to the wife for inspection although ordered to do so, and there were particular documents identified by the trial Judge:

“153.It appears clear from the exhibits which are affidavits of documents filed by the husband commencing with document 35 (Affidavit of Documents filed 14 December 1998) that he provided discovery in steps piece by piece, alleging with every affidavit of documents that those referred to in the schedules indicated were the only ones in his possession or power, with no attempt on any occasion to provide comprehensive and proper discovery. And still, by the time of trial, he failed to provide complete discovery. After 5 September 2000, the husband no longer provided a venue for inspection of documents.

154.I find that the following documents set out in the Attachment A referred to were not discovered pursuant to the order of 29 June 2000 are those items numbered 16, 21, 31, 33, 34, 35, 46, 47, 60, 67, 71 and 101. Nor did the husband discover W28, the invoice for the removal of the collection to Queensland, a fairly crucial document.

155.I find that the failure of the husband to address seriously his obligation as to discovery made the task of prosecution by the wife of her claim extremely difficult and costly.”

In my view there was ample notice given to the husband of what it was that amounted to the asserted breach. This was a case in which there had been numerous attempts to have the husband provide proper discovery of documents. Those attempts had led to a very piecemeal identification of documents and it was only by the use of an Anton Piller order that finally some semblance of reasonable discovery was obtained, without the cooperation of the husband. In the circumstances the husband was, by the time of the trial, on adequate notice of what it was that he had failed to do in respect of the discovery. The trial was conducted on that basis and there was extensive cross-examination in respect of the material about which it was said the husband had failed to properly make discovery. No procedural prejudice has been demonstrated by reason of the failure to provide any more particulars to the charge than were provided in the solicitor’s affidavit.

The facts that the charge depended on are not disputed. There was no challenge to the conclusion drawn that the facts as established amounted a flagrant challenge to the authority of the court. This charge was clearly proved beyond reasonable doubt.

Procedural Complaints

Counsel for the appellant submitted that the learned trial Judge erred in requiring the appellant (he being unrepresented) to address first and/or in refusing him an effective right of reply.

Order 30 of the Family Law Rules provides:

“1A Despite any other provision of these Rules, the court may give directions:

(a) as to the order of evidence and addresses; and

(b) generally, as to the conduct of a trial.

…

1C(3) If a respondent makes a closing address, the address must be made before a closing address is made by an applicant.”

It would appear clear that despite the apparent mandatory nature of Rule 1C(3) the court retains a discretion in an appropriate case to alter the order of addresses. Generally, in criminal law a prosecutor proceeds first, thus providing necessary information to the defendant as to the matters that need to be met in final address. There is no distinction, however, made in the Family Law Rules between cases for enforcement of orders and general proceedings inter partes seeking other relief. The Family Law Rules make no provision for a right of reply, although as a matter of fairness, a right of reply, at least on a matter of law, is generally permitted.

At the hearing on 11 May 2001 there was some discussion between counsel for the wife, the husband, and her Honour as to the order of addresses.

“MR TATE:    But can I just actually ask one question, your Honour? Is it my understanding - sorry, Mr Heywood-Smith – is it my understanding, your Honour, in effect, that Mr Heywood-Smith goes first on that?
HER HONOUR:       No, the respondent addresses first, I think it is the rule – well, I hope I have got it right, rule---
MR TATE:     I just, in effect, looked up, in effect, for prosecution cases, your Honour, under criminal law, I suppose, the actual prosecutor must go first.
HER HONOUR:       Yes, it is the – at Order 30, rule 1 – this is not a – this is only quasi criminal and I am just – just make sure that I have got it right, Order 30, rule 1. I don’t think any exemption is made for---
MR HEYWOOD-SMITH:     It is rule 1C, your Honour---
HER HONOUR:       Rule 1C.
MR HEYWOOD-SMITH:     ---1C(3).
HER HONOUR:       Just one moment, I am just having a look. If a respondent makes a closing address – and you are the respondent, as I understand it – the address must be made before a closing address is made by an applicant. Now, I might say that that is not an improvement on the original rule where the judge could decide who called who first, but now it is mandatory that if you make a closing address you have to make it before the applicant does.
MR TATE:     Thank you, your Honour.
HER HONOUR:       You are on your feet, Mr Heywood-Smith, have I read it wrongly?
MR HEYWOOD-SMITH:     No, I think your Honour is quite right, but, your Honour, I indicated the other day that our submission – that we intended to give to your Honour a partly written submission.
HER HONOUR:       Yes.
MR HEYWOOD-SMITH:     I will undertake, if I can have an address, somewhere to deliver it, to provide to Mr Tate a copy of that written submission, say, by 12 o’clock today, if your Honour proposes to do it at 2.15 that might assist the husband because I---
HER HONOUR:       Well, actually, in a way I think it would be because he, after all, is probably not as used to making closing addresses as you are---
MR HEYWOOD-SMITH:     Quite so, your Honour.
HER HONOUR:       ---Mr Heywood-Smith. So would that be helpful to you, Mr Tate, to---
MR TATE:     It would---
HER HONOUR:       ---in other words, to know in advance what the closing address would be on Mr Heywood---
MR TATE:     That is fine, your Honour, all I was going to actually ask is that we both do it at the same time.
HER HONOUR:       Well, I mean, you know, one after the other.
MR TATE:     The other, yes, your Honour.
HER HONOUR:       Yes, but---
MR TATE:     Not a lapse in the middle.
HER HONOUR:       Yes, but if Mr Heywood-Smith ---
MR TATE:     Yes, your Honour.
HER HONOUR:       ---gives you an idea of what he is going to say ---
MR TATE:     Thank you, your Honour.
HER HONOUR:       ---that really does equip you, which is more than the rules require him to do.
MR TATE:     Thank you. Well, as I said, thank you, your Honour. He does not have to, I have no problems at all.
HER HONOUR:       All right, well, whatever. Thank you.
MR HEYWOOD-SMITH:     Yes, thank you, your Honour.”

Whilst it appears clear from Rule 1A that her Honour was in error when she described Rule 1C as mandatory, in my view, given the matters that subsequently transpired there would be no basis for appropriately upholding this appeal on the ground that the husband was denied any procedural unfairness in so far as he was not given an opportunity to address second. Indeed, there was nothing that counsel on behalf of the appellant pointed us to which would indicate that there was any such procedural unfairness other than the general principle that generally in criminal proceedings a respondent ought address second.

So far as the right of reply was concerned, after Mr Heywood-Smith had completed his address her Honour said:

“…I should ask Mr Tate. I take it there is no reply from you as regards the law. That is the only time that a reply is allowed.
MR TATE: No, your Honour.”

Her Honour then adjourned the proceedings.

The law on the extent of a right of reply is less than settled. In Yaghoubi and David ([1999] FamCA 418 unreported) the Full Court (Nicholson CJ, Lindenmayer and Warnick JJ) said:

“56 … it is a generally accepted practice throughout most courts, including this one, that counsel who addresses before another has a right of reply to the address of that other at least on matters of law (although, at first instance, not on matters of fact).”

In Greves and Greves ([2000] FamCA 1922 unreported) Lindenmayer J said:

“6. The rules and the practices of Courts in England and Australia, in relation to the rights of counsel (or unrepresented parties) to make closing speeches, and the order and content of such speeches, have varied from court to court and from time to time, and there appears to be no universal practice about such matters across all courts in Australia, or England, even at this time.”

The Family Court Rules are silent on the issue. The previous English Rules of Supreme Court Order 35 rule 7 limited a speech in reply to a point of law or in reply to an authority cited by the opposite party. The Rules of the High Court are silent on the order of speeches. The Federal Court Rules are silent on the right of reply.

As with the issue of order of addresses, the objection raised by counsel for the appellant appears to be a theoretical one in that nothing was put to us which would indicate how, in the circumstances, the appellant was in any way disadvantaged by the direction of the trial Judge as to any limitations that would be placed on his right of reply.

In the circumstances, in my view, there is no basis with interfering with her Honour’s conclusions arising out of the manner in which she dealt with the appellant’s right of reply.

Standard of proof

I commenced my reasons for judgment by indicating that nothing had been put to us to show where her Honour had relied upon an inappropriate standard of proof. Prima facie, a successful party is entitled to the benefit of the judgment obtained and is entitled to commence with the assumption that the judgment is correct (see Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, 627). Absent any material that would lead me to assume there was any real doubt about her Honour having applied an incorrect test as to the standard of proof, I am prepared to assume that her Honour has correctly acted according to law. Further, as I have stated, at least in regard to Charges 5 and 13, the relevant facts are not in dispute.

I do not find the High Court judgment of Fleming v The Queen (1998) 197 CLR 250 of assistance in determining this point. It was a case that concerned itself with the proper implementation of the provisions of ss.32 and 33 of the Criminal Procedure Act 1986 (NSW). In particular s 33(2) specifically requires a judge sitting in lieu of a jury in a criminal matter to which that act applies to include in the judgment “the principles of law applied by the Judge and the findings of fact on which the Judge relied”. As their Honours said (emphasis added)

“37…[any such] judgment must show expressly or by necessary implication that the warning was taken into account. If the judgment does not do so, a breach of s 33(3) has occurred. “

There is no such statutory duty applicable to a Judge determining a contempt application under the provisions of the Family Law Act 1975 (Cth).

It seems clear to me from a reading of her Honour’s findings on issues of credit that any factual findings made, where there was a conflict of evidence between the husband and the wife, were made well within a concept of beyond reasonable doubt.

Her Honour said:

“89.On all matters, the credit of each of the parties and the husband's witnesses goes to the nub of the matter.
I find that the wife is a patently honest witness.

90.I have sat for 28 years on the bench, and have always restrained myself from finding any witness to be an unmitigated liar. In these proceedings I am very tempted to depart from that restraint, but in these proceedings will only say that I have such a low opinion of the husband’s credit, that I am not prepared to believe any of his evidence unless it is corroborated by reliable evidence, preferably written. The husband's credit was partly destroyed by inconsistencies in his affidavit evidence but mostly under cross-examination. The only reliable witness called by the husband was Mr David Kabbani.
I was not overly impressed by the reliability of Mr Pado but I will come to him later.
It therefore follows that wherever the evidence of the wife conflicts with that of the husband, I prefer the evidence of the wife.”

Then, at paragraph 120, when discussing Charges 5 and 6 relating to the placement of the Greetland money in the husband’s trust account, her Honour said:

“…I do not believe any of his evidence of discussions with his sister and mother.”

On the issue of dealing with the husband’s shares in Greetland, her Honour said at paragraph 125:

“ I find the husband’s explanations as to how the white outs came to be made and how the transfer came to be made quite unbelievable.”

126 I find that he has failed to be truthful about any aspect of this transaction.”

Her Honour described the husband’s behaviour with Greetland as:

“a blatant and contumacious attempt on the part of the husband to thwart the orders of this court.”

As earlier indicated, in order to attract the penalties which flow as a result of a breach of s 112AP it is necessary for the purposes of this case for the wife to have shown not only that there had been a breach of an order, but that the breach of the order involved a flagrant challenge to the authority of the court. Nothing was put to us on behalf of the appellant to suggest that if the findings of fact were appropriately made, the behaviour of the appellant in the circumstances did not amount to such a flagrant challenge to the authority of the court.

Sentence

Her Honour imposed a sentence of imprisonment upon the appellant in her judgment of 19 October 2001. Although she was invited to impose separate penalties in respect of each of the ten counts that she found proved, she ultimately imposed one overall penalty of 12 months imprisonment.

Given that the effect of allowing the appeal in the manner in which I have outlined leaves only four of the 10 counts upon which her Honour imposed a sentence still intact, in my view the sentence as imposed cannot stand and the matter must be remitted to her Honour for re-sentencing on those four counts alone.

Summary of conclusions

The appeals against Charges 3A, 4, 6, 9 and 11 should be allowed.

Charges 3A, 9 and 11 should be remitted for retrial before a judge other than her Honour.

Charges 4 and 6 should stand dismissed.

There was no appeal against Charge 12 and Charges 5, 7, 8 and 13 are sustained. The period of one year’s imprisonment imposed by her Honour should be set aside and the matter remitted to her Honour for re-sentencing in respect of those charges.

Costs

It is appropriate now to make directions enabling each party to make submissions in respect of any questions of costs that arise as a result of this judgment.

The orders that I would propose are:

1. That the appeal be allowed.

2.That Order 2 of the orders of the Honourable Justice Murray made 25 May 2001 be varied by deleting therefrom the figures “3A”, “4”, “6”, “9”, and “11”.

3.That Charges 3A, 9 and 11 referred to in the reasons for judgment of the Honourable Justice Murray published 25 May 2001 be remitted for rehearing before a judge of the Family Court of Australia at the Adelaide Registry other than Justice Murray.

4.That Charges 4 and 6 of the charges referred to in the said judgment stand dismissed.

5.That Order 1 of the orders made 19 October 2001 by the Honourable Justice Murray be set aside.

6.That Charges 5, 7, 8, 12 and 13 as referred to in the judgment of the Honourable Justice Murray of 25 May 2001 be remitted to her Honour for the imposition of an appropriate sentence or sentences.

7.The appellant be at liberty to file and serve written submissions as to costs of this appeal within twenty-one (21) days of this date.

8.The respondent be at liberty to file and serve written submissions in answer thereto and in relation to costs generally within fourteen (14) days thereafter.

9.The appellant be at liberty to file and serve written submissions in reply thereto within a further seven (7) days.

I certify that the preceding 174 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.

Associate

[2002] FamCA 356

30 May 2002