Theo and Theo
[2011] FamCA 341
FAMILY COURT OF AUSTRALIA
| THEO & THEO | [2011] FamCA 341 |
| FAMILY LAW – CONTEMPT – Application by husband alleging the wife was in contempt of court orders – Whether the wife had knowledge of the contents and meaning of the orders – Whether court should exercise discretion under rule 7.02(1) of the Family Law Rules to find that the wife had been served with the husband’s application for contempt – Where requirement under rule 7.03 of the Family Law Rules is “special service by hand” – Where husband failed to establish beyond a reasonable doubt – Contempt application dismissed. |
| Family Law Act 1975 (Cth), s 112AP Family Law Rules 2004, r 7.03, 7.04 |
| Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 LGM v CAM (2006) 35 Fam LR 124 |
| APPLICANT: | Mr Theo |
| RESPONDENT: | Ms Theo |
| FILE NUMBER: | BRC | 6164 | of | 2010 |
| DATE DELIVERED: | 4 April 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 18 January 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Carter Farquar Mediation & Family Law |
| SOLICITOR FOR THE RESPONDENT: | No Representation |
Orders
The husband’s contempt application filed on 30 June 2010 and application in a case filed on 6 December 2010 are dismissed.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: BRC 6164 of 2010
| Mr Theo |
Applicant
And
| Ms Theo |
Respondent
REASONS FOR JUDGMENT
The Proceedings
This is the application of the husband, Mr Theo, that the wife, Ms Theo, be dealt with for contempt of court pursuant to section 112AP of the Family Law Act 1975 (Cth). He filed this application on 30 June 2010. In a Summary of Argument submitted on his behalf, it was indicated that the husband sought the following orders:
9. That service of the Application – Contempt, and the supporting Affidavit of the Husband, both filed on 30 June 2010 be held to have been effected upon the Wife.
10. That the Application – Contempt filed 30 June 2010 be dealt with in the absence of the Wife.
11. That the Wife be held to be in contempt of the Orders of the Full Court made at Brisbane on 16 March 2007, and in particular paragraph 3 of those Orders.
12. That the Wife be held to be in contempt of the Orders of Jordan J made at Brisbane on 29 October 2009, and in particular paragraphs 2,3 and 4 of those Orders.
13. That the Wife be sentenced to imprisonment for a period of at least 12 months.
14. That a warrant issue for the arrest of the Wife.
15. That a request issue to the Attorney General of the Commonwealth of Australia seeking his assistance in relation to the execution of the warrant for the arrest of the Wife.
I am asked to take these drastic steps in circumstances where the wife is believed to be in Norway and has taken no part whatsoever in the contempt proceedings. She has not been personally served with the application for contempt, nor any supporting affidavits.
On 6 December 2010 the husband filed an Application in a Case, seeking the following orders:
“1. That the court deems the respondent wife to have been served in these proceedings through the collection from [N Couriers] on 3 September 2010 by [Mr R] of the Application – Contempt filed 30 June 2010 and the Affidavit of the applicant filed 30 June 2010.
2. The court orders that any further service of the Respondent Wife can be effected by delivery by way of registered international post to the address [Property G, Norway] and to [Unit R, Norway].”
Background
The following background material is extracted from affidavits sworn by the husband and his solicitor, Damien Charles Carter. As noted, the wife has offered no affidavit evidence whatsoever.
On 22 September 2005 Jordan J made orders for property settlement. Inter alia, his Honour ordered that the husband pay to the wife the sum of $200,000 on account of her costs in those proceedings.
On 16 March 2007 the husband’s appeal against that costs order was allowed. The Full Court ordered that the wife hold the sum of $200,000 upon trust for herself and the husband, pending further hearing and determination of the costs issues.
The costs dispute was before the court on the following dates:
4 April 2007
24 May 2007
17 April 2008
16 June 2008
2 October 2008
16 December 008
9 April 2009
The wife was present and represented on 4 April 2007 and 25 May 2007. On the latter date, her counsel indicated that the costs issues were complex and would require 15 days of hearing time.
On 5 December 2007 staff of the court advised the husband’s solicitor that the hearing of the costs issue was listed for 15 days to commence on 16 August 2008. The matter was mentioned on 17 April 2008, when there was no appearance of or on behalf of the wife.
On 17 April 2008 Jordan J made directions to the effect that service upon the wife could properly be effected by mail at her last known address in Brisbane and at two locations in Norway.
On 5 November 2009 Jordan J declared that he was satisfied that the wife had been served and was aware of the proceedings. His Honour found that the wife had evinced an intention not to participate in the proceedings and heard the matter on an undefended basis. Jordan J dismissed the wife’s application for costs and ordered that she pay to the husband the amount of $200,000 which was held pursuant to the orders of the Full Court. The wife has not complied with these orders.
Under cover of a letter dated 10 August 2010 the husband’s solicitor forwarded to the wife copies of:
·Application for Contempt filed on 30 June 2010
·Affidavit of the husband sworn on 30 June 2010
·Copy of a warrant for arrest
·Copy of a letter from the Family Court of Australia dated 2 July 2010
·Acknowledgement of Service
These documents were forwarded to the wife at Unit R. This letter advised the wife that the contempt proceedings were returnable on 13 October 2010.
This address was different to the two Norwegian locations specified in the orders as to service made by Jordan J on 17 April 2008. The husband’s solicitor deposed that his client told him that he discovered this address for the wife by way of a Google search.
The husband’s solicitor also deposed that his client told him that he had discovered by Google search an address and telephone number for “[Mr R]”, who he said was the wife’s adult son. The husband’s solicitor then engaged the firm N Couriers to deliver documents to the wife at this address. On 3 September 2010 the husband’s solicitor received a report from an employee of N Couriers to the effect that “[Mr R]” had collected these documents.
Approach to Section 112AP Proceedings
The husband’s application is brought pursuant to section 112AP of the Family Law Act, which provides as follows:
Contempt
(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 or an order under this Act within the meaning of Part XIIIA.
The husband’s uncontested evidence was that the wife has failed to make payment to him in accordance with the orders of Jordan J. It then falls to the husband to establish the elements of contempt beyond reasonable doubt: In the Marriage of Tate (2002) 29 Fam LR 195.
It is well established that there should normally be strict compliance with procedural rules in an application brought pursuant to section 112AP. In LGM and CAM (Contempt) (No 2) (2008) 38 Fam LR 229 Finn J said:
I would not want my conclusion in this case to be taken as in any way undermining the importance of adherence to the rules concerning proper service of contempt applications, and in this regard I endorse the following remarks by his Honour in his reasons for judgment:
8. It is the case, and has been for well over a century, that procedural requirements for contempt proceedings are to be strictly adhered to unless there are strong reasons to do otherwise. As proceedings in which the respondent faces the possibility of imprisonment or other penalty, the applicant in the court must take them very seriously. As a mark of this seriousness the rules are generally strictly applied.
The Relevant Issues
In my view, I must determine the following issues, on which the husband bears the burden of proof beyond reasonable doubt:
1.Did the wife have knowledge of the contents and meaning of the orders of Jordan J?: LGM v CAM (2006) 35 Fam LR 124 per Holden and Coleman JJ.
2.Does the wife’s failure to comply with these orders constitute “a flagrant challenge to the authority of the court”?
3.Should the requirements of rule 7.03 of the Family Law Rules 2004 for “special service by hand” of an application pursuant to section 112AP be dispensed with and an order for substituted service be made?
4.Is it appropriate to make any of orders sought by the husband when the wife is beyond the jurisdiction of the court?
1. The Wife’s Knowledge of the Contents and Meaning of the Orders of 5 November 2009
The wife was not present nor legally represented when the orders were made. There is simply no evidence that could satisfy the court, to the requisite standard, that these orders have ever been served upon her or that she has come to know of their contents and meaning in any other way.
Taking the husband’s case at its highest, the wife may have received copies of his Application for Contempt and affidavit sworn on 30 June 2010, in which reference is made to the existence of these orders. No sealed copy of the orders was enclosed in any of the documents forwarded to the wife and/or purportedly collected by her son in Norway.
For these reasons I find that the husband failed to establish that the wife has knowledge of the contents and meaning of the orders of 5 November 2009. That being so, his application must be unsuccessful. If I am erroneous in making this finding, however, it seems to me that the husband’s application must fail for additional reasons to which I refer below.
2. Does the Wife’s Failure to Comply with the Orders of 5 November 2009 Amount to “A Flagrant Challenge to the Authority of the Court”?
If I am not satisfied that the wife has knowledge of the contents and meaning of the orders of 5 November 2009, it would be illogical in one sense to conclude that her failure to comply constitutes “a flagrant challenge to the authority of the court”. On the other hand, the wife’s actions in removing herself from the jurisdiction when the husband’s application for costs was yet to be determined might reasonably be viewed in that light. It is unnecessary that I determine this issue, however, because I conclude that the husband’s application must fail for other reasons.
3. Service
The requirement for service of an Application for Contempt is contained in rule 7.03, which provides for “special service by hand”. That phrase is defined by rule 7.04 as follows:
Service of filed documents
(1) A document that is filed must be served on each person to be served:
(a) as soon as possible after the date of filing and within 12 months after that date; or
(b) if a provision elsewhere in these Rules specifies a time for service — within the specified time.
Note If a document is not served within the time required, service after that time is ineffective unless the court otherwise orders (see rules 1.12, 7.02 and 11.02).
(1A) A person who serves a document filed by electronic communication must:
(a) if the Registry Manager has sent the person who filed the document a communication recording the date of filing —ensure that a copy of the communication is served; or
(b) in any other case — write on the front of the served copy of the document the date of filing.
(2) Despite subrule (1) and rule 7.03, the following documents do not have to be served on any other party:
(a) a joint application;
(b) an application without notice;
(c) an Affidavit of Service;
(d) a document signed by all parties;
(e) an affidavit seeking the issue, without notice, of an Enforcement Warrant under rule 20.16 or a Third Party Debt Notice under rule 20.32.
Note A draft consent order signed by all parties does not have to be served on the other parties to the application. However, if an order is sought affecting a superannuation interest, it must be served on the trustee of the superannuation fund in which that interest is held (see rule 10.16).
(3) If a document or notice is served on or given to a party under these Rules, a copy of the document or notice must also be served on or given to any independent children’s lawyer.
(4) For subrule (1):
"each person to be served", for a case, includes:
(a) all parties to the case;
(b) any independent children’s lawyer; and
(c) any other person specifically required by a legislative provision or order to be served in the case.
Note Special service of a document may be performed by delivering the document:
• to the person to be served by hand (see rule 7.06) or by post or electronic communication (see rule 7.07); or
• if a lawyer representing the person undertakes, in writing, to accept service of the document, by delivering it to the person’s lawyer (see rule 7.08).
On no construction of the husband’s case could I be satisfied that the wife has been served with the husband’s Application for Contempt as required by these Rules. The question then is whether I should exercise the discretion permitted by rule 7.02(1) which states:
Court's discretion regarding service
(1) A court may find that a document has been served or that it has been served on a particular date, even though these Rules or an order have not been complied with in relation to service.
Alternatively, this issue might be cast within the terms of regulation Rule 7.18 which states:
Service with conditions or dispensing with service
(1) A party who is unable to serve a document may apply, without notice, for an order:
(a) to serve the document in another way; or
(b) to dispense with service of the document, with or without conditions.
(2) The factors the court may have regard to when considering an application under subrule (1) include:
(a) the proposed method of bringing the document to the attention of the person to be served;
(b) whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served;
(c) whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available;
(d) the likely cost of service; and
(e) the nature of the case.
(3) If the court orders that service of a document is:
(a) dispensed with unconditionally; or
(b) dispensed with on a condition that is complied with;
the document is taken to have been served.
Note An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).
The husband relies on the orders and directions as to service made by Jordan J on 17 April 2008 and submits that this procedure should be sufficient for the purposes of the Application for Contempt. It seems to me that there is a serious flaw in this submission.
The orders of Jordan J were made in the context of service of documents relating to the costs dispute. At worst, the wife could have incurred suffer adverse financial consequences as a result of those proceedings. By contrast, she could suffer the loss of her liberty as a consequence of the husband’s application for contempt. In fact, he seeks that she be arrested and imprisoned for “at least 12 months”. It seems to me that the court must take great care to ensure that the wife is aware of the precise terms of the husband’s application in these circumstances which are substantially and significantly different to those facing Jordan J on 17 April 2008.
In LGM & CAM (Contempt) (No 2) Bryant CJ and Warnick J stressed the importance of ensuring that the respondent to a contempt application is aware of the charges. Their Honours said at paragraph 62:
While in other circumstances, for example where a respondent did not appear, we might think that it was insufficient to proceed with a contempt application to find that it has come constructively to the notice of that respondent, there is no question here of whether or not the wife was aware of the charges. She appeared, nothing was said about service on her behalf, the charges were read to her and she pleaded to them.
In that case their Honours were considering circumstances in which the respondent wife was present and legally represented throughout the hearing of the husband’s application for contempt. No issue as to service was taken until final submissions were made on her behalf. In my view those circumstances are clearly distinguishable from the present facts, where the husband cannot establish beyond reasonable doubt that the wife knows of the contents and meaning of the orders of 5 November 2009 nor that she is aware of his application for contempt. Certainly, the husband cannot establish that she is aware that he seeks that she be arrested and imprisoned for a minimum of 12 months.
In these circumstances I am not prepared to dispense with the requirement of “special service by hand”. The potential consequences for the wife are simply too serious, in my view, for that step to be taken.
4. The Appropriateness of the Orders Sought by the Husband
There is no reason to suppose that any orders for the arrest and imprisonment of the wife could be enforced while she remains in Norway. The Extradition (Norway) Regulations 1988 (Commonwealth) provide that “an extraditable offence” must be punishable by imprisonment for more than one year or by a more severe penalty (article 4(1)). The husband seeks that the wife be imprisoned for “at least 12 months” but that might reasonably be considered an inappropriately harsh penalty.
It is well established that, as a general proposition, a court should exercise a discretion against making orders which are incapable of enforcement. For example, in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 the Full Court of the Federal Court said:
On the question of futility, that is, the lack of means of making an injunction effective, we also disagree with the approach of the primary judge in several respects. First, while it may be accepted that an injunction is by its nature a discretionary remedy which may be refused, if it cannot be enforced…” (per Black CJ and Finkelstein J) and
“The factor which results in me not being positively satisfied that leave should be granted is the almost certain futility of the litigation the application wishes to pursue… (per Moore J).
Conclusion
For all of these reasons, I find that the husband’s application for contempt must fail. Accordingly, I dismiss the application pursuant to section 112AP filed on 30 June 2010 and the Application in a Case filed on 6 December 2010.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 4 April 2011.
Associate:
Date: 4 April 2011
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