Theo and Theo

Mr Theo (the husband) applied to the Family Court of Australia alleging that Ms Theo (the wife) was in contempt of court orders. The husband sought orders that the wife be found in contempt of orders made on 16 March 2007 and 29 October 2009, and that she be sentenced to imprisonment and arrested. The wife, who was believed to be in Norway, had not been personally served with the contempt application and did not participate in the proceedings.

The court was required to determine several legal issues. These included whether the wife had knowledge of the contents and meaning of the orders she was alleged to have contravened, whether her failure to comply constituted a flagrant challenge to the authority of the court, and whether the court should exercise its discretion under rule 7.02(1) of the Family Law Rules 2004 to dispense with the requirement for "special service by hand" under rule 7.03 and make an order for substituted service. The court also considered whether it was appropriate to make any of the orders sought by the husband given the wife's location outside the court's jurisdiction.

Stevenson J found that the husband had failed to establish beyond a reasonable doubt that the wife had knowledge of the contents and meaning of the orders of 5 November 2009. The evidence did not demonstrate that the wife had been served with a sealed copy of the orders, nor that she had acquired knowledge of them through any other means. While the wife may have received copies of the contempt application and supporting affidavit, these documents did not include the relevant sealed orders. Consequently, the husband's application was unsuccessful on this ground.

The husband's application for contempt was dismissed. The court noted that even if it were mistaken in its finding regarding the wife's knowledge, the application would likely fail for other reasons, including the failure to comply with the strict procedural requirements for service of contempt applications. The court emphasised the importance of adherence to rules concerning proper service in contempt proceedings, as respondents face the possibility of imprisonment or other penalties.