FAMILY LAW – PROPERTY – contempt application – whether contempt application properly pleaded – whether the contempt application be struck out, or summarily dismissed, for want of particularity – consideration of Court’s power to strike out applications –consideration of whether leave be granted to amend contempt application – indemnity costs sought and refused – costs reserved – leave granted to amended application and request further or better particulars.
Mr Batey and Mr Wong on 1 December 2020 Ms Gillies SC and Mr Wong on 15 December 2020
SOLICITOR FOR THE APPLICANT:
Finn Roache Lawyers
COUNSEL FOR THE RESPONDENT:
Mr Moses SC and Mr Wong
SOLICITOR FOR THE RESPONDENT:
Barkus Doolan
Orders
The Applicant have leave to file an amended contempt application within 14 days of the date of this order.
The Respondent may request further and better particulars within 14 days thereafter, and such particulars must be provided 14 days after the making of such request.
The matter be listed for Mention before me with respect to the Contempt Application only on 23 April 2021 at 9am.
Each parties’ costs be reserved.
IT IS NOTED THAT:
A.The purpose of the Mention is to assess the readiness of the Contempt Application to be heard, and once the Court is satisfied of same, it will be listed before Altobelli J for hearing.
B.The substantive issues in the matter are otherwise to be case…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Vail and Vail (No 4) [2021] FamCA 106
Case
[2021] FamCA 106
Decision Date
CaseChat Overview and Summary
The Family Court of Australia considered an application by the Respondent husband to strike out the Applicant wife’s Contempt Application. The wife's application alleged breaches of orders made on 9 September 2020, specifically relating to spousal maintenance, the drawing of funds from a company, failure to provide financial details, and the use of company accounts and credit cards. The husband contended that the contempt charges were ambiguous, vague, and contained multiple breaches within a single charge, making it impossible for him to defend them.
The legal issues before the Court were whether the Contempt Application was properly pleaded and whether it should be struck out or summarily dismissed for want of particularity. The Court also considered its power to strike out applications and whether leave should be granted to amend the application. The husband sought indemnity costs, which were refused, and costs were reserved.
The Court noted that the Family Law Rules 2004 do not provide for the "striking out" of applications since pleadings were abolished. It interpreted the husband's oral application as one for summary dismissal, likely on the basis that the application was frivolous, vexatious, an abuse of process, or had no reasonable likelihood of success, invoking Rules 10.12 to 10.14. However, a difficulty arose as Rule 10.12 applies "after a response has been filed," and no formal response had been filed. The Court considered that the husband's oral application could be treated as a response for the purposes of Rule 10.12, and that Rule 10.13 might also apply. Any ambiguity in the Court's powers was potentially resolved by section 38(2) of the Family Law Act 1975, which incorporates the High Court Rules 2004, specifically Rule 27.09 concerning summary disposition.
The Court granted the Applicant wife leave to file an amended contempt application within 14 days. The Respondent husband was given 14 days thereafter to request further and better particulars, which were to be provided within 14 days of such request. The matter was listed for a mention on 23 April 2021 to assess the readiness of the Contempt Application for hearing, with substantive issues to be case managed by the docket Registrar. Each party's costs were reserved.