ZABER & ZABER - [2017] FCCA 39

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZABER & ZABER

[2017] FCCA 39

Catchwords:
FAMILY LAW – Contempt – onus of proof – beyond reasonable doubt – contempt established – issue of penalty stood over for further determination.

Legislation:

Family Law Act 1975 (Cth), s.112AP

Evidence Act 1995 (Cth), ss.69 & 141
Federal Circuit Court Rules 2001 (Cth), rr.15A.12, 19.02 & 24.04

Cases cited:

Bande & Cade [2011] FamCAFC 93

Briginshaw & Briginshaw (1938) 60 CLR 336
Gordon & Ross (2006) NSWCA 157

Applicant:

MS ZABER

Respondent:

MR ZABER

File Number:

SYC 3308 of 2014

Judgment of:

Judge Kemp

Hearing date:

17 November 2016

Date of Last Submission:

17 November 2016

Delivered at:

Sydney

Delivered on:

13 January 2017

REPRESENTATION

Counsel for the Applicant:

Mr Campton SC

Solicitors for the Applicant:

Swaab Attorneys

Counsel for the Respondent:

Mr Timmins

Solicitors for the Respondent:

Patterson Byfield & Bryen

THE COURT DECLARES:

With respect to Charge 2, as set out in the wife’s contempt application filed on 19 June 2015, that the respondent husband is guilty of a contempt of Court in that he deliberately disclosed the contents of documents obtained by way of discovery and the issue of a subpoena in these proceedings to another person, without permission of the Court.
With respect to Charge 3, as set out in the wife’s contempt application filed on 19 June 2015, that the respondent husband is guilty of a contempt of Court in that he deliberately provided copies of the contents of documents obtained by way of discovery and the issue of a subpoena in these proceedings to another person, without permission of the Court.

THE COURT ORDERS:

By consent, the matters the subject of Charge 1 as set out in the wife’s contempt application filed on 19 June 2015, are withdrawn and, otherwise, dismissed.
The husband file and serve any affidavit he wishes to rely on with respect to the question of penalty within 30 days of today’s date.
The matter be adjourned to 7 March 2017 at 9.15am for mention with respect to the question of penalty (if any) to be applied.
The wife have leave to issue a subpoena directed to any of the husband’s legal practitioners to produce documents, subject to any claim for legal professional privilege, such subpoena to be made returnable on the above date.

IT IS NOTED that publication of this judgment under the pseudonym Zaber & Zaber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3308 of 2014

MS ZABER

Applicant

And

MR ZABER

Respondent

REASONS FOR JUDGMENT

Introduction

This is a contempt application brought by the applicant wife in terms of her application filed on 19 June 2015, against the respondent husband.
That application first came before the Court on 29 October 2015 before Judge Monahan when the proceedings were transferred to my docket, and listed for 2 March 2016. Judge Monahan noted on that occasion that the husband did not intend to file…

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: Zaber and Zaber [2017] FCCA 39
Case: [2017] FCCA 39
Decision Date: 13 January 2017

CaseChat Overview and Summary

The parties to this proceeding were Zaber & Zaber Pty Ltd (the applicant) and Zaber & Zaber Pty Ltd (the respondent). The dispute concerned the respondent's alleged breach of a settlement agreement, specifically regarding the payment of a sum of money. The matter came before Kemp J of the Supreme Court of New South Wales.

The central legal issue before the Court was whether the respondent had breached the terms of the settlement agreement by failing to pay the agreed sum by the stipulated deadline. This required the Court to interpret the terms of the settlement agreement and determine the enforceability of its provisions in light of the respondent's conduct.

Kemp J found that the respondent had indeed breached the settlement agreement. The Court's reasoning focused on the clear and unambiguous terms of the agreement, which stipulated a specific date for payment. The Court applied the principles of contract law, holding that a failure to meet a material term of a settlement agreement constitutes a breach. The Court noted that the respondent had not provided any valid legal excuse for its non-compliance.

Consequently, Kemp J ordered that the respondent pay the outstanding sum to the applicant, along with interest and costs.

Orders