March 2019 Family Law Case Watch
22 March 2019
By Lisa Wagner & Stephanie Ordanoska
Our March 2019 Family Law case, Stradford & Stradford  FamCAFC 25 focuses on the approach taken by the Family Court in respect of the husband’s failure to provide full and frank disclosure which resulted in his imprisonment.
The parties had property settlement proceedings listed for Hearing before the primary judge on 10 August 2018. Both parties were unrepresented. The primary judge was not satisfied with the husband’s financial disclosure material and adjourned the matter to 26 November 2018 for Mention and directed the husband to provide particular documents to the wife by 5 November 2018 and file an Affidavit setting out what documents were provided.
In making Directions on 10 August 2018, the primary Judge made Notations that if the husband failed to provide full and frank disclosure in accordance with the Orders, he should be dealt with for contempt.
Section 17 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCC Act”) provides the Federal Circuit Court of Australia the power to punish a contempt of its authority. However, that authority may only be utilised to punish contempt committed in the face or hearing of the Court. The Family Law Act 1975 (CTH) (“the FLA”) makes a distinction between contempt (Part XIIIB) and sanctions for parties’ failure to comply with orders (Part XIIIA).Contempt is defined in the legislation as a contravention of an order which involves a “flagrant challenge to the authority of the Court”. A person will have contravened an order where the person is bound by the order and they have “intentionally failed to comply with the order or made no reasonable attempt to comply”.
The legislation provides that contempt must be established on the criminal standard of proof, i.e. beyond reasonable doubt. As contempt is considered a crime, a breach of orders should be considered as being contempt only in exceptional circumstances.
Rule 19.02 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) contains provisions for who may make an application to the Court for a person to be dealt with for contempt and the mandatory requirements to be followed in such an application. All of those provisions reflect the basic principles of natural justice where liberty is potentially at risk. For example, rule 19.02(7) provides that after hearing evidence in support of an allegation of contempt, the Court may, if it decides there is a prima facie case, invite the person to state their defence and, after hearing the defence, determine the charge. Only if the charge is proved, may the Court make an order for the punishment of the person (rule 19.02(8)).
The sanctions that are available to be imposed by the Court include fines, bonds, particular orders and imprisonment (112AD of the FLA).
The primary judge in this case determined that the matter should proceed as a contempt rather than a contravention in the event that the husband breached the orders. This decision was made in advance of any breach made by the husband and prior to any application being filed for contempt or a breach of the orders. The primary Judge stated:
“…believe me, if there isn’t full disclosure there will be consequences, because that’s what I do. If people don’t comply with my orders there’s only one place they go. Okay. And I don’t have any hesitation in jailing people for not complying with my orders.”
The statements made by the primary Judge in this case clearly indicated prejudgement by declaring that any breach would be dealt with as a contempt and that the husband would be sentenced to imprisonment.
When the proceedings came before another Judge for Mention on 26 November 2018, evidence had been filed by the husband that some disclosure had been provided however argued that other documents were not in his possession, power or control. The wife contended that the husband omitted documents that he would have been able to obtain.
The Judge on that occasion, did not adjudicate on that dispute nor did she resolve any question as to whether or not the husband had failed to comply with the Orders made on 10 August 2018. The matter was adjourned to 6 December 2018 for hearing of the contempt application before the primary Judge.
The matter was returned to the primary Judge on 6 December 2018. The Judge did not accept the husband’s evidence that he tried in good faith to provide every aspect of the requested financial documents.
During this Hearing, the wife stated that all she wanted was to achieve a fair property settlement. She emphasised to the Court that she and the husband had children together so she did not want the husband to be charged with contempt. She said, “…we have kids together that I have to think about as well… this affects the kids for the rest of their lives”.
The Judge replied to these statements:
“I can see that that’s not what you particularly want… you don’t want him to be going to jail unnecessarily, because that’s exactly where he is going to be going… I’m the one who sends him to jail, not you… I don’t want you to have that guilt”.
The Judge sentenced the husband to prison and had a warrant issued for his immediate transfer to gaol.
In conclusion, on Appeal
On Appeal, it was found that there was no feature in this case which warranted, in the broader interests of justice, any departure from the requirements of rule 19.02. According to the Appeals Court, the husband’s evidence was not given proper weight nor was he provided a fair opportunity to explain his evidence or defend himself against any charge of contempt laid. In addition, the wife’s wishes for the husband not to be sentenced to imprisonment were not taken into account. It was said that:
“It is difficult to envisage a more profound or disturbing example of pre-judgment and denial of procedural fairness to a party on any prospective orders, much less contempt, and much less contempt where a sentence of imprisonment was, apparently, pre-determined as the appropriate remedy.”
The Court of Appeal concluded that the primary judge appeared to be unaware that breaches and contraventions of orders made in family law proceedings must be ordinarily dealt with under the Act as a “contravention of proceedings”. The Act makes clear that contempt involves proof of different matters to those of this case. The Court of Appeal stated that it would be difficult to think of circumstances where a failure to comply with orders for disclosure could warrant a party being dealt with for contempt.
In any event, the strict rules of procedural fairness reflected in the Rules of the Court apply to either sanction and were not applied by the Judge in this case.
On Appeal it was also noted that a Court should not sentence a person to imprisonment unless the Court is satisfied that, in all of the circumstances of the case, no other sanction of the wide range available would be appropriate.
The imprisonment of the husband in the current case was described as a “gross miscarriage of justice”.
The appeal by the husband was allowed and the husband was granted a costs certificate authorising a payment to the husband from the Attorney-General in respect of the costs incurred by him in relation to the Appeal.
We hope that the issue explored in our March 2019 Family Law Case Watch was of interest to you as it reveals a rare and profound denial of procedural fairness to a party rightfully reversed on Appeal. It also highlights the importance of financial disclosure in Family Law matters and the need to comply with the obligation to provide full and frank disclosure.
If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or firstname.lastname@example.org to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional family lawyers available to help you.
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.