July 24, 2023

Contempt: beyond reasonable doubt

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By Georgia Bishop, Lawyer

A Division 1 justice of the Federal Circuit and Family Court of Australia has provided a succinct reminder that when a contempt application is made orders are to be interpreted as they appear- that is, literally.

The background

The parties to a marriage of approximately 28 years separated on 20 June 2021.

On 14 October 2021, interim consent orders were made by the Court. At the time of the hearing both parties were in attendance and represented by Senior / Queen’s Counsel.

On 25 November, 2022, the wife filed an Amended Application – Contempt alleging three grounds of contempt, namely:

  1. In 2022, the husband caused a sum to be paid to his personal account in breach of Order 2.5 which provided the husband pay his income from the farming enterprise to the farm account.
  2. In 2022, the husband obtained a loan and provided a property, which the parties were restrained from encumbering pursuant to Order 3.1, as security for the loan.
  3. In 2022, husband traded-in the unencumbered vehicle registered to the partnership for a new financed vehicle in breach of Orders 1 and 2.3 which restrained him from causing any assets to be sold, disbursed, transferred, assigned, encumbered, alienated, leased, or disposed save in the ordinary course of business.

The law

The wife argued the husband had committed an act which “constitutes a contravention of an order under the Act and involves a flagrant challenge to the authority of the court” in accordance with s 112AP (1)(b) of the Family Law Act 1975 (Cth) (“the Act“).

There was no dispute that the interim consent orders were within the meaning ss 112AP(9) and 112AA of the Act.

The onus rested with the wife to prove the husband’s contempt was beyond reasonable doubt.In doing so, the Court referred to four elements which must be proven beyond reasonable doubt, being:

The respondent knew the terms of the orders.2

The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent.3

The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intent to do the act which is alleged to be the contempt.4

The act must involve a flagrant challenge to the authority of the court (which involves conduct of an exceptional, striking or repeated nature).

The decision

In relation to the first alleged ground of contempt, the Court found that the wife failed to establish an arguable case. Unlike contract law where performance is to occur within a reasonable time,the Court found contempt applications do not call for construction of the order but whether a party has complied with the orders “literally”. Whilst timeframe is relevant to the consideration of flagrancy, it does not solely satisfy an application for contempt.

Point two proceeded to further hearing as the evidence demonstrated that the husband had, on the fact of it, challenged the Court’s authority by his action of applying for a loan when an injunction existed.

Point three failed at the hearing due to a lack of evidence showing beyond reasonable doubt that such transaction was not in the ordinary course of business. The husband argued that farmer trading in an old vehicle for a new one was in the ordinary course of business.

Take away points
  • The standard of proof in contempt applications is beyond reasonable doubt and not on the balance of probabilities.
  • Orders should be drafted carefully and interpreted “literally”.
  • Applications and supporting Affidavits should be logically structured in a way that the evidence will establish that the non-compliance was intentional and a prima facie breach.

Mason & Mason [2023] FedCFamC1F 18

1Mason & Mason[2023] [19(c)] citing the Full Court in Zamir & Zamir [2022] FedCFamC1A 193. See also at [15] the case of Ganem & Ganem (No.2) [2013] FamCA 257 at [10] which was approved by Oakley & Millar [2019] FamCAFC12.

2Citing LGM and CAM (2006) FLC 93-267 at 80, 536. See also LGM and CAM (2006) FLC 93-267 and LGM v CAM (Contempt) (No 2) (2008) FLC 93-355.

3Citing In the Marriage of English (1986) FLC 91-729 at 75, 294.

4Citimg In the Marriage of English (1986) FLC 91-729 at 75, 294.

5See Donau v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185.