Johannes Schmidt

Barrister-at-Law & Accredited Mediator

Category: Uncategorized

Contempt

22 May 2024 /

Listen and subscribe: Apple Podcasts | Spotify | Amazon Music | Audible

In this episode, I discuss contempt in family law, including types of contempt, the relevant tests, and how contempt interacts with Division 13A contravention proceedings.

Power to Punish Contempts

Section 45(1) of the Federal Circuit and Family Court of Australia Act 2021 provides:

The Federal Circuit and Family Court of Australia (Division 1) has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. 

Section 142(1) provides the mirror provision for Division 2.

Section 112AP of the Family Law Act

Section 112AP of the Family Law Act 1975 makes up the entirety of Part XIIIB – Contempt of Court. 

Application of s 112AP

Section 112AP(1) sets out the required elements for a finding of contempt under the Act:

Subject to subsection (1A), this section applies to a contempt of a court that: 

(a)          does not constitute a contravention of an order under this Act; or 

(b)          constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

Contempt other than Contravention

Section 112AP(1)(a) needs little explanation.  It relates to conduct which falls within the ordinary meaning of the word “contempt”. 

Some neat examples of such conduct arose in Medapati & Revanka (No. 3), where the husband:

  • “told the Court many times during the hearing that the proceedings were ‘moot’ and that they did not matter to him”;
  • “sought to intimidate [the judge], seemingly believing … that he might be able to intimidate [the judge]into finding in his favour”; and
  • “insincerely said to [the judge] at one point ‘I forgive you for your ignorance’” and then “blatantly lied to the Court when he was asked to confirm that is what he said”.

Forrest J was “quite satisfied that the husband [had] contemptuous feelings towards” his Honour and the Court.

Beyond Reasonable Doubt

The Full Court in Tate held that an application that a person be dealt with for contempt is “properly characterised” as “a proceeding for an offence” and that,  

Accordingly, the proceedings are criminal proceedings as defined in the Evidence Act and thus the standard of proof to be applied is as set out in s 141(1) of that Act, namely proof beyond reasonable doubt.

Elements

Aldridge J in Ganem & Ganem (No. 2) summarised the elements of a contempt as follows:

  • The respondent knew the terms of the orders.
  • The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent.
  • 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 intended to do the act which is alleged to be the contempt. 
  • The act must involve a flagrant challenge to the authority of the court. …

What Constitutes a Flagrant Challenge to the Authority of the Court

The alleged contemnor must have known both the contents of the contravened order, and what the order meant.[3]

Johns J has put it as follows:

In order to establish a contempt, I need be satisfied that there has been a deliberate defiance of a court order, as distinct from a breach of a court order.

As the words “flagrant challenge” are not defined in the Act, the Court has adopted the dictionary definition: “glaring, notorious or scandalous”.

The Full Court in Kendling approved the following passage from English:

it must be established that the respondent knew of the undertaking or order and that his act or omission in breach of that order or undertaking was a wilful, that is, a deliberate act by him as distinct from accidental or inadvertent.  It is not necessary in addition to establish that the conduct was contumacious; that is, it is unnecessary to show that the act or omission was done with a deliberate intention to break or disregard the undertaking or order. 

The Full Court in Kendling held that a lack of adverse consequences to the other party to the proceeding does not absolve the contemnor.  The Court there said that there were at least two reasons:

the consequences of the most flagrant challenges to the authority of the Court could be avoided by the rectification of the breaches of the orders at any time prior to the imposition of sentence. There would be a clear incentive in those circumstances for parties to flagrantly challenge the authority of the Court in the hope that the other party would not incur the expense of bringing the application pursuant to s 112AP, safe in the knowledge that if and when that was successfully undertaken, remedying the breaches of the orders would obviate the imposition of sanctions pursuant to the section

where rectification of breaches of court orders can be achieved by financial transactions or payments, is that it has the potential to elevate the wealthy to a level of impunity not enjoyed by those less affluent.

Sentencing

Kent J, in Cluny & Skinner (No 2), conveniently summarised “general principles or guidelines” with respect to sanctions for contempt.  Essentially:

  • Section 112AP provides the code for dealing with sentencing.  State and federal sentencing laws have no application. 
  • The sentencing judge has a wide discretion, which is to be exercised transparently.
  • Review of punishments in other cases is of limited assistance, as each case turns on its own facts.
  • As the section provides no maximum term of imprisonment, the exercise of the discretion is particularly difficult.
  • Whilst the purpose of contempt proceedings is normally to coerce compliance with orders, another purpose may be punishment, for the purposes of individual and general deterrence, and for retribution.  Retribution may be called for because effective administration of justice requires demonstration that the court’s orders will be enforced.

Who can Apply?

Am application for a person to be dealt with for contempt may be made by:

  • a party to the proceeding, if the contempt is in connection with a proceeding;
  • the Marshal, or another officer, of the Court;
  • an officer or staff member of the Australian Federal Police; or
  • a member of a state or territory police force.

This is set out in r 11.71(3).

Rule 11.71 sets out the requirements and processes for contempt applications.  As a contempt proceeding is quasi-criminal, strict compliance with the Rules and legislation is required, so be sure to peruse r 11.71 before making an application.

Contempt vs Division 13A Contravention Proceedings

A party aggrieved by way of contravention of a parenting order may elect to seek that the offending party be dealt with for contempt (if the requisite flagrant challenge exists), in addition to, or rather than, seeking that the offending party be dealt with under Division 13A of Part VII.

In Wylie, Forrest J held (with my emphasis added):

Section 112AP(2) of the Act expressly empowers the Court to punish a person for contempt of the Court “[i]n spite of any other law”. I consider that provision confers power on the Court to hear and determine contempt proceedings against a party regardless of whether proceedings have or are being brought against the alleged contemnor pursuant to Division 13A of Part VII of the Act or a provision of any other State or Commonwealth legislation, such as the Queensland Criminal Code. As Coleman J went on to say in McClintock & Levier:

In my view it is not without significance that the legislation does not exclude from the operation of s 112AP breaches of parenting orders. Nor does Division 13A of the Act purport to exclude any breaches of parenting orders from the operation of s 112AP. That state of affairs cannot have eventuated through inadvertence. I thus perceive there to be two kinds of proceedings with respect to breaches of parenting orders.

Where the Contravention Constitutes a Crime

Where a person chooses to prosecute a contempt based on an alleged contravention of a parenting order, but without prosecuting a contravention under Division 13A, the obligation under s 70NDB to either adjourn or dismiss the contravention proceeding where the alleged contravener is subject of criminal proceedings arising out of the contravention is not mandated.

However, the Full Court in Sahari and Sahari (1976) FLC 90-086 said (my emphasis added):

Where the alleged facts constituting the contempt also constitute a crime the court has a careful and considered discretion to exercise. In some cases protection of the applicant will demand urgent action. In others the applicant’s protection can be left to the processes of the criminal law. Where only the affront to the court’s authority is involved and the same facts constitute a crime, the criminal processes should first be allowed to take their course. When they are concluded the court may then turn to the question whether the disobedience of its order merits further punishment in the public interest.

Conclusion

As you can see, an application for someone to be dealt with for contempt under the Family Law Act should not be made lightly.


Great care needs to be taken to comply strictly with the legislation and the Rules, and, of course, the standard of proof required is higher than what we are normally used to in family law, because it’s the criminal standard of proof beyond a reasonable doubt.

Family Law Amendment Bill 2023 – Initial Thoughts on proposed amendments to sections 60CC, 61DA and 65DAA

30 January 2023 /

The Federal Government has published an Exposure Draft of the Family Law Amendment Bill 2023 (“Bill”).  

If enacted, the Bill would, amongst other things, significantly amend section 60CC of the Family Law Act 1975 (“Act”) (which section sets out the factors which the Court is required to consider when determining the best interests of a child).

The Bill would also repeal s 61DA (the presumption that it is in a child’s best interests for both of their parents to have equal shared parental responsibility), and section 65DAA (the requirement to consider making an order for equal time or substantial and significant time when the Court makes an order for equal shared parental responsibility).

Whilst I have not had time to fully consider those aspects of the Bill, I have spent a bit of time reading them and comparing them to what they would amend.

I have not yet taken the time to read the other parts of the Bill.

Section 60CC Amendments

Section 60CC sets out the factors which a Court must consider when determining the best interests of a child.

What does it say now?

In its current form, section 60CC is unwieldy.  

It contains two “primary considerations” and 14 “additional considerations” (including a catch-all factor which allows the Court to take into consideration whatever it considers appropriate), many of which overlap, many of which are not applicable to many families, but all of which the Court must consider when determining what Orders are in a child’s best interests.

One of the factors applies only if the child is an Aboriginal or Torres Strait Islander child: the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, and the impact of any proposed parenting order on that right.   It is the 9th factor in the list of the 14 “additional considerations”.

Due to the overlap between many of them, I routinely group the section 60CC factors when making submissions in Court as follows:

  • the child’s relationships (4 overlapping factors);[1]
  • the risk of harm (3 overlapping factors);[2]
  • the child’s views;[3]
  • parental capacity, responsibility and involvement (4 overlapping factors);[4] and
  • orders least likely to lead to further proceedings.[5]

I note that the above list does not include the factor which applies only if the child is an Aboriginal or Torres Strait Islander child.  For whatever reasons, I have worked on very few matters where this factor was relevant, so it is not something I deal with routinely.

I have worked exclusively in family law for over 11 years (about half that time as a solicitor, and the other half as a barrister).  I find it better and easier to simplify the many factors into 5 essential categories (and, if I recall correctly, I lifted those categories from a judgment many years ago, so I am not the only one who does this).

I can only imagine how difficult it must be for self-represented litigants to understand, and engage with, s 60CC in its current form.

What would the Bill change?

The Bill would dramatically simplify s 60CC, with only 6 factors applying to all children.  

The existing factor which applies only if the child is an Aboriginal or Torres Strait Islander child remains in place, but is set out separately from the other factors, which will make it easier to find (and its existence more obvious) for cases where it’s relevant, and which will make it easier to skip where it doesn’t apply.

The generally applicable factors are:

  • what arrangements would best promote the safety of the child and each carer of the child;
  • the child’s views;
  • the developmental, psychological and emotional needs of the child;
  • the capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, with particular regard to the willingness of the carer to seek assistance and support in relation to those matters;
  • the benefit to the child of maintaining relationships with both parents, and other people significant to the child where it is safe to do so; and
  • a catch-all.

Almost all of the existing factors are essentially covered (with the notable exception of a requirement in the Bill to expressly consider making orders least likely to lead to further proceedings), but the proposed wording is far simpler and more accessible.

There appears to be an increased focus on safety, but, in my opinion, the change is marginal.  The existing section already requires the Court, when weighing the two “primary considerations”, to give greater weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with each parent.  Same concept, different language.

My gut reaction

In essence, the approach to determining best interests would remain much the same, but the section would become much easier and simpler to understand and apply.

Given the horrific rate of family violence in Australia, any increase in focus on the safety of children and the adults in their lives (however small it may be) can only be a good thing.

On balance, these amendments seem pretty good to me.

Section 61DA Repealed

The Bill would repeal s 61DA.

What is s 61DA?

Section 61DA provides that, when making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the parents of the child to have equal shared parental responsibility (“ESPR”).

The presumption does not apply when there are reasonable grounds to believe that a parent, or another person who lives with that parent, has committed child abuse or family violence.

The presumption can, in any case, be rebutted by evidence which satisfies the Court that it would not be in the child’s best interests for the parents to have ESPR.

Parental Responsibility and Confusion

We have a bit of jargon in Australian family law.  It seems to confuse a lot of people.  

The Act uses terms like “live with”, “spend time with” and “parental responsibility”.  In the general parlance, people in Australia are more likely, in my experience, to talk about “custody” and “access”, terms which are outmoded in Australian family law.

In my experience, with both clients and self-represented litigants, the meaning of parental responsibility is not immediately obvious to most non-lawyers.  Clients are often surprised to learn that parental responsibility relates to making decisions about children, but has nothing directly to do with where a child lives or with whom a child spends time (or when, or how often, or how long for).

However, a lot of lay-people seem to have heard or read about the presumption.  They may have googled family law, and read something about it in a Facebook group or forum, or perhaps even stumbled across s 61DA on AustLII and read it without context or an understanding of what the terms meant.

A great many people seem to be under the false impression that this presumption they’ve heard about means that, by default, the Court will order that a child will have equal time with each of their parents.

What’s the effect of repealing it?

To my mind, repealing s 61DA will have little effect on the majority of families.

The existence of the presumption means that there is a default position, and the evidentiary onus falls on the person who wants to deviate from the default.

The absence of the presumption just means that there is no default position.   It doesn’t mean that there is a different default position.  It doesn’t mean that, say, mothers will have sole parental responsibility by default.

It just means that the Court starts with a clean slate, assesses the evidence, and makes a finding as to what allocation of parental responsibility (whether between parents or other adults) is in the child’s best interests.

That is precisely what the Court does now anyway if there is anyone agitating to deviate from equal shared parental responsibility.

I expect that, in the vast majority of families going through separation, both parents will want ESPR, and the Court will continue to order it.

All that changes is that, when there is a dispute about allocation of parental responsibility, there isn’t a party (whether parent or otherwise) who bears a greater evidentiary onus than another party.

In other words, repealing s 61DA would just mean that, when there is a dispute about parental responsibility, each party will be required to adduce evidence in support of their position (which, in practice, happens in most cases already).

My gut reaction

This change will likely affect only a minority of cases before the Court.  In those cases, the outcome may be no different, as the presumption might be rebutted anyway.

The small shift in onus might just ever-so-slightly tip the scales of some power imbalances.  For example, a victim survivor of coercive control may have a slightly less difficult time in escaping further exercise of control by the other party by way of decision-making about a child.

The biggest benefit, to my mind, of repealing s 61DA would be an absence of a widely-held misconception that there is a presumption of equal time.

On balance, I think repealing s 61DA is not a bad idea.

Section 65DAA Repealed

The Bill would repeal s 65DAA.

What is s 65DAA?

Section 65DAA makes it mandatory for the Court to consider certain time arrangements for a child if the Court orders ESPR. 

In particular, where ESPR is ordered, the Court must consider whether an order for equal time is both in the child’s best interests and reasonably practicable.

If, after considering that option, the Court decides not to order equal time, it must then consider whether an order for the child to spend “substantial and significant time” with each parent is both in the child’s best interests and reasonably practicable.

It must consider those options even if no party to the proceeding seeks orders for equal time.

All of this is within the existing framework of the Court being required to make parenting Orders which are in the child’s best interests, and s 60CC setting out the factors to be taken into account in determining those best interests.

In other words, s 65DAA says to the Court something like “you must make Orders in the child’s best interests, and s 60CC tells you what to look at, but in exercising your discretion, you must at least think about these particular options, even if nobody is asking for them”.

My gut reaction

I’ve always found s 65DAA a bit weird.

If a party seeks an equal time arrangement, the Court will necessarily consider it.  If nobody seeks equal time, why should the Court spend time and resources considering such an arrangement?

The Court is required to make Orders in the child’s best interests.  

I’m pretty sure that if, after assessing evidence and hearing submissions about an equal-time arrangement, the Court finds that an equal time arrangement is in the child’s best interests, and that it is reasonably practicable, it will order it, whether or not some section of the Act specifically tells the Court to think about that option.

Conversely, if the Court finds that it’s not in the child’s best interests, or that it is not practicable, it won’t order it.  No amount of mandated consideration is going to change that.

The same goes for “substantial and significant time”.

I’m in favour of s 65DAA being repealed.

[1] s 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents.

s 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child).

s 60CC(3)(c): The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child.

s 60CC(3)(d): The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

[2] s 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

s 60CC(3)(j): Any family violence involving the child or a member of the child’s family.

s 60CC(3)(k):  If a family violence order applies, or has applied, to the child or a member of the child’s family-any relevant inferences that can be drawn from the order.

[3] s 60CC(3)(a): Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.

[4] s 60CC(3)(c): Extent to which each parent has taken, or failed to take, opportunities to participate in decision-making about, spend time with, and communicate with the child.

s 60CC(3)(f): The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.

s 60CC(3)(ca): The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

s 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

[5] s 60CC(3)(l).

© 2024 Johannes Schmidt

Theme by Anders Noren — Up ↑