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Stradford & Stradford [2019] FamCAFC 25 (15 February 2019)

Last Updated: 21 February 2019

FAMILY COURT OF AUSTRALIA



FAMILY LAW – APPEAL – CONTEMPT – Where the primary judge made a declaration that the husband was in “contempt” of orders made for the provision of full and frank disclosure – Where the primary judge ordered the husband to be sentenced to 12 months’ imprisonment – Where the husband appealed from the declaration and order and the wife supported the husband’s appeal – Where there was no factual foundation or requisite finding which justified any such declaration and order – Where the processes employed by the primary judge were so devoid of procedural fairness, and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the declaration and order for imprisonment to stand would be an affront to justice – Appeal allowed – Costs certificate issued to the husband.

APPELLANT: Mr Stradford

RESPONDENT: Ms Stradford

FILE NUMBER: BRC 3444

of 2017

APPEAL NUMBER: NOA 114

of 2018

DATE DELIVERED: 15 February 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Strickland, Murphy & Kent JJ

HEARING DATE: 15 February 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 6 December 2018

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Bunning

SOLICITOR FOR THE APPELLANT: Crowley Greenhalgh

THE RESPONDENT: In person (via telephone)

ORDERS

(1) The appellant be granted leave to amend his grounds of appeal as contained in the Notice of Appeal filed 11 December 2018 to include new Grounds 11 and 12.

(2) The appeal from the orders made by Judge Vasta on 6 December 2018 is allowed.

(3) The Declaration made on 6 December 2018 be set aside.

(4) Order 1 of the Orders made on 6 December 2018 be set aside.

(5) There be no order as to costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).

(6) The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.



IT IS NOTED that publication of this judgment by this Court under the pseudonym Stradford & Stradford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).



Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).



THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE





Appeal Number: NOA 114 of 2018

File Number: BRC 3444 of 2017



Mr Stradford

Appellant



And



Ms Stradford

Respondent





REASONS FOR JUDGMENT

Mr Stradford (“the husband”) and Ms Stradford (“the wife”) are engaged in property settlement proceedings[1] in the Federal Circuit Court of Australia. Within those proceedings, on 6 December 2018 Judge Vasta made the following declaration and order:

THE COURT DECLARES:

That [MR STRADFORD] is in contempt of Order 3(a), (h), (j), (k), (l), (m), (n) and (o) of Orders made by Judge Vasta on 10 August 2018 in that [MR STRADFORD] has failed to make full and frank financial disclosure.

THE COURT ORDERS:

That the Applicant [MR STRADFORD] be sentenced to a period of imprisonment in the [X Correctional Centre] for a period of twelve (12) months, to be served immediately with the Applicant to be released from prison on ... 2019, with the balance of the sentence to be suspended for a period of two (2) years from today’s date.

...

The husband appeals that order and declaration. By operation of Order 1 the husband was deprived of his liberty and was imprisoned for about a week. On the last day, he obtained a stay of that order pending the outcome of this appeal. During his imprisonment, the husband was housed in a maximum security facility and was classified as a risk to himself. The wife supports the husband’s appeal. Indeed, despite being involved in contested property proceedings with the husband, she asked his Honour on two occasions not to send the husband to gaol, her primary concern being the effect on the parties’ children aged nine and five. In circumstances where both parties seek that the declaration and order be set aside on appeal, it is necessary that appealable error be identified. Moreover an error or errors of law must be identified in order to grant the husband, as he seeks, a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to his costs of the appeal. The need for us to identify error is heightened by the feature that the subject sentence of imprisonment was obviously imposed by the primary judge as punishment of the husband for contravention of Court orders, as distinct from the application of some coercive sanction to advance the substantive proceedings. There are numerous grounds of appeal. In summary, it is contended that his Honour had no power to make the declaration and order that he did; that there was no factual foundation, much less any requisite finding which justified, or could have justified, any such declaration and order; and that the proceedings were beset with various specific breaches of the rules of natural justice. All of those contentions must be accepted. We are driven to conclude that the processes employed by the primary judge were so devoid of procedural fairness to the husband, and the reasons for judgment so lacking in engagement with the issues of fact and law to be applied, that to permit the declaration and order for imprisonment to stand would be an affront to justice. Our reasons for that conclusion follow. It is necessary to make some reference to the sequence of events given that, as will be discussed, it can be seen that the primary judge’s approach was flawed from the outset.

The orders of 10 August 2018

The property settlement proceedings were listed for trial before the primary judge on 10 August 2018. However, the trial did not proceed because, in summary, his Honour was apparently not satisfied with the state of preparation of the evidence. The primary judge made the following relevant orders with respect to the husband’s disclosure and the further progress of the matter:

...

That the Applicant make full and frank disclosure, including but not limited to:

a. [E Bank] account ...41 for the period 22 December 2014 to present;

b. [E Bank] account ...24 for the period 1 December 2014 to present;

c. [E Bank] account ...23 for the period 25 January 2017 to 8 February 2017 and from 4 May 2017 to present;

d. [E Bank] account ...23 for the period 16 December 2014 to present;

e. [F Bank] account ...66 from 4 April 2014 to present;

f. Commonwealth Bank account ...37 from opening to present;

g. Commonwealth Bank account ending ...57 from opening to present;

h. Bank statements for [Company A] from 12 April 2016 to present;

i. Bank statements for [Company B] ABN ... from 1 October 2016 to present;

j. Bank statements for [Company C] ... from 12 April 2016 to present;

k. Bank statements for any joint accounts with [Ms M];

l. Bank statements from 1 May 2016 to present for the account in the name of [Ms M] which received the transfers from the Applicant’s [F Bank] account number ...66;

m. Statements for the Applicant’s [G Group] account ending ...64, [H Group] account and any other gambling account, online or otherwise, for the period December 2014 to present;

n. Tax returns for the Applicant from 2014 to present; and

o. Company tax returns, financial statements and BAS statements for the financial years 2014/15, 2015/16 and 2016/17 for companies operated by the Applicant, including but not limited to:

i. [Company A];

ii. [Company D];

iii. [Company C]; and

iv. [Company B].

That by no later than 4.00pm 5 November 2018 the Applicant file and serve an affidavit setting out what disclosure has been provided to the Respondent. That by no later than 4.00pm 12 November 2018 the Respondent file and serve an affidavit addressing the disclosure provided by the Applicant and accounting for the distribution of the $149,763.42 proceeds of sale of the [Suburb Q] property. That by no later than 4.00pm 19 November 2018 the Applicant file and serve an affidavit in reply. That this matter be adjourned for mention at 9.30am on 26 November 2018 in the Federal Circuit Court of Australia at Brisbane.

...

(As per original)

Appearing on the orders made by the primary judge on 10 August 2018 are the following notations:

NOTATIONS:

If on the adjourned date the Court is of the opinion that the Applicant has not made full and frank disclosure in accordance with today's orders, he is to be dealt with for contempt of those orders. If a contempt hearing has to take place before Judge Vasta, it will be heard 10.00am 5 December 2018.

If the Court is satisfied that the [sic] has been full and frank disclosure by the Applicant husband, the matter be set down for a final hearing, allocating one (1) day

(Emphasis added)

The reference to “contempt” in these notations ought be considered and explained. Section 17 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCC Act”) confers on that Court the same power to punish contempts of its power and authority as possessed by the High Court of Australia. However, that is a power to punish contempts committed in the face or hearing of the Court. The Act makes a distinction between such contempts (Part XIIIB) and sanctions for failure to comply with orders (Part XIIIA). The contempt provisions address flagrant challenges to the authority of the Court and exempt specifically “a contempt of a court” that constitutes “a contravention of an order under this Act”. The latter expression is defined within Part XIIIA in ss 112AA and 112AB. The primary judge did not ever characterise the “contempt” he intended to refer to. However, it cannot sensibly be conceived that his Honour had in mind to treat the husband’s alleged breach or breaches of orders for disclosure made in financial proceedings as constituting contempt in the face of the Court within the meaning of s 17 of the FCC Act or Part XIIIB of the Act. Plainly, his Honour was dealing with an asserted contravention of orders for, in effect, discovery. It may immediately be observed about Notations A and B to the orders of 10 August 2018 that the primary judge apparently resolved, in advance of any breach by the husband of the orders that, irrespective of whether or not the wife made any application for alleged breach of the orders, the primary judge purported, of his own motion, to deal with any breach. Moreover, irrespective of the nature or extent of any such breach, his Honour had pre-determined that it was to be treated as “contempt”, as distinct from a failure to comply with orders. Section 112AP of the Act expressly provides that, for a “contempt” there must be a contempt that does not constitute the defined “contravention of an order under this Act” (s 112AP(1)(a)) or a contempt which “constitutes a flagrant challenge to the authority of the court” (s 112AP(1)(b)). Each element must be established on the criminal standard of proof beyond reasonable doubt.[2] It can thus be seen that the primary judge’s process failed from the outset on a number of levels. In advance of any breach of orders the primary judge predetermined that any such breach, of whatsoever nature, would constitute “contempt” within the meaning of the Act. Moreover, the primary judge cast himself as prosecutor in any future proceeding for the offence of contempt. Both of these conclusions were reached by the primary judge without particularising any charge; establishing that the charges as particularised were prima facie established; and affording the husband any opportunity to be heard. That the primary judge determined the matter would proceed as a “contempt” rather than a contravention can plainly be seen to be deliberate rather than a mistake. In the course of the hearing on 10 August 2018, and by reference to the orders for disclosure by the husband that his Honour made, the primary judge stated:[3]

HIS HONOUR: If this is what you want, I can adjourn it and make an order for full and frank disclosure on those matters, and if those matters are not given, then he must turn up here, show cause as to why he shouldn’t be treated – dealt with for contempt, and then I can deal with it. If I find that he’s in contempt of the orders, then I can do something about it....

...

HIS HONOUR: If it is that you want to pursue that, then the most I can do is offer an adjournment with an order for full disclosure with consequences. Okay. And, you know, believe me, if there isn’t the full disclosure there will be consequences, because that’s what I do. If people don’t comply with my orders there’s only place they go. Okay. And I don’t have any hesitation in jailing people for not complying with my orders. So there’s that option.

...

HIS HONOUR: I have told you, I will put you in jail in contempt of this court if you talk over the top of me. Do you understand? I am not happy at all with you, but I am happy for you to think about this, because your disclosure at this point has been absolutely abysmal. And if it is that I order this and you do not disclose your superannuation, your current bank accounts, all the accounts that you say have now been closed, and when they were closed and what the balance was when they were closed – all of those matters need to be given to [Ms Stradford] by a certain time, and I would think it would be within two months. And if that isn’t given to her – if it is that she comes here, and she complains that she has asked for things and you have not given them to her, bring your toothbrush. Okay. So you have a think about it.

(Emphasis added)

We do not consider that these quoted statements by the primary judge can be dismissed as merely an exercise in seeking compliance in terrorem or otherwise by a florid display of an asserted power. The statements clearly bespeak prejudgment; any breach of any order made by his Honour of whatever nature or extent was to be treated by him as “contempt”. That pre-judgment was made all the more egregious by reason of the judge pre-judging imprisonment as the punishment before knowing the particulars of the offence or any matters in mitigation. The only punishment option was to be a sentence of imprisonment. In this context it can be seen that the Federal Circuit Court Rules 2001 (Cth) make important and specific provisions in r 19.02 as to who may make an application to the Court for a person to be dealt with for contempt; the mandatory requirements of the application and of the affidavit to be filed in support. As will be further discussed, sub-paragraphs (6) to (8) of r 19.02 make important provisions about the procedure to be followed by the Court on the hearing and determination of an application for a person to be dealt with for contempt. All of those provisions can be seen to reflect basic principles of natural justice where liberty is potentially at stake. Given its importance to the present case we set out r 19.02 in full as follows: 19.02 Contempt other than in the face or hearing of Court

(1) If it is alleged that a person has committed a contempt of the Court (other than contempt in the face or hearing of the Court), an application may be made to the Court for the person to be dealt with for the contempt.

(2) An application must:

(a) be in accordance with the approved form; and

(b) state the contempt alleged; and

(c) be supported by an affidavit setting out the facts relied on.

(3) An application may be made:

(a) if the contempt is in connection with a proceeding, by a party in the proceeding; or

(b) by the Marshal of the Court; or

(c) by an officer or staff member of the Australian Federal Police; or

(d) by a member of the police force of a State or Territory.

(4) The Court may direct the Marshal to make an application.

(5) If the Court considers that the person is likely to leave the jurisdiction of the Court, the Court may issue a warrant for the arrest and detention of the person in custody until the person:

(a) attends before the Court to answer the charge; or

(b) gives security, as directed by the Court, for his or her attendance before the Court to answer the charge.

(6) When the person attends before the Court, the Court must:

(a) tell the person of the allegation; and

(b) ask the person to state whether he or she admits or denies the allegation; and

(c) hear any evidence in support of the allegation.

(7) After hearing evidence in support of the allegation, the Court may:

(a) if the Court decides there is no prima facie case, dismiss the application; or

(b) if the Court decides there is a prima facie case:

(i) invite the person to state his or her defence to the allegation; and

(ii) after hearing any defence, determine the charge.

(8) If the Court finds the charge proved, the Court may make an order for the punishment of the person.

We will later refer to the stark contrast between the procedure required to be followed by the rule on the hearing of an application for contempt and the process employed by the primary judge. However, relevant to the primary judge having himself assumed the role of prosecutor of any application for contempt, are the observations of Black CJ (with whom Finkelstein and Greenwood JJ agreed) in Clampett v Attorney-General (Cth).[4] In the analogous context of a summary hearing of contempt in the face of the Court, Black CJ observed that it is well recognised that there exists a conflict with fundamental principles of justice “when, in effect, the roles of prosecutor, witness and judge are performed by one and same person: see Keeley [[1979] 143 CLR 162 at 173] per Stephen J” (Clampett at [37]). Black CJ further observed at [38] and [39] as follows:

[38] There is yet a further problem. Contempt in the face of the court is a criminal offence yet when a person is charged with such an offence in circumstances such as those in this case, the onus of proof is in effect reversed. Instead of a case for the prosecution being presented by a prosecutor and tested by or on behalf of the person accused in proceedings presided over by an independent judge or magistrate, in a case such as the present the accused stands charged and is required to justify or otherwise defend his or her conduct.

[39] Whilst these considerations do not preclude a summary hearing by the judge or magistrate before whom a contempt is said to have occurred, they are at the heart of the concerns expressed about such a procedure in the cases and in academic writings, and they underscore the need for caution. They also point to the matters that must be considered and given appropriate weight in the exercise of the discretion conferred by provisions such as s 17(3) of the Act. If fundamental principles of justice are to be departed from it must surely be for the reason that, quite exceptionally, the broader interests of justice so require. Indeed, this consideration is so strong that if the same person were to act as prosecutor, witness and judge when the broader interests of justice did not manifestly so require, proceedings intended to uphold the authority of the court would be seen to diminish that authority so that the process would, at best, be

self-defeating.

There is no feature of this case which warranted, in the broader interests of justice, any departure from the fundamental principles of justice reflected in r 19.02. It is well settled that procedural rules of this type in the context of contravention or contempt applications operate for the benefit of the respondent to the application. Thus they may be waived by the respondent, or may be departed from, only if there is no injustice or prejudice occasioned to the respondent.[5] At no point did the husband waive the benefit of the protections which operation of that rule of procedure provided.

The mention before Judge Turner on 26 November 2018

Order 7 of the orders made by the primary judge on 10 August 2018 adjourned the proceedings for a mention on 26 November 2018. The proceedings came before Judge Turner on that date. In advance of that mention both parties had, in compliance with Orders 4 to 6 inclusive of the orders made on 10 August 2018, filed affidavits dealing with disclosure. The husband in fact filed affidavits on 2, 19 and 24 November 2018 respectively detailing by reference to the order for disclosure the items he had disclosed. He otherwise deposed, in effect, that other documents were not in his possession, power or control (albeit not in those terms). For her part, the wife filed affidavits on 12, 13, 20 and 23 November 2018 respectively which, in summary, acknowledged in some respects the receipt of disclosed documents but in other respects took issue with the husband’s disclosure. The mention before Judge Turner is aptly described as a mention given that the transcript reflects that the duration of the hearing before her Honour was about six minutes. That transcript also reflects that as between the husband and the wife there was a disputed issue of fact as to whether the husband had, as he contended, provided all documents he was able to provide or whether, as the wife contended, there were omissions. It is plain from the transcript of that brief hearing that Judge Turner did not purport to adjudicate upon that dispute. Nor, in reality, could she. It is equally plain from the terms of the order Judge Turner made on that day, that her Honour did not resolve any question as to whether or not the husband had failed to comply in any respect with the 10 August 2018 orders. The order made by Judge Turner was in the following terms:

THE COURT ORDERS:

That this matter be adjourned for hearing of the contempt application at 10:00am on 6 December 2018 in the Federal Circuit Court of Australia at Brisbane. As will be discussed, the primary judge purported in later reasons to treat the proceedings before Judge Turner as if her Honour had adjudicated upon the issues and made a finding as to “contempt”. This is plainly not so. Reference to the transcript, and the order itself, dispels any notion to that effect.

The hearing before Judge Vasta on 6 December 2018

With respect to this hearing we propose to take the somewhat unusual course of setting out the full transcript, albeit interspersed with our observations and conclusions where relevant. We do so for a number of reasons. First, the full transcript occupies less than 11 pages in total. Second, we wish to avoid any perception, or assertion, that we have “cherry-picked” from the record, particularly given that the wife supports the appeal and there is thus no contradictor. Third, we consider that only the complete transcript can underscore adequately the deficiencies and errors evident in the process which saw the husband imprisoned. As will be readily apparent, the primary judge did not employ, by way of procedure, anything remotely resembling the procedures specified in r 19.02 for the purpose of the hearing. Neither party was called upon to read the affidavit evidence either sought to rely upon. The primary judge did not otherwise identify the evidence which was taken into account by him. What can be seen to have occurred is each party making a submission (or, perhaps more accurately, assertion or counter-assertion) about what had, or had not, been disclosed with the primary judge undertaking a form of interrogation along the way. All of this occurred in the context that each of the husband and the wife, neither with any relevant legal training or experience, was selfrepresented:[6]

HIS HONOUR: All right. You’re [Mr Stradford] and you’re [Ms Stradford]. All right. Okay. So when we were last together on 10 August, we had quite a talk about what the assets were that the two of you had. And I made a number of orders that needed to occur. And that has gone back into what Judge Turner has. But with regard to the matter that went back before her on 26 November, I noted that if on the adjourned date the court, that is Judge Turner, was of the opinion that you, [Mr Stradford], had not made full and frank disclosure in accordance with the others, that you were to be dealt with for contempt of those orders, and that that would take place before me. So that’s that. So the matter can’t go anywhere at this point in time, because Judge Turner has determined that you are in contempt of the orders that I made on 10 August. So that’s where we are, it seems. So what do you want to say about that?

[MR STRADFORD]: I have tried to provide the full and frank disclosure. The items that I cannot provide are only tax and GSTs and things that are not in existence yet. I have in good faith tried to provide every aspect of my financial life and my partner’s. And, you know - - -

HIS HONOUR: Yes. I don’t accept that, because where are your statements for your [G Group] accounts? Where are any of the gambling matters? You haven’t given those, have you?

[MR STRADFORD]: I’ve provided to [Ms Stradford] exactly what was provided to me from both [G Group] and [H Group], including the attached statements. May I provide them to you, sir?

HIS HONOUR: Well, I will have a look at them. But, you know, the thing is that this is what Judge Turner has said, that you didn’t do that.

[MR STRADFORD]: [Ms Stradford] said I had failed to provide those.

HIS HONOUR: Yes. And Judge Turner has sent it to me, because Judge Turner wouldn’t have sent it to me without making a determination that you had actually failed to do that. They really aren’t – they aren’t very particular at all, these matters. But what it shows is that there has been 234,124 deposited into a [H Group] account and 145,275 into the [G Group] account, so that that – what’s that, that ends up being something close to $400,000 in gambling accounts. All right. You’ve been given those, [Ms Stradford]?

[MS STRADFORD]: Yes.

HIS HONOUR: So there’s $400,000 that has gone there. What has happened – why are there no bank statements for [Company A] from 12 April 2016 to the present?

[MR STRADFORD]: [Company A] is a domain name for the website [Company B Pty Ltd]. It’s not a company that I own or operate or anything of that nature. It is [Company B], which is the bank statement that I have provided to [Ms Stradford].

HIS HONOUR: What about the - - -

[MR STRADFORD]: It is not a separate company that I operate or anything of that nature.

(As per original)

Contrary to the primary judge’s observation, virtually at the outset, that “Judge Turner has determined that you are in contempt of the orders that I made on 10 August” there was, as we have earlier pointed out, no such determination by Judge Turner, nor could it possibly be inferred that this had occurred. As we have sought to emphasise, the order made by Judge Turner on 26 November 2018 makes that patently obvious. Further, if as is asserted, the primary judge was of the view that Judge Turner had already made a determination as to contempt, it is impossible to reconcile what follows in the transcript. There the primary judge can be seen questioning the husband as to his disclosure. Quite why that would be necessary if a determination of contempt had already been made is not at all apparent. It is also difficult to understand why, if the primary judge was of the view that Judge Turner had made the relevant determination as to contempt, it would be that the primary judge would himself ultimately make the relevant declaration or, indeed, to have heard the proceedings at all. Further, if Judge Turner had determined there was a contempt, it should be expected that, having followed the appropriate process, her Honour would move to sentence. Apart from erroneously stating that Judge Turner had made the determination, it is notable that the primary judge did not inform the husband of the particulars of the contempt if it can be construed that what the primary judge had purported to do was to receive submissions as to penalty. The transcript continues:[7]

HIS HONOUR: All right. What about the [E Bank] account ...41?

[MR STRADFORD]: So I have stated to [Ms Stradford] since the start of disclosure that that account is unknown to me. During the Administrative Appeals Tribunal hearing around two and a half weeks ago with [Ms Stradford], she expressed to me that it was for an account called [Partnership Y], which was a partnership that I was in in the early – from 2010 to 2014. I went to the bank – because I wasn’t a signatory during the dates that [Ms Stradford] requested, which is from December 2014 to 2015, they could not provide it to me. However, what I have subsequently done is contacted my old business associate, who has been able to provide that statement. But I only received that on Monday of this week. It may be too little too late, Judge, but I have provided it to [Ms Stradford].

HIS HONOUR: No. That’s all right. You’ve given it?

[MR STRADFORD]: Yes.

HIS HONOUR: Bank statements for [Company C], ABN...?

[MR STRADFORD]: So [Company C], I am not a director of that company. I have not traded that company. And the gentleman that is actually the director of that company is pursuing me, because I owe him money. That’s where – so I’m not in a position to provide accounts for a business that I’m not a director of. I don’t have any relationship with the gentleman, to be able to ask him for his accounts, because he’s pursuing me on other matters.

HIS HONOUR: All right. Bank statements for any joint accounts with [Ms M]?

[MR STRADFORD]: Yes. There are no joint accounts in existence for [Ms M].

HIS HONOUR: All right. Any bank statements that show any transfers from your account to [Ms M’s] account?

[MR STRADFORD]: I provided [Ms M’s] account from 12 months before we even met each other to [Ms Stradford].

HIS HONOUR: Okay. You’ve done that now, you say.

[MR STRADFORD]: Yes.

HIS HONOUR: All right. Well, we’ve got the [G Group] and the [H Group]. And tax returns?

[MR STRADFORD]: Yes. So I’ve provided 2014, ’15 and ’16 to [Ms Stradford]. I have not completed 2017 or 2018, though.

HIS HONOUR: All right. All right. And that’s all since - - -

[MR STRADFORD]: There was also, Judge, a matter that you ordered me to transfer the [motor vehicle] into my name.

HIS HONOUR: Yes. But that – yes, that’s something that Judge Turner had to really look at. But has that been done? The caveat has been removed, the transfer of the [motor vehicle] has been done and the lease arrangement. But that’s not what I’m to do with that.

[MR STRADFORD]: Okay.

HIS HONOUR: I was here on that day to look at the matter and – but it has to go back for another judge to, as it were, supervise or triage. I am really only here today to look at whether you are in contempt of my orders. All right.

(As per original) (Emphasis added)

Contrary to his initial observation that Judge Turner had already determined the husband to be in contempt of the orders, the primary judge here acknowledges that not to be so. Continuing then:[8]

[MR STRADFORD]: Okay.

HIS HONOUR: So that’s your explanation. All right. [Ms Stradford], what do you want to say to me?

[MS STRADFORD]: Just with [Company C], he was the director, so I’m not sure if that has been changed.

HIS HONOUR: Yes. But the thing is if you’re not the director any more then you don’t have - - -

[MS STRADFORD]: I haven’t been provided evidence that he isn’t the director, that’s all. He was the director, as far as I’m aware.

HIS HONOUR: Yes. All right.

[MS STRADFORD]: Tax returns, all he provided was notice of assessments. There’s no actual individual tax returns in detail or company tax returns. It was just a - - -

HIS HONOUR: Well, that’s what a tax return is. It is a tax return. It’s not a notice of assessment. That’s something different.

[MS STRADFORD]: All he has provided is the notice of assessment.

HIS HONOUR: Okay. All right.

[MS STRADFORD]: Not the actual – and not the company as well.

HIS HONOUR: Yes. All right. And, well, you’ve got this stuff from [G Group] and so on, so you know that there’s – you know where $400,000 has gone. All right. What about any of these others that we’re talking about?

[MS STRADFORD]: That’s – he’s - - -

HIS HONOUR: So what is it that you still want, is really what I’m asking you for, because this is the point, is you need to be able to get ready to go to trial. And you’re the one who said, “Well, I just don’t know enough.” As I said to you, “Well, you just don’t know enough now.” Sure, I might be able to get $400,000 and add that into the pool as an addback, and I might be able to make some sort of orders, but, you know, realistically you’re probably not going to be seeing that money. That will always just be a debt that you are owed.

[MS STRADFORD]: Pay for.

HIS HONOUR: Okay.

[MS STRADFORD]: Sorry.

HIS HONOUR: What else is it that you want?

[MS STRADFORD]: Yes. I guess, like, if – I don’t know if I’m allowed to say this. Like, obviously all I want in all of this is just to get to a property settlement. We’ve got kids together. I don’t want him to have to then go and be – sort of, go into contempt, when we have kids together that I have to think about as well, that this affects the kids of the rest of their lives. All I want is to be able to have everything on the table, him actually show that he has had a lot of income that we can now see, and be able to get to a property settlement. That’s all I’ve ever wanted. And there’s still a couple of things missing. Obviously the gambling accounts for me is a big issue. There’s no statements. Like, that doesn’t even say an account name, so - - -

HIS HONOUR: No. I understand what you’re saying.

(As per original)

It can be seen that the wife was seeking to emphasise the effect upon the parties’ children of contempt proceedings against the husband, a theme which she further emphasised later, as will shortly be seen. The transcript proceeds:[9]

[MS STRADFORD]: It has got closer. We’ve got closer.

HIS HONOUR: But we’re not fully there yet. And that’s one of the things. What I want with regard to disclosure is this – and let’s get down to basics – in the end the point is that the two of you have to have a property adjustment between the two of you that is just and equitable in all the circumstances, to ensure that the court can be sure that there has been justice and equity provided. The court can only go on what material is before it. When a party has not given proper disclosure, then it makes it very difficult to be able to understand what is just and equitable. Now, the court can still go ahead – as I said last time, you didn’t have really any prospect, there would be a negative pool. If I add back the 400,000 straightaway, you’re into a positive pool, as it is. And I can certainly make orders, you know, or a trial judge can certainly make orders by adding back that amount of money into the pool.

And, you know, and we can make certain other orders which make it a little bit – in a far better position to give you some sort of proper property adjustment than we were in August of this year. The point, I suppose, from my view, is that this trial probably – you know, well, it doesn’t really sit with me any more. It sits still with Judge Turner. The point is that having made the orders, Judge Turner has found that [Mr Stradford] is in contempt of those orders. But the person who – of course, the court is affected by that, but your attitude as to what you want to happen with regard to the contempt application is really the big thing. Okay. So, you know, I’ve certainly got an idea – I don’t – despite everything that [Mr Stradford] has said, I don’t believe that he has complied fully with my orders.

(As per original)

Having initially asserted that Judge Turner had made a concluded determination that the husband was in contempt of the orders, followed by the reference we have made to his Honour observing that the focus of his Honour’s own inquiry at the hearing was “to look at whether you are in contempt of my orders”, the primary judge returns here to the erroneous conclusion that Judge Turner had found the husband to be in contempt of those orders. In the next part of the transcript it can be seen that the primary judge was holding out, primarily to the husband, the prospect of an amicable settlement of the property proceedings as a means by which he might avoid sanction for “contempt”. Quite how it could be thought proper or appropriate behaviour for a judge to tell (self-represented) parties, in effect, “settle outside the courtroom now or one of you will go to gaol” entirely eludes us. The transcript continues:[10]

[MS STRADFORD]: Correct.

HIS HONOUR: And I’m prepared to deal with him for contempt. But, you know, I can see that that’s not what you particularly want. You want an amicable settlement, because you’ve got children.

[MS STRADFORD]: We’ve got children.

HIS HONOUR: And you don’t want him to be going to jail unnecessarily, because that’s exactly where he is going to be going.

[MS STRADFORD]: I know.

HIS HONOUR: You do realise that. You will be serving 12 months in jail. So I’m happy to do that. I can deal with that contempt today. And I’ve told you what will happen. Or, if you want, I can in effect give you an adjournment until the new year. If you come back with consent orders as to a proper property adjustment, even if he doesn’t have the actual money to make good on that adjustment, given that $400,000 is going to have to come into the pool, if you can sort that out so that it is amicable, I’m happy to give you that time to do that, so that you don’t feel as though in any way you have, you know, contributed to this. But this is not your doing. This is all on [Mr Stradford].

And I’m the one who sends him into jail, not you. You understand that. I don’t want you to have that guilt or to feel that you have to explain to your children that, “Because I pursued this, you know, dad has had to go to jail.” Okay. I don’t want for you to think that way. But I’m prepared to, you know, adjourn this over to January and for you to be able to come to me with a proper settlement. If you can’t, the matter will go back into the list for Judge Turner to allocate a trial date just on the material that we have. But that trial date will await [Mr Stradford’s] release from prison, because that’s what will happen in January.

[MS STRADFORD]: And that is my concern, is that I’m financially struggling and I’ve still got the cars, I’ve still got this as well.

HIS HONOUR: I understand that. But I don’t - - -

[MS STRADFORD]: Yes. Yes, of course.

HIS HONOUR: On what I’m seeing, on what I’ve got at the moment, I’m not seeing a very good outcome for you, because even if I order that you be paid, you know, $300,000 out of that pool, $100,000, you’re not going to see that.

[MS STRADFORD]: Yes.

HIS HONOUR: And, you know, nothing is going to happen and he will be in jail and you will have a piece of paper that says, “Yes, we’ve got the settlement”, but, you know, it really isn’t going to do anyone any good. So I’m going to adjourn just for five minutes and then I will let you talk to [Mr Stradford]. And it will be only for five minutes. Then you can come back and you can tell me what you want to do. If it is that there’s not going to be a resolution, I’m going to proceed with the contempt hearing. It’s as simple as that. Okay. Thank you. Okay. All right.

[MS STRADFORD]: Thank you, your Honour.

(As per original)

It can be seen that without providing any particulars whatsoever as to the alleged contempt, the husband has purportedly been found guilty. The husband has had no opportunity whatsoever to be heard about that. Indeed, he could not be because he did not know what charge he was facing. Neither, thereafter, was the husband afforded the opportunity to be heard about any sanction. The primary judge announced to the husband that he will be “serving 12 months in jail” if, as the primary judge postulates, his Honour deals with “contempt today”. 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 transcript continues:[11]

HIS HONOUR: All right. So what have you come up with?

[MS STRADFORD]: I obviously don’t want him to go to jail when we’ve got kids to think about, but I - - -

HIS HONOUR: Yes. Okay.

[MS STRADFORD]: But in terms of property settlement, I still – you know, there’s – as you can see, there’s hundreds of thousands there that I presume I’m entitled to, so - - -

HIS HONOUR: Well, you are, because they would be added back into the pool, because they have been frivolously frittered away.

[MS STRADFORD]: Yes. Correct. And - - -

HIS HONOUR: And the principles of property adjustment show that if there has been an irresponsible dissipation of marital assets, that they get added back into the pool. That’s the principle.

[MS STRADFORD]: Yes. And that’s all I wanted, was to get what was fair. And it seems once - - -

HIS HONOUR: Well, what is just and equitable is what you’re entitled to.

[MS STRADFORD]: Correct.

HIS HONOUR: And it is not just and equitable that a party is allowed to use what is marital assets on gambling. So that’s that. But that’s not what I’m - - -

[MS STRADFORD]: Here for.

HIS HONOUR: That’s not what I’m looking at.

[MS STRADFORD]: Yes.

HIS HONOUR: I’m looking at the fact that I made orders on 10 August 2018 and those orders have not been complied with.

[MS STRADFORD]: I know.

(As per original)

It can be seen that despite issue being joined by the husband to the effect that he had not failed to comply with the subject orders, the primary judge concluded:

I’m looking at the fact that I made orders on 10 August 2018 and those orders have not been complied with.

No evidentiary foundation is given for that conclusion. No determination of contested evidence had been made. The assertion that, somehow, Judge Turner provided such a basis is wrong both in fact and in law. As but one example of the lack of evidentiary foundation, the husband provided sworn evidence in his affidavit that the E Bank account referred to in Order 3(a) of the orders of 10 August 2018 was not, and had never been, a bank account belonging to the husband. Yet, despite the wife not offering any proof that this was ever an account belonging to the husband or otherwise disputing his assertion, the primary judge treated the husband as being in contempt of that particular order and did so without any reference at all to the evidence, much less to any finding about that evidence. The husband was entitled to have the primary judge not only consider but reconcile his sworn affidavit evidence as evidence material to any such conclusion. Again, this constitutes a profound denial of procedural fairness to the husband. Returning to the transcript:[12]

HIS HONOUR: So that’s that. So, okay, well, it just means that we will have to go ahead with the contempt hearing. I’ve got something on at 11, so I will come back at quarter at 12. Okay. And we will sort this out. All right. So I hope you brought your toothbrush, [Mr Stradford].

(Emphasis added)

It is unclear to us what purpose the primary judge saw was being served in the pejorative statement he made to which we have given emphasis. It is, however, another example of pre-judgment. As will next be seen, the wife was cut short by his Honour when she attempted to make further submissions about the husband not being sentenced to imprisonment. The transcript continues:[13]

[MS STRADFORD]: Sorry. No.

HIS HONOUR: What’s - - -

[MS STRADFORD]: Sorry. I said I don’t want him to go to - - -

HIS HONOUR: I don’t care.

[MS STRADFORD]: Okay.

HIS HONOUR: This is - - -

[MS STRADFORD]: It’s your decision.

HIS HONOUR: This is my order.

[MS STRADFORD]: Okay.

HIS HONOUR: Not your order. You can’t come to a conclusion, so therefore it means that this is still on foot. If this matter is still on foot, he is in contempt. The only way he gets out of contempt is if this matter is not on foot any more. You said that it cannot be settled, that he will not give you what you think is just and equitable. Therefore, it’s still on foot. Therefore, he is in contempt. Therefore, I am going to deal with him for contempt. Okay. I’ve made that very, very clear. It’s not your decision; it’s my decision. You’re not the one that’s sending him to jail; I am. These are court orders and court orders need to be obeyed. Otherwise, what’s the use of making the court orders. I made it very clear in August 2018 exactly what would happen if there was no compliance with these orders. Now, it’s not your fault. You’re not the one who’s sentencing him to jail; I am. But he won’t settle justly and equitably with you, the matter is on foot. You understand it. This is not anyone’s fault but your own. Quarter to 12.

...

HIS HONOUR: All right. Okay. Now, [Mr Stradford], as I said to you at the beginning, Judge Turner found that you have been in contempt of the orders that I made on 10 August 2018. What is it that you want to say?

[MR STRADFORD]: I’ve tried to provide - - -

HIS HONOUR: You can take a seat, [Ms Stradford].

[MR STRADFORD]: - - - whatever disclosure was asked of me within my means to do so and - - -

HIS HONOUR: You understand that’s just rubbish. You understand what [Ms Stradford] has wanted from day 1. And that is to be able to see what money has come into your possession and what money has left your possession, because that way then she could come to this court and say, “I want a just and equitable financial adjustment and this is the basis upon which I want it.” You have done everything you can to obfuscate that. It is very easy for you to know what money you have got and where it has gone. And you have done absolutely nothing to assist the process and the orderly running of this court. Don’t tell me that you’ve tried. That is just not what has happened.

You know that you could show this. You know that you could tell her exactly how much money has gone and where it has gone and what accounts have been done. You know exactly what money has gone into your gambling accounts and you just don’t want to tell her, because you don’t want to know the truth, because you don’t want her to be getting a fair, a just and equitable adjustment. That’s as plain as the nose on your face. So now tell me what is it that you say that I should do with you, having had Judge Turner find that you are in contempt of my orders.

[MR STRADFORD]: I’m not in a position to know that, Judge.

HIS HONOUR: You were warned by me in August 2018 that this was very serious. You’ve just thumbed your nose at it. All right.

[MS STRADFORD]: Judge Vasta, can I just say a couple of things, please?

HIS HONOUR: Well, I’m going to let you, but you’re not – this now doesn’t concern you. It’s over, as far as you’re concerned. You don’t play a part in this. But if you want to say something, in terms of mitigation, I will listen.

[MS STRADFORD]: In regards to my affidavit, I just – I’ve now had some legal advice and I’ve got a couple of things I want to mention. I would request that the accounts are frozen on decision of this. I did send you an affidavit of evidence of forgery from [Mr Stradford] from the AAT, so I just do ask that the accounts are frozen, as I can’t trust now where [Mr Stradford] is going to put his money. The other thing is I have been out there and tried to make an offer with [Mr Stradford] just then. I offered him 100,000 – for him to pay 100,000 and take the car. I’m still in possession of his car. So I just wanted to bring up those two things, that I have tried to make property settlement. [Mr Stradford] believes he doesn’t owe me anything further. And I do request the accounts are stolen.

HIS HONOUR: Yes. Yes. All right.

[MS STRADFORD]: Thank you. That’s all.

HIS HONOUR: Thank you. All right. Okay. Is there anything more you want to say, having heard what [Ms Stradford] has had to say, really, which is therefore in terms of mitigation in relation to what you’ve said, [Mr Stradford]?

[MR STRADFORD]: No. [Ms Stradford] has asked if I could pay her out a sum of money, which I’m unable to do so. Of course I would have liked to have come to any arrangement that avoids this.

HIS HONOUR: Well, you could have easily by actually doing what I ordered you to do. And don’t tell me “I tried”. Rubbish. I mean, that – you know, this is the only thing that you have from the [G Group] and from [the H Group]. My goodness gracious me. I didn’t come down in the last shower. I know exactly how you get those accounts. You haven’t tried. You haven’t done anything of the sort. Yes. You would have done anything you could have to avoid it. And that’s the strange thing, is you really don’t think that the court ever will jail you for contempt. You’re about to find that lesson is going to be a very hard one for you to learn. All right. If there’s nothing more then I will proceed. All right.

JUDGMENT DELIVERED

HIS HONOUR: I will sign the warrant that will commit [Mr Stradford] to prison and the QPS officers will arrive soon to take him to prison. In the meantime, security, you will have to escort [Mr Stradford] to the cell downstairs to await the officers to come and take him to prison. All right. Thank you. We will adjourn.

(As per original)

We consider the balance of the transcript just quoted speaks for itself in terms of the primary judge’s denial to the husband of proper process; natural justice and procedural fairness. We hasten to point out, as will be evident from the transcript, that at no point did the husband speak or behave in a disrespectful manner. Indeed, the transcript reveals the opposite – something that might be thought to be to his credit given the circumstances.

The primary judge’s reasons for judgment

At [13] and [14] of the reasons for judgment delivered extemporaneously, the primary judge records: The matter went before Her Honour Judge Turner on 26 November 2018. Her Honour ordered that the matter be adjourned for hearing of a contempt application. What Her Honour found was that there had been compliance with order 3(b), (c), (d), (e), (f), (g) and (i) of my order, but there had not been compliance with orders (a), (h), (j), (k), (l), (m), (n) and (o) of my orders. For that reason, Her Honour found that the Applicant husband was in contempt of my orders and sent it to me to deal with as I had foreshadowed in my orders. Obviously the primary judge there erroneously records that Judge Turner had determined that the husband was in “contempt”. Moreover, given that Judge Turner delivered no reasons for judgment for the orders her Honour made (and none were necessary given their nature), the reference by the primary judge in [13] to specific sub-paragraphs of the order is initially somewhat mysterious. That mystery is solved by reference to the subsequent reasons delivered by the primary judge on 12 December 2018 in granting a stay of the order for the husband’s imprisonment. At [3] of those stay reasons the primary judge refers to some “markings” from Judge Turner, presumably upon a copy of the subject orders, which the primary judge erroneously interpreted to be findings of Judge Turner on particular breaches. Indeed at [6] and [10] of the stay reasons the primary judge acknowledges his error in this respect and at [12] correctly observes that this Court would have no hesitation in allowing this appeal by reason of the primary judge’s error. No reference was made by his Honour to any other errors.

Conclusions

What appears to us to be readily apparent from the record as a whole, including the reasons for judgment delivered on 6 December 2018 and the subsequent stay reasons delivered on 12 December 2018, is that the primary judge may not be aware that breaches or contraventions of orders made in financial proceedings under the Act must be made liable to sanction under Part XIIIA of the Act if they meet the definition of “contravention of proceedings under the Act”. Section 112AP(1)(a) makes that clear. “Contempt” involves proof of different matters. Again, s 112AP makes that clear. It is difficult to envisage a case where failure to comply with orders for disclosure could be said to involve a flagrant challenge to the authority of the Court or where an established failure to fully disclose could be other than a contravention covered by Part XIIIA of the Act and not Part XIIIB. In any event, whether in proceedings for a sanction under Part XIIIA, or for contempt under Part XIIIB of the Act, strict rules of procedural fairness reflected in Rules of Court apply to the hearing and determination of such applications and the procedures to be followed. A moment’s reflection, following a reading of Part XIIIA and Part XIIIB respectively of the Act, highlights the obvious legislative intent that breaches or contraventions of orders largely fall to be dealt with under Part XIIIA. It can be seen within the provisions of Part XIIIA that there are a range of sanctions that need to be considered where a contravention of an order is established. Crucially, s 112AE(2) which provides that a Court shall not sentence a person to imprisonment unless the Court is satisfied that, in all of the circumstances of the case, it would not be appropriate for the Court to deal with the contravention pursuant to any of the other available sanctions. Notably those sanctions include one of the orders in accordance with s 112AG providing for additional sentencing alternatives. In contrast, “contempt” properly so defined falls to be dealt with under Part XIIIB. As we have already pointed out, a contravention of an order must also involve a flagrant challenge to the authority of the Court to be capable of constituting contempt within the meaning of Part XIIIB. As we have also sought to emphasise, outside of a contempt in the face of the Court, mechanisms exist and ought be followed, as a matter of fundamental justice, for the Court or judge not to assume the role of both prosecutor in what are acknowledged to be criminal proceedings in nature, as well as being the judge of those proceedings. Every aspect of contempt must be proven on the criminal standard. In the Federal Circuit Court of Australia the requirements of r 19.02 must be met. Departure from that stipulated process risks such departure constituting a fundamental denial of procedural fairness, as has occurred in this case. Finally, as the authorities emphasise, coercive compliance with orders has priority over punishment and thus imprisonment – even for proven contempt, is a sanction of last resort.[14] The wife did not oppose the husband’s appeal and indeed joined in seeking the subject declaration and order for the husband’s imprisonment to be set aside. We are comfortably satisfied, for the reasons given, that what occurred here in the making of the declaration and order for the husband’s imprisonment constituted a gross miscarriage of justice. The husband seeks an order on appeal that “[t]he matter be heard by a Judge of the Federal Circuit Court at Brisbane other than Judge Vasta”. However, there having been no application brought by the wife in the first place, nor any application brought in accordance with the Rules of Court as earlier discussed, there exists no “proceeding” for us to remit for rehearing. Otherwise, this Court has no supervisory function over the Federal Circuit Court of Australia to direct the further hearing of particular matters by particular judges. We simply observe that given this appeal and its outcome, there would be good reason for these parties to seek to have their substantive proceedings heard by a judge other than Judge Vasta, but that is a matter for the parties and that Court. For these reasons we make the following orders: (1) The appellant be granted leave to amend his grounds of appeal as contained in the Notice of Appeal filed 11 December 2018 to include new Grounds 11 and 12.

(2) The appeal from the orders made by Judge Vasta on 6 December 2018 is allowed.

(3) The Declaration made on 6 December 2018 be set aside.

(4) Order 1 of the Orders made on 6 December 2018 be set aside.

(5) There be no order as to costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).

(Cth). (6) The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 15 February 2019.



Associate:



Date: 15 February 2019

[1] Pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).

[2] See, Tate and Tate [2002] FamCA 356; (2002) FLC 93-107 at 89,012 – 89,016 applying Witham v Holloway (1995) 183 CLR 525.

[3] Transcript, 10 August 2018, p 25 ln 15 – 19; p 28 ln 1 – 6; p 30 ln 14 – 23.

[4] [2009] FCAFC 151; (2009) 260 ALR 462 (“Clampett”).

[5] Per Fogarty J in Stevenson & Hughes [1993] FamCA 14; (1993) FLC 92-363 at 79,816 cited with approval in Jackson and Fordham [1994] FamCA 178; (1995) FLC 92-561 at 81,595.

[6] Transcript, 6 December 2018, p 1 ln 1 to p 3 ln 9.

[7] Transcript, 6 December 2018, p 3 ln 11 to p 4 ln 28.

[8] Transcript, 6 December 2018, p 4 ln 30 to p 5 ln 42.

[9] Transcript, 6 December 2018, p 5 ln 44 to p 6 ln 20.

[10] Transcript, 6 December 2018, p 6 ln 22 to p 7 ln 28.

[11] Transcript, 6 December 2018, p 7 ln 33 to p 8 ln 26.

[12] Transcript, 6 December 2018, p 8 ln 27 – 31.

[13] Transcript, 6 December 2018, p 8 ln 33 to the end of the transcript.

[14] See, for example, Kendling & Kendling (Contempt) (2008) FLC 93-384; Tate and Tate (No 3) (2003) FLC 93138 and Hay v Hay [1998] FamCA 95; (1998) FLC 92-819.

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