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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.