There has been some commentary in relation to the imprisonment of Parties embroiled in the Family Law system. Recently, the Full Court of the Family Court of Australia overruled a decision where a Father had been ordered to serve a term of imprisonment for 12 months for failing, refusing or neglecting to provide full and frank disclosure in a property matter. The Full Court opined that the husband’s imprisonment constituted a gross miscarriage of justice. Suffice to say, the real issue is about Contempt of Court versus Contravention of an Order.
Granted, the primary judge of this case was found to have fallen foul of the procedural rules in relation to finding the Father guilty of contempt of Court. But as most Family Lawyers will tell you, there are certainly some cases where the duty of disclosure and orders requiring the same, fall upon deaf ears. So when a party consistently refuses to fulfil their obligation with respect to disclosure, how can it be ensured there is no prejudice to the other party? In short, it can’t. The options available are limited to either an Application for Contravention or an Application for Contempt.
Where an Order to disclose specific documents has been breached, the usual course of action is to file an Application for Contravention and the remedy will typically be another Order providing the defaulting party to disclose those documents. The problem with this is that more often than not, a self-representing litigant simply does not fulfil the obligation. The argument becomes circular where further applications are filed for the failure to disclose and the defaulting (self-represented) party suffers only the consequence of inconvenience of court appearances before Registrar’s at interim hearings and the occasional harsh word from the bench. All the while, the represented party incurs further unnecessary costs in simply trying to force the other side to perform their duty to disclose. Where is the punishment for disregarding Orders? If there is no punishment, then what is the point of Orders at all?
The alternative is an application for Contempt. For clarity, in order for an application for Contempt to be successful, the Family Law Act 1975 expressly provides that the contravention must involve a flagrant challenge to the authority of the Court. If it is held that the defaulting party had contravened the Orders and the contravention was a flagrant challenge to the authority of the Court, then the Court may order a term of imprisonment. Simple, right?
It’s not as simple as one may think. As the punishment may involve a term of imprisonment, the burden of proof must be beyond a reasonable doubt and not on the balance of probabilities. In a sense, this burden is reversed wherein the onus is upon the defaulting party to prove they are not in contempt and that they have fulfilled their obligations.
Then, there are these things called rules. Pursuant to the Federal Circuit Court Rules, the defaulting party must be told of the allegation (obviously), state whether they admit or deny the allegation and be afforded the opportunity to defend the allegation. Then, after hearing the defence the Court may determine the charge and send the defaulting party to jail. And sometimes that is the punishment required to send a clear message not only to the consistently defaulting party, but to our society as a whole – Orders are not made to be broken.
Without losing sight of the premise that imprisonment should be a last resort, I’m starting a list of self-represented litigants who need a reality check when it comes to their obligations pursuant to Court Orders. After all, imprisonment is intended to rehabilitate. Right?