Celia & Celia (No 2) [2025] FedCFamC2F 1464 (20 October 2025)

1. Under s. 102NH(1)(j) of the Family Law Act 1975 (Cth) the Court will deal with any costs application based on the parties' material filed in accordance with the above orders without requiring the parties' physical attendance at court.

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. In the underlying proceeding, Mr Celia, the Applicant Husband, has made an application for the division of the parties' matrimonial property under s. 79 of the Family Law Act 1975 (Cth) (the Act). Ms Celia is the Respondent Wife.
2. The Husband has made two applications which were listed before me on 14 October 2025:

(a) a contempt Application against the Wife made in an application in a proceeding dated 22 January 2025_;_ and

(b) an application for interim spousal maintenance made in an application made on 5 December 2024_._

1. Given that one of the two applications was a contempt application I decided to deal separately with the two applications. I also decided first to deal with the contempt application because as to the contempt application my view was that the Wife ought not to have to call any evidence unless and until a prima facie case of contempt was made out.
2. At the end of my assessment of the Husband's evidence on the contempt application, I decided that the Husband had not established a prima facie case. As a result, I indicated that I would dismiss the contempt application without hearing evidence from the Wife. Because I proceeded to hear the interim spousal maintenance application immediately after the contempt application, I indicated that I would provide my reasons for the dismissal of the contempt application as soon as possible. These are my reasons as to the contempt application.
3. I will provide separate reasons as to the Husband's spousal maintenance application, which I publish contemporaneously with these reasons in Celia & Celia (No 3) [2025] FedCFamC2F 1465. I have also dismissed the Husband's interim spousal maintenance application.

1. Given the criminal nature of a contempt application, procedural requirements must be strictly adhered to (LGM & CAM (Contempt) [2008] FamCAFC 1; (2008) 38 Fam LR 229, [123]).
2. Procedurally, rr. 11.71(1), (6) and (7) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which set out the procedural requirements for a contempt application are as follows:

(1) If it is alleged that a person has committed a contempt of the court (whether or not the contempt occurred 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.

...

(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 the person 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 the person's defence to the allegation; and

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

1. Under r. 11.71(6)(a), I told the Wife of the contempt with which she was charged. The time date and place of the alleged contempt was 11:59 PM on 10 December 2024 at 11:59 PM. The contempt allegation (as set out in the Husband's application made on 5 December 2024) was as follows:

The Respondent (Wife) has failed to make a "Genuine offer" to settle the property matter which includes reference that this offer is made under "Division 4.2.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)", in deliberate Contempt of the Court orders dated 13 November 2024.

1. Under r. 11.71(6)(b), I asked the Wife "to state whether [she] admitted or denied the allegation". The Wife, by her counsel, denied the allegation.
2. I considered the Husband's affidavit made on 22 January 2025 in support of the application. I also considered his affidavit made on 16 July 2025 in circumstances in which a Registrar had made orders on 5 May 2025 for the filing of a consolidated affidavit as to the applications listed before me on 14 October 2025.
3. Procedurally, I adopted the approach that I would not regard the Wife's affidavit made on 18 July 2025 which dealt with issues both as to the contempt application and the interim spousal maintenance application as read on the contempt application unless I decided that there was a prima facie case under r. 11.71(7) as to the contempt application.

1. Contempt is dealt with in Part XIIIB of the Act. Section 112AP is as follows:

(1) 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.

[Emphasis added]

1. The Husband relies on s. 112AP(1)(b).
2. The Husband bears the onus to prove the contempt. The criminal standard of proof - beyond reasonable doubt - applies (Witham v Holloway (1995) 183 CLR 525 cited in Stradford & Stradford [2019] FamCAFC 25; (2019) 59 Fam LR 194, [18]).
3. The Husband must prove, beyond a reasonable doubt, that the Wife has deliberately breached the 13 November 2024 orders and that the alleged breach was "a flagrant challenge to the authority of the court" pursuant to s. 112AP(1)(b) of the Act.
4. In Oakley v Millar [2019] FamCAFC 12 a Full Court (affirming Ganem & Ganem (No 2) [2013] FamCA 257, [11]) said at [30]:
   1. Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
      • The respondent knew the terms of the orders. (Mead and Mead [2006] FamCA 435; (2006) FLC 93-267 at 80, 536)
      • The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English [1986] FamCA 69; (1986) FLC 91-729 at 75, 294)
      • 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 (sic) to do the act which is alleged to be the contempt. In the Marriage of English, above.
      • The act must involve a flagrant challenge to the authority of the court.
5. As to the fourth element, in Ibbotson & Wincen [1994] FamCA 103; (1994) 18 Fam LR 164; 122 FLR 385 a Full Court (later approved in Medlow & Medlow [2017] FamCAFC 159; [2017] FLC 93-796, [42]) held at 397:

The use of the term "flagrant challenge" to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s l12AD.

1. The Full Court's reference in Ibbotson to s. 112AD of the Act - which empowers me to impose a sanction for a failure to comply with orders other than by way of my contempt powers - emphasises the fact that contempt powers are reserved for the most serious breach of orders other than the "general run of breaches" to be dealt with under s. 112AD: namely, a "flagrant challenge" to the authority of the court.
2. I note the word "flagrant" is not defined in the Act. The authors of the Annotated Family Law Legislation [112AP.30] note the Macquarie Concise Dictionary definition of "flagrant" as "glaring; notorious; scandalous".
3. The flagrant challenge is not to the aggrieved party but to "the authority of the court."

1. The order the Husband alleges to be the subject of the deliberate contravention is an order of JR Reid made on 13 November 2024 as follows:
   1. Within twenty-eight (28) days, the parties each make a genuine offer to settle the property matter which includes reference to the following:
      1. This offer to settle is made under Division 4.2.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

(1) This rule applies to a financial or property proceeding.

(2) Each party must make a genuine offer to settle to all other parties within:

(a) 28 days after a conciliation conference or mediation; or

(b) if no conciliation conference or mediation has been held or is to be held - 28 days after the first court date; or

(c) such further time as ordered by the court.

(3) The offer to settle must state that it is made under this Division.

1. I had no evidence of a conciliation conference or mediation.
2. I treat the court order made on 13 November 2024 as an order made under r. 4.11(2)(c).

1. On the Husband's own case, the Wife had made an offer to resolve the case on 6 November 2024, seven days before JR Reid's order. The Husband deposed in his affidavit made on 16 July 2025 (Ex H2, [7]):

The Court orders of 13.11.2024 required fresh offers within twenty-eight (28) days. The Respondent (wife)'s alleged pre-order offer dated 6.11.2024 does not comply with the Court's directive. It was outdated. It was irrelevant. If she believed, her earlier offer was still valid, she should have formally re-submitted it again in compliance with the Court orders dated 13.11.2024.

[Emphasis added]

1. Although in his oral submissions before me, the Husband suggested that the Wife had not in fact made an offer on 6 November 2024 but merely sent a letter, I proceed based on his affidavit which concedes that she made an "earlier offer". The terms of the Wife's offer made on 6 November 2024 were not in evidence. The Husband has not proved that any issue arises as to whether the offer made was genuine (or not).
2. The Husband has not necessarily persuaded me that the Wife's offer made on 6 November 2024 was not made "within" 28 days of the date of the order made on 13 November 2024 to prove a breach of the order. The court orders do not, in terms, require a "fresh" offer as the Husband sets out in his affidavit. Even if the Husband's position is to be preferred and the better view is that the order made on 13 November 2024 required each party to make a genuine offer within a 28-day window which opened on 13 November 2024 and closed 11 December 2024 and therefore an offer made on 6 November 2024 did not satisfy the strict terms of the order made on 13 November 2024 because it was made outside the window the fact of the Wife's offer on 6 November 2024 is cogent evidence that any breach of the order by the Wife was not a "flagrant challenge to the authority the court".
3. In circumstances in which the Wife had made an offer on 6 November 2024 if there was any contravention of the order - strictly construed - and I make no finding one way or another - any contravention was not a flagrant challenge to the authority the court because any contravention could not be described as "exceptional or striking" in nature. An evident purpose of r. 4.11 is that parties take timely and genuine action to seek settlement of a dispute other than by way of a trial by way of exchanged genuine offers.
4. On the Husband's own evidence, he has not proved that the Wife's 6 November 2024 offer failed to fulfil that evident purpose of r. 4.11. In his affidavit, the Husband asserts only that the Wife's offer ought to have been "resubmitted." I repeat he does not say that the offer was not "genuine."
5. In summary, the Husband's case as to the Wife's contravention of the order amounting to a "flagrant challenge to the authority of the court" proceeded on the basis that the facts spoke for themselves because there was no offer between 13 November 2024 and 11 December 2024. In my view, there were additional facts which lead me to conclude there was not a prima facie case of a flagrant challenge to the authority of the court: namely, the fact that the Husband admitted that the Wife made an offer, it was not been proved that the offer did not fulfil the evident purpose of the rules to seek resolution by a process of exchanged offers and it has not been proved that the Wife's offer was not genuine.
6. On his evidence, the Husband did not make out a prima facie case of contempt. It was not necessary to hear any evidence from the Wife. I dismissed the charge of contempt.

1. I will dismiss the Husband's contempt application.

1. The Wife made an oral costs application. Time did not permit me to hear her oral costs application or hear the Husband's response.
2. If the Wife wishes to pursue her costs application both parties should file written outlines in accordance with the programming orders I publish together with these reasons. I ask that, in their costs submissions, the parties consider how I should approach the fact that the contempt application and the interim spousal maintenance application were both heard on the same day. Under s. 102NH(1)(j), I will deal with any costs application without requiring the parties' physical attendance at court.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.