Polak & Polak (No 2) [2025] FedCFamC1F 174 (14 March 2025)

1. The husband has advised the court that he will be able to purge his contempt in respect of count 2 by 4 pm on 28 March 2025.

1. I direct that should the husband wish to rely upon further evidential material in respect of the sentencing proceedings that he file and serve such by 4 pm on 17 April 2025.
2. The husband is released to appear in court on that day following having given an undertaking.

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 Polak & Polak, a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These proceedings involve an allegation of contempt against the husband. That contempt relates to non-compliance with orders that imposed an obligation upon him to deliver Motor Vehicle 1 and associated keys to the solicitors for the wife. The husband contests that the wife has made out this matter at a prima facie level. The wife has adduced evidence of the making of the order that cast the obligation upon the husband, and has adduced evidence that the vehicle and the associated keys have not been delivered. That is the height of the evidence.
2. The husband submits that that evidence is not sufficient to make out a prima facie case. In assessing prima facie case it is necessary to remember that it is the case of the prosecutor that is taken at its highest, drawing all available inferences favourably to the prosecutor. In doing so it is necessary that such is capable of addressing each of the elements of the offence, which in broad terms here involve the presence of an order and intentional engagement in acts of non‑compliance, which together constitute a flagrant challenge to the authority of the court. The extent of the evidence here, while sufficient to show that there is an order by going to the record of the court, and while sufficient to show that the vehicle has not been delivered, is insufficient to do so.
3. In some cases the mere fact of non-compliance will be sufficient to deal with, at least at a prima facie level, the issues of intent and flagrant challenge, but that turns upon the circumstances of each case and the inferences that are available to be drawn. In many cases those circumstances will mean that such inferences are available. This, however, is not one of them, so I find that there is no prima facie case to be answered by the husband in respect of count one.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Gill.