Can I come in if my hands aren’t clean?

What is the position of an Applicant and/or an Appellant that approaches the Family Court or the Full Court of the Family Court seeking Orders when they themselves have not complied with Orders of the Court.

The Courts of Equity have long taken the approach that “he who comes into equity must come with clean hands”. This in effect requires the person seeking relief from the Court to show that his past record in the transaction is clean.

At common law, it has long been held that “those in contempt may not be heard”. This was later relaxed to a position of ‘those in contempt may not be heard if the contempt occurs in the same proceedings”.

In the Family Court, the position of a party who is in contempt and seeks orders from the Court is not that dissimilar to the Courts of Equity and Common Law.

The position of the Family Court if a litigant is in contempt and approaches the Court for Orders was set out in Fahmi and Fahmi (1995) FLC92-637 and more recently Watson and Watson (2013) FLC 93-530.

The cases of Fahmi and Watson indicate that the following approach seems to be the position in the Family Court when a party in contempt approaches the court for orders:

(a) Procedural justice dictates that the fact that a party has disobeyed an order of the Court is not of itself a bar to the party being heard on a subsequent application brought by that party;

(b) In courts exercising jurisdiction under the Family Law Act gives rise to a discretion not to permit a party being heard.

(c) The rule applies where facts establish disobedience of an order, even though there has been no application for the party to be dealt with for contravention or contempt, and no determination has been made that the party is guilty of a contravention or contempt;

(d) The Court may, in its discretion, refuse to hear a party in breach of an order only if that party makes an application in the same proceedings or in the same cause in which the disobedience of an order has occurred;

(e) The question of whether the application is in the same proceeding or in the same cause is crucial and is determined by reference to the structure and content of the definition of “matrimonial cause” in the Family Law Act, the relevant parts of the Act and the Family Law Rules 2004 (Cth) that apply and, ultimately whether the proceedings may be identified as distinct because the nature of the relief claimed in them respectively is determinative;

(f) No question as to a party being heard arises:

(i) if that party is defending, rather than bringing, an application;

(ii) on an appeal by the party to set aside the order on which the alleged contempt is founded;

(iii) where a party applies for the purpose of purging the party’s contempt;

(iv) where a party against whom contempt is alleged seeks to be heard on a submission that, having regard to the true meaning and intent of the order which the party is said to have disobeyed, the party’s actions did not constitute a breach of it, or having regard to all the circumstances, the party ought not to be treated as being in contempt.

The safer option is of course to comply with a court order and avoid the risk of such an application being brought which may prevent you from being heard before the Court.

Pierre Hawach, Accredited Specialist – Family Law
McAuley Hawach Lawyers.
11 Fennell Street,
Parramatta NSW 2150
Tel: (02) 9633 1826
Fax: (02) 9687 8114

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