Allwright & Allwright
[2024] FedCFamC1A 79
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Allwright & Allwright [2024] FedCFamC1A 79
Appeal from: Allwright & Allwright (No 3) [2023] FedCFamC1F 985 Appeal number: NAA 312 of 2023 File number: CAC 89 of 2022 Judgment of: MCCLELLAND DCJ, GILL & CHRISTIE JJ Date of judgment: 14 May 2024 Catchwords: FAMILY LAW – APPEAL – CONTRAVENTION PROCEEDINGS – Nature of contravention proceedings – Where the appellant failed to prove that the primary judge pressured her to continue the contravention hearing without a lawyer appointed pursuant to s 102NA – Where the primary judge and self-represented appellant miscommunicated and the appellant wrongly believed she could not adduce further evidence beyond an affidavit –Contraventions involving obligations affecting children are a different scheme to those that do not – Where the primary judge erred by not considering and distinguishing contraventions under two different statutory schemes – Where the primary judge’s orders failed to identify the specific count in the Contravention Application – Requirement for particularity including in the disposition of a contravention – Privilege in respect of self-incrimination – No obligation upon an alleged contravener to give evidence or to file an affidavit – Appeal allowed – Orders relating to the alleged contraventions be set aside – Matter remitted for rehearing to a judge other than the primary judge. Legislation: Evidence Act 1995 (Cth) ss 128, 132 and 138
Family Law Act 1975 (Cth) Pt XIIIA and Pt VII, Div 13A, ss 70NAA, 102NA, 112AD and 112AP
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Cases cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Guglielmin v Trescowthick & Ors(No 3) (2005) 220 ALR 535; [2005] FCA 139
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62
Reid v Howard (1995) 184 CLR 1; [1995] HCA 40
Rochfort v John Fairfax & Sons [1972] 1 NSWLR 16
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs: 95 Date of hearing: 27 February 2024 Place: Heard in Sydney, delivered in Canberra The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 312 of 2023
CAC 89 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ALLWRIGHT
Appellant
AND: MR ALLWRIGHT
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, GILL & CHRISTIE JJ
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS THAT:
1.The Declarations 1, 2, 3 and 4 of 13 October 2023 are set aside.
2.Orders 5, 6 and 7 of 13 October 2023 are set aside.
3.Contravention 1, being:
On 3 August 2022, in contravention of order 3 of the Orders dated 8 February 2022, the Respondent relocated the children’s residence from [Town M] in New South Wales to [Town L] in Queensland, without the consent of the Applicant, or an order of the Court, in contravention of the Orders.
is remitted to a judge other than the primary judge to be dealt with according to law.
4.Contravention 2, being:
On 5 May 2023, in contravention of order 3 of the Orders dated 8 February 2022, the Respondent relocated the children’s residence to [Town F] in New South Wales, without the consent of the Applicant, or an order of the Court, in contravention of the Orders.
is remitted to a judge other than the primary judge to be dealt with according to law.
5.Contravention 13, being:
On 15 June 2022, an Order was made by [a Judicial Registrar] ordering the parties to exchange disclosure by 13 July 2022. The Respondent failed and/or refused to provide disclosure by 13 July 2022 in contravention of order 9 of the Orders dated 15 June 2022.
is remitted to a judge other than the primary judge to be dealt with according to law.
6.Contravention 18, being:
On 4 October 2022, the Applicant requested specific information from the Respondent regarding the tenancy of the investment properties located at [H Street], [Town L] and [G Street], [Region J] to enable the Applicant to participate in the joint management of the investment properties. The Respondent failed and/or refused to provide any information regarding the investment properties in contravention of order 1 of the Orders dated 23 September 2022.
is remitted to a judge other than the primary judge to be dealt with according to law.
7.Contravention 19, being:
On 14 November 2022, the Applicant’s solicitor requested specific information from the Respondent regarding the tenancy of the investment properties located at [H Street], [Town L] and [G Street], [Region J] to enable the Applicant to participate in the joint management of the investment properties. The Respondent failed and/or refused to provide any information regarding the investment properties in contravention of order 1 of the Orders dated 23 September 2022.
is remitted to a judge other than the primary judge to be dealt with according to law.
8.Contravention 20, being:
On 6 January 2023, the Respondent advertised on Facebook to rent out a room in the property located at [H Street], [Town L] without the prior written consent of the Applicant, or an order of the Court, in contravention of order 3 of the Orders dated 23 September 2022.
is remitted to a judge other than the primary judge to be dealt with according to law.
9.Contravention 21, being:
On 9 February 2023, the Applicant’s solicitor requested specific information from the Respondent regarding the tenancy of the investment properties located at [H Street], [Town L] and [G Street], [Region J] to enable the Applicant to participate in the joint management of the investment properties. The Respondent failed and/or refused to provide any information regarding the investment properties in contravention of order 1 of the Orders dated 23 September 2022.
is remitted to a judge other than the primary judge to be dealt with according to law.
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 the pseudonym Allwright & Allwright has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, GILL & CHRISTIE JJ:
This appeal is in relation to a series of contraventions determined against the appellant.
As identified by the primary judge, the appellant mother and respondent father formed a relationship in around mid-2012 and commenced living together around late 2012. There are three children of their relationship. The appellant also has two children from a previous relationship. The parties separated in December 2021. The appellant commenced proceedings on 20 January 2022 in relation to parenting and property. Various interlocutory orders were made in relation to both the parenting and property disputes.
On 27 July 2023, the respondent commenced contravention proceedings against the appellant in respect of both child related and non-child related orders.
On 13 October 2023, the hearing was conducted in relation to the alleged contraventions. That hearing resulted in the appellant being found to be in contravention of various orders, being placed upon a good behaviour bond and ordered to pay the respondent’s costs.
It is from those orders that the appellant now appeals.
At the hearing of the appeal, both parties were unrepresented leading, despite their best efforts, to some lack of clarity.
Despite this lack of clarity, a number of issues related to the nature and manner of conduct of the contravention proceedings emerged. These related to:
(a)The procedural fairness requirements that apply to contravention proceedings;
(b)The structure of the legislative provisions that distinguish between consequences of failure to comply with obligations that affect children, and sanctions for failure to comply with orders, and other obligations that do not affect children; and
(c)Uncertainty arising from the terms of the orders as to which contraventions that the appellant was found to have committed.
THE CASE AT FIRST INSTANCE
The contravention proceedings, commenced by the respondent on 27 July 2023, were conducted before the primary judge on 13 October 2023 and were the subject of an ex-tempore judgment given that same day.
The Application – Contravention alleged 22 contraventions in relation to various orders.
At the hearing, the contraventions were ultimately reduced to seven counts of alleged contraventions.
The judgment determining the remaining alleged contraventions relevantly declared that the appellant had committed contraventions of orders made on three separate dates, and that the appellant had not proven a reasonable excuse. A single sanction was applied against the appellant in the form of a good behaviour bond. The appellant was ordered to pay costs in a fixed sum of $6,000, and the contravention application was otherwise dismissed.
LEAVE TO APPEAL
The appellant sought leave to appeal. However, no leave is required – a contravention not falling within the category of prescribed judgments for which leave is required pursuant to s 28(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The appellant is entitled to appeal as of right.
THE APPEAL GROUNDS
Although the appellant made wide ranging criticisms of the proceedings and judgment at first instance, those central to the determination of the appeal can be more closely identified.
The appellant relied upon three matters as undermining the requirement that she be accorded procedural fairness in the proceedings. These related firstly to an assertion that pressure had been applied to the appellant to continue with the hearing of the contraventions without a lawyer rather than adjourning to secure legal representation, in circumstances where she was prohibited from cross-examining the respondent.
Secondly, they related to an apparent instruction by the primary judge that the appellant was not permitted to adduce further evidence beyond her affidavit, other than in re-examination.
Thirdly they related to the privilege protecting the appellant from self-incrimination. This issue took a number of forms. Firstly, that the appellant was not told that she was not required to give evidence. Secondly, that the trial judge permitted the respondent to cross-examine the appellant about breaches of obligation that fell outside the contraventions pursued in the proceedings. The questioning was in aid of the proof of the contraventions that remained on foot but was conducted without identifying that privilege against self-incrimination may arise.
Aside from the procedural fairness issues, the appellant also relied upon a challenge to the jurisdiction by which the primary judge purported to deal with the contravention of the non-child related obligations, the primary judge apparently dealing with those pursuant to the child related contravention provisions.
The appellant further relied upon an asserted failure by the primary judge to adequately identify, in the orders, the contraventions determined against the appellant.
The appellant made other criticisms in relation to the findings made by the primary judge, and the manner of exercise of discretion, it is not necessary to deal with such issues, the appeal being allowed based on the other matters identified above.[1]
[1] See Boensch v Pascoe (2019) 268 CLR 593 at [7].
THE NATURE OF CONTRAVENTION PROCEEDINGS
In order to properly contextualise the appellant’s complaints, it is useful to identify some characteristics of contravention proceedings and the implications flowing from such.
Jurisdiction and the statutory frameworks for contravention of child related and non-child related obligations
In general terms, the Family Law Act 1975 (Cth) (“the Act”) deals with contraventions of orders by the application of three sets of provisions. One, inapplicable to this case, is by means of contempt proceedings where the contravention involves a flagrant challenge to the authority of the court (s 112AP of the Act).
Otherwise, a contravention is either dealt with by Pt VII, Div 13A of the Act, which deals with the consequences of failure to comply with orders and other obligations that affect children, or by Pt XIIIA of the Act, which deals with sanctions for failure to comply with orders, and other obligations, that do not affect children.
Division 13A and Pt XIIIA each set out a statutory scheme for dealing with allegations of contravention. They have a number of similar features, but also significant distinctions.
Points of similarity include that both deal with the contravention of an order. Again, similarly, both refer to a reasonable excuse in relation to the contravention.
However, there are also significant differences between the two schemes. For example, the provisions deal differently with the place of reasonable excuse. Part XIIIA and Div 13A contain different provisions in relation to the content of a reasonable excuse, and Div 13A places the burden of proof upon the contravener, while Pt XIIIA does not.
Further differences between Pt XIIIA and Div 13A may be seen in the powers to impose sanctions, and the manner in which that power is exercised.
Perhaps, most significantly, is the distinct manner in which Pt XIIIA and Div13A identify the function of the court in determining the outcome of a contravention.
At s 70NAA(1) of the Act, the purpose of Div 13A is set out as dealing with the “powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children”.
In McClintock & Levier,[2] Coleman J described that the purpose of proceedings in Div 13A as coercive, being “to enforce compliance with orders”, as distinct from the dual purposes under s 112AP of the Act which are coercive and punitive.[3] Similarly, Cronin J described that the focus of the court in dealing with a contravention under Div 13A must be in “making orders which will enforce future compliance with its orders”.[4]
[2] (2009) FLC 93-401 (“McClintock & Levier”).
[3] McClintock & Levier at [154] and [156].
[4] McClintock & Levier at [233].
In contrast, Pt XIIIA does not contain such a description, rather s 112AD(1) of the Act merely describes the power of the court as being to impose a sanction “most appropriate in the circumstances”.
This appeal is not a convenient or appropriate vehicle to explore the extent of differences between Div 13A and Pt XIIIA. However, the above differences reinforce the necessity of dealing with child related contraventions and non-child related contraventions distinctly and in accordance with the different statutory regimes.
More fundamentally, the jurisdiction to deal with the different contraventions is confined to the operation of the relevant provisions, the contravention of child related orders being confined to Div 13A, and of non-child related orders to Pt XIIIA.
CHARACTERISTICS OF CONTRAVENTION PROCEEDINGS
Contravention proceedings contain the prospect of the application of a sanction upon a respondent. Whether that sanction is imposed for the purpose of enforcing compliance (per Div 13A) or more broadly, as is “most appropriate” (Pt XIIIA), there is a wide range of potential outcomes varying in form and severity, and including civil penalties ranging from bonds, fines and community service orders, through to sentences of imprisonment.
The prospect of the imposition of civil penalties carries with it a number of necessary implications.
Particularity
One implication is the requirement for particularity, both in respect of the allegation of contravention, and in the determination of a contravention.[5]
[5] Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [26], citing John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519.
Without particularity, the respondent is denied an adequate basis with which to determine whether or how to concede the contravention or to contest it. Similarly, without such particularity, the court is deprived of the fundamental information both for the hearing of the contravention and, where applicable, the imposition of sanction.
This requirement for particularity is reflected in the Application – Contravention form that commences such proceedings. It requires an applicant to “[s]tate precisely what the respondent did or did not do which you allege amounts to a contravention, including the date, time and place, if applicable”.
The necessity of particularity extends to the Court’s determination of the contravention. Unless the finding is expressed with sufficient particularity, it faces the prospect of being set aside and is incapable of founding the basis for the determination of sanction. Where the order resolving the contravention is expressed such that it may refer to one or more alleged contraventions, it lacks the degree of particularity or certainty that is required.
A lack of particularity in the determination of the contravention also leaves the parties unclear as to what contravention has been established and renders the respondent vulnerable to facing the same contravention being run a second time, without the capacity to demonstrate that it is a contravention that has been previously resolved and undermining the application of res judicata to the subsequent contravention.
Privilege in respect of self-incrimination
A further implication related to the potential imposition of civil penalties is the applicability of the privilege from self-incrimination.[6] The protection from self-incrimination is a substantive protection, reflected in the Evidence Act 1995 (Cth), including at s 128 and s 132.
[6] Reid v Howard (1995) 184 CLR 1 at 8.
A consequence of the protection is that there is no requirement placed upon a respondent to file affidavit material in advance of the hearing or at all. A respondent is at liberty to present no evidence, or to present evidence either by affidavit or orally, and to defer determining whether to do so until the applicant has led all of their evidence in support of the allegation.
A further consequence is that, should a respondent give evidence, the respondent is entitled to rely upon the privilege in the event that the respondent is cross-examined in relation to other alleged contraventions that are not then before the court, even if such cross-examination is in aid of establishing the contraventions that are then before the court.
THE APPEAL
Before turning to other issues, it is necessary to deal with the procedural fairness complaints made by the appellant.
Challenges based on procedural fairness issues should be dealt with prior to other challenges. If a judgment is reached without according adequate procedural fairness, it lacks the basic requirements of a judgment and should be set aside regardless of the validity of other criticisms. See by way of example comments by Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd,[7] regarding the necessity of dealing with bias issues in advance of other issues, and their extension to other issues of procedural fairness, by Basten JA in Royal Guardian Mortgage Management Pty Ltd v Nguyen.[8]
[7] (2006) 229 CLR 577 at 611.
[8] (2016) 332 ALR 128.
Procedural Fairness
The first challenge based upon procedural fairness raised by the appellant relates to her unrepresented status before the primary judge and the consequences of the operation of s 102NA of the Act. In this case the appellant was, at the hearing, restrained by that provision from being able to personally cross-examine the respondent who brought the allegations of contravention against her. In order to challenge his evidence by cross-examination, it was necessary for the appellant to be legally represented. However, she was unrepresented.
The appellant’s complaint in relation to this appears to be one of having been caught by surprise by this restriction, a notation having been made by a Senior Judicial Registrar in advance of the hearing on 1 September 2023 that “[n]o [s]ection 102NA factors have been identified in this matter”.
Before this Court, the appellant asserts that she obtained legal advice based upon the inapplicability of s 102NA and accordingly was not prepared for the manner of conduct of the hearing. However, no evidence was adduced on appeal to support this contention.
In any event, the primary judge, on being alerted to the issue, appropriately raised it with the appellant at the commencement of the hearing. However, the appellant asserts that the primary judge then pressured her to continue without legal representation.
In order to deal with this complaint, it is necessary to consider how the matter unfolded before the primary judge.
At the commencement of the hearing before the primary judge, counsel for the respondent raised both the applicability of s 102NA of the Act and the notation of the Senior Judicial Registrar approximately six weeks earlier.
The primary judge identified the restriction to the appellant, which was mandatory in nature. His Honour further identified that if the appellant did not wish to ask questions of the respondent, then no issue would arise. The primary judge advised the appellant that if she did wish to ask questions, then an order could be made through legal aid for the appellant to be represented in respect of the cross-examination. The appellant was further advised that ineligibility for legal aid would not remove her entitlement to such a lawyer.
The primary judge took care to alert the appellant that the contravention matters and the consequences of a finding of contravention were serious, warranting legal representation.
The response by the appellant was that she was only anticipating making submissions. She was advised by the trial judge that she could be cross-examined, and just as she could be cross-examined and challenged, so too could she cross-examine and challenge the father (although not directly).
When the appellant advised that she wished to go ahead, the primary judge reiterated that she could not cross-examine the father. The appellant then said that she may need some more time to think about the decision as she thought there would only be submissions at the hearing. The primary judge set out the process that would be followed, emphasising that penalties could be imposed.
The appellant queried whether they could start the proceedings and then allow her to decide whether she wanted such representation, or whether the case should be undertaken in “one turn” after she ascertained whether she could get legal aid. [9]
[9] Transcript 13 October 2023, p.6 lines 38–40.
It was to this query that the primary judge observed that he did not “want to unnecessarily adjourn things”.[10] However, far from this being the exertion of improper pressure upon the appellant, his Honour then observed that orders could be made to secure representation for the appellant. The primary judge then enquired as to the penalty that would be sought by the respondent, and was advised a bond would be pursued, but that not all of the contraventions would be pursued.
[10] Transcript 13 October 2023, p.6 line 42.
The primary judge then indicated to the parties that the options were to conduct the hearing or defer it to deal with the issue of representation for the appellant.
The primary judge then established which contraventions were to proceed, the number being substantially reduced from the respondent’s application. Shortly after this, there was an equipment malfunction and a part of the proceedings was neither recorded nor transcribed. No party has sought to adduce evidence of what took place during this portion of the proceedings.
It was during this portion that a determination was made to conduct the proceedings without adjournment, and without the appellant being able to cross-examine the respondent.
Upon the recording recommencing, the proceedings were stood in the list for the appellant and the respondent’s legal representatives to have discussions. On their return, the primary judge explained to the appellant the process of adopting her affidavit and being cross and re-examined. The primary judge once more reiterated the severity of the proceedings and asked how the appellant would like to proceed, to which she responded, “… let’s go ahead. Thank you”.[11]
[11] Transcript 13 October 2023, p.14 line 17.
As set out above, the material before this court does not support the appellant’s contention that undue pressure was placed upon her to proceed without representation. The primary judge appropriately identified the restriction that would be placed upon the appellant should the matter proceed that day, identified the remedy available to obtain legal representation, and indicated a willingness to defer the matter to allow that to happen.
This complaint is without merit.
The second complaint relates to the instructions given by the primary judge in respect of the appellant’s evidence.
Whilst the primary judge was explaining the process of cross-examination and then re-examination, he described the limits to re-examination. In response to the appellant’s query about being able to adduce more evidence, the primary judge said that she could not, save in the process of re-examination where she could adduce further evidence in relation to the matters arising in cross examination.
While it is apparent that the primary judge was addressing, appropriately, the usual limitations on re-examination, to the extent that the appellant was enquiring whether she could lead further evidence beyond what was contained in her affidavit, the answer given was not correct. As the respondent to the contravention application, the appellant was entitled to read, or not read, her affidavit into evidence. Whether it was read into evidence or not, the appellant was entitled to lead such further evidence as she might choose orally.
While no criticism can fairly be made of the primary judge’s description as to the limits on re-examination, the exchange has the appearance of the appellant and primary judge being at crossed purposes in a manner apt to leave the appellant with the impression that she could adduce no evidence further to her affidavit, other than in the confines of re-examination.
Such a restriction could not be imposed upon the appellant and worked a procedural unfairness upon her.
The third of the procedural fairness issues flows from the appellant’s complaint that abandoned contraventions were brought back into the proceedings at a point after it was indicated that they would not proceed.
This complaint appeared to relate specifically to the contraventions that were directed to a failure on the part of the appellant to disclose material in the property proceedings in accordance with an order of a Judicial Registrar dated 15 June 2022 that was in the following terms:
9. Within 28 days of these Orders, each party shall exchange all documents as required for financial disclosure as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The contravention that proceeded was in the following terms:
[Count 13] On 15 June 2022, an Order was made by Judicial Registrar [...] ordering the parties to exchange disclosure by 13 July 2022. The Respondent failed and/or refused to provide disclosure by 13 July 2022 in contravention of order 9 of the Orders dated 15 June 2022.
Other allegations of contravention in relation to the same order were contained in the Application – Contravention, relating to purported breaches of that same order on 1 September 2022, 14 September 2022, 14 November 2022 and 9 February 2023. These were discontinued at the commencement of the hearing.
However, during the appellant’s cross examination she was questioned in relation to such. The following interaction ensued:
[COUNSEL FOR THE RESPONDENT:] Well, I’m not asking you about your reason. You deny the allegation. I’m saying that by 14 November you still hadn’t complied with your duty of disclosure?
[THE APPELLANT:] I’m going to bring it to your attention that you have actually crossed out and withdrawn these ones and you’re only going on number 3, which is by the July.
[COUNSEL FOR THE RESPONDENT:] Madam, would you please - - -?
[THE APPELLANT:] And you pulled out all these other ones about 14 November, et cetera.
[COUNSEL FOR THE RESPONDENT:] Madam, would you please - - -?
[THE APPELLANT:] So you’re asking me questions now about contraventions that you’ve already withdrawn.
[COUNSEL FOR THE RESPONDENT:] Madam, would you please answer my question. By 14 November 2022 you still hadn’t complied with your duty of disclosure?
[THE APPELLANT:] How is this relevant to contravention 3?
[COUNSEL FOR THE RESPONDENT:] Are you objecting to the question?
[THE APPELLANT:] Which contravention is it relating to?
[COUNSEL FOR THE RESPONDENT:] Are you objecting to the question, because his Honour will then have to determine it?
[THE APPELLANT:] Because before the court today, since your redaction of 14, 15, 16 and 17, only number 13, which is now called number 3, is on the table and that’s pertaining to a contravention for the July date.
[COUNSEL FOR THE RESPONDENT:] Are you objecting - - -?
[THE APPELLANT:] 28 days after 15 June, not – not November, February, March and so on.
[COUNSEL FOR THE RESPONDENT:] Your Honour - - -
HIS HONOUR: No.
[COUNSEL FOR THE RESPONDENT:] Could I ask your Honour to ask the witness - - -
HIS HONOUR: Yes. No. You must answer the question. The contravention there provides:
That on 15 June an order was made by Judicial Registrar [...] ordering the parties to exchange disclosure by 13 July 2022. The respondent failed and/or refused to provide disclosure by 13 July 2022 in contravention of the orders.
Now, this – these questions go to the contravention, because if it wasn’t provided by 13 July, and it hasn’t been provided, that’s still a breach?
[THE APPELLANT:] And to that I say when I was asked whether I – how I pleaded for contravention 3 I said not guilty, because I had given out to my legal representative my disclosure and it’s not – the onus is now not on me to – to go behind their back and give it to [the solicitor for the respondent] myself. It’s their job and they failed me.
[HIS HONOUR:] But you were asked questions on the basis at this point you were self-representing?
[THE APPELLANT:] Okay. So then after the 23 September 2022 orders, which I then for the first time - --
[COUNSEL FOR THE RESPONDENT:] I’m going to - - -?
[THE APPELLANT:] - - - received a - - -
HIS HONOUR: No. Please.
[COUNSEL FOR THE RESPONDENT:] And ask for a direction that the witness answer the question.
HIS HONOUR: Reput the question, please.
[COUNSEL FOR THE RESPONDENT:] By 14 November 2022, you still hadn’t complied with your duty of disclosure under the order; that’s right, isn’t it?
[THE APPELLANT:] Okay. And I was beginning my answer to that question, and this is my answer. On the – from the September ’23 orders onwards I was self-representing and I noticed that paragraph 15 set out by Senior Judicial Registrar [...] on 23 September states that:
Financial proceedings are otherwise adjourned for directions hearing before Judicial Registrar [...] at Canberra on 23 November.
And every directions hearing since then has stated that financial proceedings are adjourned and I’ve taken that as anything to do with finance is now adjourned, adjourned, adjourned forward.
[COUNSEL FOR THE RESPONDENT:] Is the answer to my question yes, you hadn’t provided it by then?
[THE APPELLANT:] I hadn’t provided it. That’s correct.
[COUNSEL FOR THE RESPONDENT:] No. And that same letter that I just referred to, if you go along at – a little bit more has exactly what is sought pursuant to the rules, doesn’t it?
[THE APPELLANT:] Yes, it does.
[COUNSEL FOR THE RESPONDENT:] Right?
[THE APPELLANT:] Although it’s incorrect.
[COUNSEL FOR THE RESPONDENT:] And then if you go over to the letter of 9 February 2023?
[THE APPELLANT:] Sorry. Can you repeat that?
[COUNSEL FOR THE RESPONDENT:] 9 February ’23?
[THE APPELLANT:] 9 February 2023. What are we talking about? Orders?
[COUNSEL FOR THE RESPONDENT:] The letter?
[THE APPELLANT:] The letter.
HIS HONOUR: So that’s a – that’s in the affidavit. That’s - - -?
[THE APPELLANT:] On what page? Do we have a page number, please?
[COUNSEL FOR THE RESPONDENT:] I don’t have page numbers - - -
HIS HONOUR: No, there’s no page numbers. It’s the next one. Next letter on from the 14 November 2022 letter, which is one - - -?
[THE APPELLANT:] Annexure?
[COUNSEL FOR THE RESPONDENT:] It’s the same annexure, madam. It starts:
We refer the above matter previous correspondence and communications with both yourself directly and with each of your previous three legal representatives. Please find a copy of the 14 November letter again enclosed for your convenience.
HIS HONOUR: It’s [FA]7?
[THE APPELLANT:] [FA] – thank you. Yes.
[COUNSEL FOR THE RESPONDENT:] And then it goes on to say:
We note that your obligation to provide disclosure documents has been raised on a number of occasions. To date you have provided no disclosure documentation to our office and you were obliged to do so under the orders.
Do you see that letter:
Your refusal or failure to comply with the obligations are a breach of court order.
Do you see that?
[THE APPELLANT:] Yes. I’m on that page.
[COUNSEL FOR THE RESPONDENT: You knew that you hadn’t complied?
[THE APPELLANT:] Yes. Yes, I did.
[COUNSEL FOR THE RESPONDENT: Yes?
[THE APPELLANT:] But I didn’t understand that at the time. This is just what [the solicitor for the respondent] was writing to me - - -
[COUNSEL FOR THE RESPONDENT:] You knew - - -?
[THE APPELLANT:] - - - saying that I had not complied.
[COUNSEL FOR THE RESPONDENT:] You knew you hadn’t complied, because you started giving disclosure a day or two ago; is that right?
[THE APPELLANT:] Following Senior Judicial Registrar [...] advice, yes.
[COUNSEL FOR THE RESPONDENT: Heavily redacted documents; that’s right, isn’t it?
[THE APPELLANT:] No. No. Everything is very, very - - -
[COUNSEL FOR THE RESPONDENT:] Are they redacted, madam?
[THE APPELLANT:] Pardon?[12]
[12] Transcript 13 October 2023, p.21 line 22 to p.24 line 9.
Although the questioning was forensically legitimate, in that a concession from the appellant that she was non-compliant at a later date would go to establish her non-compliance at the earlier date the subject of the contravention, therein lay the problem. The question was seeking an answer that would implicate the appellant in a continuing breach of the order (or another obligation cast upon her by the relevant provisions governing disclosure) beyond that with which she was being dealt with, the later contravention being discontinued.
During the exchange, the appellant complained that she was being examined in relation to a matter that had been discontinued, effectively objecting to the line of questioning. She was told that she “must answer”.[13]
[13] Transcript 13 October 2023, p.22 line 5.
However, the objection raised by the self-represented litigant, being questioned about a matter that she was not then facing, inherently raised the issue of self-incrimination.
To be fair to the primary judge, the issue was not raised in those terms. However, the circumstances required the objection to be considered in the light of that privilege.
The failure to deal with the objection in those terms worked a procedural unfairness against the appellant.
Jurisdictional error
Declarations 1 to 4 of the contravention judgment were the operative declarations that purported to determine the contraventions alleged against the appellant. They were the declarations upon which the sanction was based (Order 5), and to which the costs orders (Order 6), and the dismissal of the balance of the contraventions (Order 7) were referable. They are in the following terms:
1. The Court being satisfied (and the mother having admitted) that the mother has committed contraventions of orders under the Family Law Act1975 (Cth) (“the Act”) affecting the children X born 2013, Y born 2015 and Z born 2017 (“the children”), being contraventions of the orders made in the Federal Circuit and Family Court of Australia on:
(a) 8 February 2022
(b) 15 June 2022 and
(c) 23 September 2022
(“the orders”);
2. the mother not having proved that she had a reasonable excuse for the contraventions;
3. no court having jurisdiction under the Act having previously made an order in respect of a contravention of the orders; and
4. the Court being satisfied that Subdivision E of Division 13A of Part VII of the Act applies to the contraventions.
(As per the original)
Declarations 1 and 4 place the determinations of contravention, and the rejection of reasonable excuse in Declaration 2, squarely within Div 13A of the Act. Further, the imposition of sanction is grounded in the application of Div 13A. However, only the orders of 8 February 2022 imposed obligations affecting children. The orders of 15 June 2022 and 23 September 2022 did not impose any such obligations, being concerned with matters pertaining to the property dispute between the parties.
Accordingly, Div 13A of the Act had no application to those orders, which are governed by Pt XIIIA of the Act. The determinations and imposition of sanction in relation to orders of 15 June and 23 September 2022 was thereby made reliant upon the wrong provision.
Further, given the global nature of the single sanction, the error taints the imposition of the sanction even insofar as it relates to orders imposing obligations in respect of children.
This matter requires the setting aside of the contraventions in respect of the property related contraventions, and the setting aside of the sanction.
The contravention in relation to obligations that affect children.
Counts 1 and 2 of the Application – Contravention related to an order of a Senior Judicial Registrar dated 8 February 2022 which was in the following terms:
3. The Mother is restrained from locating the children’s permanent residence from [Town M] NSW, unless with the prior written consent of the Father or by further Order of the Court.
This order, on its terms, casts obligations upon the appellant that affect children. Accordingly, the contravention proceedings in respect of these two counts falls within Div 13A. The two alleged contraventions were as follows:
[Count 1] On 3 August 2022, in contravention of order 3 of the Orders dated 8 February 2022, the Respondent relocated the children’s residence from [Town M] in New South Wales to [Town L] in Queensland, without the consent of the Applicant, or an order of the Court, in contravention of the Orders.
[Count 2] On 5 May 2023, in contravention of order 3 of the Orders dated 8 February 2022, the Respondent relocated the children’s residence to [Town F] in New South Wales, without the consent of the Applicant, or an order of the Court, in contravention of the Orders.
Although the orders and declarations disposing of these allegations identify the orders contravened, the Declaration at 1(a) does not identify whether it is in relation to Count 1, Count 2 or both. This defect in the order requires the order to be set aside.
The consequence that flows from this is that the order as to costs (Order 6), which relied in part on the respondent’s success in the proceedings, must also be set aside.
Disposition
Each of the orders relating to the alleged contraventions must be set aside. An issue then arises as to the consequences of such.
Different considerations apply to the alleged contraventions of the child related orders as opposed to the property related orders.
The trial of the property related orders involved, as set out above, an undermining of the appellant’s privilege from self-incrimination. In the face of that privilege, she has been compelled to give answers that could now be used to implicate her in the contraventions that have been set aside, or in relation to other allegations of breaches of her obligations pursuant to the relevant provisions governing disclosure. Each of these carries with them the prospect of the imposition of a civil penalty upon the appellant. The use of those incriminating answers against the appellant would likely involve an abuse of the court’s processes, given that it was by the court’s processes that the appellant was compelled to answer them.
The appellant should not suffer having those answers used against her in a further prosecution of the contraventions in relation to the disclosure orders or other disclosure obligations.
While a stay of proceedings was raised as a potential remedy, such would unduly interfere with the entitlement of the respondent having his action tried in the ordinary course.[14]
[14] See discussion by Mansfield J in Guglielmin v Trescowthick & Ors(No 3) (2005) 220 ALR 535, adopting Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16.
Other remedies are available to the appellant upon a rehearing, whether by the operation of s 138 of the Evidence Act 1995 (Cth), or by the inherent powers of the Court to protect its processes from abuse, that neither deprive the appellant of protections from the use of the answers procured against her nor deprive the respondent of his cause of action.
The better approach is to remit the matter to another judge to be dealt with according to law.
The same consideration of self-incrimination does not arise in respect of the child related orders, as the questions and answers given in that part of the contravention proceedings did not raise the same issues of self-incrimination. The contravention proceedings in relation to the child related orders remain unresolved by virtue of this appeal judgment and should also be remitted to another judge to be dealt with according to law.
COSTS
Each of the parties were unrepresented and no issue as to costs arose.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Gill & Christie. Associate:
Dated: 14 May 2024
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