Arora & Dash (No 6)
[2024] FedCFamC2F 1172
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arora & Dash (No 6) [2024] FedCFamC2F 1172
File number(s): MLC 12416 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 8 August 2024 Catchwords: FAMILY LAW – contempt application – late filing of material – father did not sign the power of attorney – mother believes it was deliberate – father had genuine cause to be concerned of signing – found not to be a flagrant disregard of the court – contempt application dismissed – appointment of a Judicial Registrar of this court pursuant to 106A to execute a Power of Attorney document in the name of the respondent Legislation: Family Law Act 1975 (Cth) ss 106A, 112AD & 112AP(1)(a)(b) Cases cited: Arora & Dash (No 4) [2024] FedCFamC2F 879
Medlow & Medlow [2017] FLC 93-796
Division: Division 2 Family Law Number of paragraphs: 33 Date of last submission/s: 14 August 2024 Date of hearing: 8 August 2024 Place: Melbourne Solicitor for the Applicant: In Person Counsel for the Respondent: Mr Moisidis Solicitor for the Respondent: Cinque Oakley Bryant Lawyers The Independent Children's Lawyer: Appearance Excused ORDERS
MLC 12416 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARORA
Applicant
AND: MS DASH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
8 AUGUST 2024
Amended pursuant to rule 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 14/8/24
THE COURT ORDERS THAT:
1.The Application of Contempt filed by Ms Dash on 25 July 2024 be and is dismissed.
2.Pursuant to section 106A of the Family Law Act 1975 (Cth), a Judicial Registrar of the Federal Circuit and Family Court of Australia be and is appointed to execute and/or sign any necessary document/s in the name of the Respondent, Mr Arora, to facilitate Ms M to be appointed as a power of attorney on behalf of Mr Arora (‘the POA’) to make the limited enquires set out within Annexure “A” of the 12 June 2024 orders and provide that POA to the parties.
3.To give effect to Order 2 herein, the form of the POA as described in Order 2 will be in the form of Annexure “B” to these orders (noting that this document has a form of signing and execution clause omitted from the Annexure “A” to the orders of 12 June 2024.
4.The respondent, Ms Dash, make any necessary direction to Ms M to cause and ensure any information or document obtained by Ms M is kept confidential to the parties and applied or used only for the purpose of these proceedings and provide any and all information obtained by Ms M to the other parties as soon as possible.
AND THE COURT NOTES THAT
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties and unrepresented parties who are not permitted to personally cross the other may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
B.This matter is listed for final hearing on 18 November 2024 November 2024 (for an estimated 4 days).
“B”
Name of principal: MR ARORA
Address of principal: N Street, Suburb O
APPOINTMENT
I appoint
Ms M (Jurist/Lawyer)to be my attorney
AUTHORISATION
I authorise my attorney:
(1)To specifically obtain the following documents and information on Mr Arora’s behalf:
(2)The Proper Officer, P Bank, Country L.
Details (including copies of all bank statements as and from 1 January 2020} of all the open and closed accounts, including all brokerage accounts, in the name of Mr Arora (Personal Identity number […])
(3)The Proper Officer, Q Bank, Country L
Details of all the open and closed accounts, including all brokerage accounts, for Mr Arora (Personal identity number […]}, including copies of all bank statements as and from 1 January 2020.
(4)The Proper Officer, R Bank, Country L
Details of all the open and closed. accounts, including all brokerage accounts, for Mr Arora (Personal Identity number' […]), including copies of all bank statements as and from 1 January 2020.
(5)The Proper Officer, S Bank, Country L
Details of all the open and closed accounts, including all brokerage accounts, for Mr Arora (Personal identity number […]), including copies of all bank statements as and from 1 January 2020.
(6)My taxation records, taxation returns and filed documents with Country L Taxation Authority for the 2020, 2021, 2022 and 2023 financial years.
(7)I do not authorise my attorney to obtain any other documents or information except that described in this power of attorney.
Signed: Signed by the Judicial Registrar of the Federal Circuit and Family Court of Australia in the name of Mr Arora pursuant to the Power of the Court under Section 106A of the Family Law Act 1975 and by Order of Judge O'Shannessy made on 8 August 2024.
Date:
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).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged. During the proceeding on 8 August 2024, I delivered three judgments ex tempore, for the convenience of the parties, this judgment will contain all three.
In the course of Arora & Dash, an application of contempt comes before me by the Wife, Ms Dash (‘the Wife’) in the proceedings where it is alleged that Mr Arora (‘the Husband’) has contravened an order of the Court. The Wife asserts that not only has he contravened an order of the Court, but that he has done so in a flagrant challenge to the authority of the Court, pursuant to section 112AP(1)(a) and (b) of the Family Law Act 1975 (Cth) (‘the Act’). Section 112AP is as follows.
Section 112AP Contempt
(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.
Wife’s late filed affidavit
In the course of discussing with the Husband (the respondent to the application) the procedures of the Court, as I am obliged to do with a litigant in-person, the issue has arisen of whether the applicant Wife should be permitted to rely upon the late-filed affidavit of 7 August 2024.
When the matter was raised, the Husband raised with me that he had only been served with the document that morning and had not had an opportunity to read it, and I stood the matter down for about 40 minutes to give him the opportunity to read the affidavit.
The Husband read the affidavit, but maintains his objection to the late filing of it. It may be that the real substance of his objection is not so much the late filing, but that there are matters contained within it with which he strongly disagrees. That is not an unusual circumstance, and I am not dealing with whether the assertions in the affidavit are true or not at this point. I am simply dealing with the issue of whether the wife should be permitted to rely upon it.
The main matter that informs my decision of whether or not to let the applicant Wife rely upon the affidavit is that it is said, and not implausibly at this point, that it arises in response to the allegations or matters that the Husband had raised in his affidavit sworn on 6 August 2024 and sealed and served on 7 August 2024. In the circumstances where the late-filed affidavit is a response to a document, that provides a reasonable explanation for the late filing. The affidavit addresses an issue that it was incumbent upon the Wife to address in the circumstances of what the Husband had raised.
Issue raised in the late filed affidavit
The background to this is that in hearing before me, and before another judge, on an interlocutory or interim basis, evidence had been put before the Court that, on its face, claimed and, indeed, before me, indicated that the Husband, at least at one point in time, had received a substantial income within the jurisdiction of the Government of Country L.
The Husband denies that allegation. The outcome of the matter when it was last before me was that I made an order that the Husband execute a power of attorney in a certain form, authorising a person who it was represented to me was a lawyer in Country L to make inquiries to obtain information that would, it was asserted, shed light on those activities. I made the order.
At this point, I am satisfied that there is no substantial prejudice to the Husband. I also take into account that the orders I made in regard to the execution of the power of attorney were made on 12 June 2024, and it is very recently, by way of letter of 3 August 2024 and affidavit of 7 August 2024, that the Husband has complained that the person purported to be a Country L lawyer was, in fact, not a qualified or registered lawyer in the sense of being a member of the Country L Bar Association.
Conclusion: affidavit can be relied on
I take all those matters into account, and I will permit the late-filed affidavit as well as the earlier affidavit to be relied upon.
The Contempt Application
I made an order that the respondent, the Husband, execute a particular power of attorney in the orders of 12 June 2024.
By way of background, I recite relevant paragraphs from my previous judgment in Arora & Dash (No 4) [2024] FedCFamC2F 879 to shed light on my decision.
10The parties duly filed trial material and then on 5 June 2024 the Wife filed an application returnable before me that the Husband execute a power of attorney in favour of the Wife’s Country L lawyer in all of the terms sought in the power of attorney.
11The point of that is set out in her affidavit filed on 30 May 2024, that annexed a document that appears to be an attempt at an affidavit by a Country L lawyer, Ms M, sworn on 21 May 2024, or at least attested on 21 May 2024 before a notary public. This contained information (that the Wife said was publicly available information) and that indicated that the Husband, Mr Arora, had been assessed for capital gains tax in Country L in the 2020 year was in the sum of 479,000 Country L currency, in 2021 it was 556,000 Country L currency, and in 2022, 6,770,000 Country L currency.
12At the exchange rate agreed by the parties (a search shows that it's roughly one to 6) a capital gain being assessed of roughly 6,700,000 Country L currency would be in the order of AUD $1,000,000. That's corroborated by what will be court's exhibit 1, being a xe.com currency converter search showing that AUD$1 is 6.93 Country L currency as at today.
…
Issue of identification
14I raised with counsel that there's likely to be many Mr Arora’s in Country L, or anywhere, given how likely that is to be a common name. That possibility of this being someone else was not disavowed by Mr Arora. The application in a case pressing for the execution of the power of attorney motivated an application for an adjournment by the Wife's counsel of the entire trial before me. It was put as simple as further and better information needed to be obtained as there was, on the face of it, a plausible indication of very substantial assets in the Husband's hands but not disclosed by him.
15The affidavit of Ms M on its face did not recite that even the Husband's date of birth was known to her, let alone any other identifying details. On the basis of Ms M's document, there was nothing to identify the documents said to be publicly available in D1 as directly relating to the Husband. Hence, I discussed with counsel many possibilities, including that those documents related to some other Mr Arora and that the Wife was on a wild goose chase.
16During that discussion the Wife was able to locate, while sitting in court, on her mobile phone, what she says is a photograph of what she says is an identification document in Country L. Those documents had not been disclosed by either parent and, upon my pressing, were provided to the ICL and to the Husband's lawyers during the hearing before me.
17After further discussion, I adjourned the matter to enable the Husband's counsel to take instructions about those documents. Those further documents (that the Wife was able to locate) including what was a photograph of an identification document, were later tendered to me as W1. I gave the parties a bit more than half an hour to take further instructions before those documents were tendered in evidence. Upon the return of the parties, it was asserted that the number in the identification document, being #...53, matched exactly the number on each of the, said to be, taxation records for the 2020, 2021 and 2022 year.
18Hence, there was now, once those documents were tendered, a real apparent connection between the documents naming a Mr Arora with the Husband.
19Upon return, it was accepted from the bar table by the Husband's counsel that the identification document was, in fact, a Country L driver's licence for the Husband, and the photograph on that document bears a significant resemblance to the Husband and there is no dispute that that is a photograph of him on that document.
20The Husband's trial affidavit, filed 30 May 2024, was entirely silent about the documents that had been before the Court on 6 February 2024. That troubled me, which was part of why I pressed for further details to try and get some sort of a preliminary view whether this was a wild goose chase or whether there was real substance, or the possibility of substance, in the Wife's allegations.
21The Husband, through his counsel, told me that he simply did not accept the veracity or bona fides or genuineness of the documents that are contained in exhibit W1 (the extract of the Country L taxation records).
22I discussed with counsel that, essentially, what the Wife was alleging was a very significant fraud on the Husband's part by simply denying very significant taxable income, with the inference that some of that income was still available to the Husband.
23The denial of the bona fides or genuineness of the Wife’s documents shows that the Husband asserts that the Wife had relied upon, and somehow obtained, entirely false documents that linked him to significant income in the Country L taxation system. I will not make a finding on this during this hearing.
…
27However, I should also add that the Wife's case is that the extent of the fraud and the dishonesty and the abuse of the court processes are very relevant to the resolution of the Husband's time with the child, X. At this point, I don't dismiss that they may well be relevant. So, in the children's proceedings, there are quite detailed opposing allegations of significant family violence from one parent to the other. Further, there is on face value some evidence to corroborate, or that could corroborate, the allegations of each parent against the other.
On 17 June 2024, the Husband contacted the Country L Bar Association, where he queried, and I quote:
[Ms M], the above person claims to be a registered lawyer in [Country L]. The reason for the email query is that I could not find this person registered with the [Country L] Bar Association by searching on [Country L] Bar Association lawyer search page.
There was a response to that that day that said:
(1)[Ms M] is not a member of the [Country L] Bar Association,
(2)She is not an "[…]" -
(3)People who work in courts can never be lawyers.
The Husband responded on 26 June 2024:
Thank you for your reply. Based on your reply, would this be misleading if this person calls herself as, "qualified and registered lawyer in [Country L] "?
And the response on 27 June was 2024:
Yes, that's misleading.
The Husband had accurately quoted Ms M's assertion in the affidavit whereby she said at paragraph 1 of her affidavit filed in support of the Wife's application on 28 May 2024,
1.I am a qualified and registered lawyer in [Country L].
The Husband did not comply with the order and did not do anything further about Ms M's qualifications until, on 3 August 2024, he wrote to the Wife's solicitors and annexed the chain of correspondence and requested, or demanded, depending on your point review, that the contempt application that had been filed be withdrawn.
Subsequent to that, the Husband filed an affidavit of 23 pages where he annexed the letter of 3 August 2024 in addition to the email chain referred to above.
At the start of this hearing, I had a discussion with Mr Moisidis, of counsel, who indicated that the purpose of the application was to keep things moving and obtain the information that is referred to in the previous reasons. At this point, I do not know whether obtaining that information will vindicate or assist the Wife’s case (that the Husband has hidden or has something to do with hidden funds in Country L and declared in Country L tax returns) OR, whether that will vindicate the Husband's position that, almost like Inspector Clouseau, "That is not my tax return in [Country L]. I did not receive that income".[1]
[1] Inspector Clouseau is the character who, after someone was bitten by the dog, when asked, "I thought you said your dog does not bite", Inspector Clouseau said, "That is not my dog".
I do not know, when I get the information, which side of the story it is going to support, if any. In that discussion with Mr Moisidis, I raised the issue of whether an application pursuant to section 106A (where a registrar would execute the power of attorney) would better assist. He embraced that and made it clear that that was the application that he made; however, the contempt application was pursued in the meantime.
I indicated to the parties that I would deal with the 106A application at the conclusion of the contempt application. When a party is in contravention of an order, there is a procedure under section 112AD of the Act.
Section 112AD Sanctions for failure to comply with orders
(1)If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.
(1A)The power given to the court under subsection (1) in respect of a contravention of a maintenance order applies even if the order has been complied with before the matter of the contravention comes before the court.
(2) The sanctions that are available to be imposed by the court are:
(a)to require the person to enter into a bond in accordance with section 112AF; or
(b)to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or
(c) to fine the person not more than 60 penalty units; or
(d)subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.
(2A)The court must not impose a sentence of imprisonment on the person under paragraph (2)(d) in respect of a contravention of a maintenance order unless the court is satisfied that the contravention was intentional or fraudulent.
(3)An order under subsection (1) may be expressed to take effect immediately, or at the end of a specified period or on the occurrence of a specified event.
(4)Where a court makes an order under subsection (1), the court may make such other orders as the court considers necessary to ensure compliance with the order that was contravened.
Section 112AP (as recited above) is where a matter is not only in contravention of an order, but is in a flagrant disregard for the authority of the Court. The Husband has told me from the bar table, and in his affidavit, and from the witness box, that he concedes that he has not executed the power of attorney as he was ordered to do so. He also concedes that he has not appealed that order, and he says he intended to do so, but, effectively, he was “dumped” by the lawyers that represented him in the proceedings before me pursuant to the section 102NA scheme, and from that point, he was unrepresented.
The matter of what a flagrant disregard is has been dealt with numerous times by the authorities of this Court, and it is convenient that I recite the settled statement of that in Medlow & Medlow [2017] FLC 93-796 where, at paragraph 42, the Full Court confirmed the existing authority of another Full Court case as follows:
42.As the Full Court observed in Ibbotson and Wincen (1994) FLC 92-496 at 81,162:
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 section 112AD. In the ultimate, it is a question of fact and degree whether the stringent terms of [section 112AP(1)(b)] are satisfied.
It is also submitted to me that I need to be satisfied beyond reasonable doubt, not on the balance of probabilities. I take into account a number of matters, including that on the information provided from the Bar Council to the Husband that Ms M is not registered with the (Country L) Bar Council. I am not satisfied that the communication from the Bar Council means that it is improper for Ms M to operate at all as a lawyer or to make the inquiries.
Conclusion as to “flagrant challenge”
I am not satisfied beyond reasonable doubt or on the balance of probabilities that the Husband had acted in flagrant disregard of the Court. He had what was to him, a serious and genuine reason to doubt the matter. I am satisfied on the limited evidence that I have, that Ms M is an appropriate person to make the limited inquiries of the power of attorney, and the power of attorney limits that purpose. If Ms M goes rogue, as the Husband fears, that is something that will fall, effectively, at the feet of the Wife.
So I dismiss the contempt application.
The Section 106A Application
I now deal with the section 106A application, that is, that in the circumstances where the Husband has not signed the power of attorney, and has set out his reasons why he has not done so.
Section 106A Execution of instruments by order of court
(1) If:
(a)an order under this Act has directed a person to execute a deed or instrument; and
(b)that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;
the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
I do acknowledge the difficulty that the Husband has, being a litigant in-person unemployed in Australia, trying to find out, from his perspective, what in the blazes happened in Country L that his licence number purports to be attached to records that purport to be of the Country L taxation authorities that show enormous sums of money being received as income by him in recent years whilst he was living in Australia.
There is an inherent implausibility about that. That does not mean it is not possible, and I simply do not know yet. The issue of the weight to be given to any information produced, if any, will be a matter to be dealt with at trial, but I am satisfied that it is in the interests of justice and appropriate that that power of attorney be acted on by a person with a law degree in Country L, and that the registrar of the Court should be authorised under section 106A to execute that power of attorney so that the Wife's lawyers can send that to Ms M.
I also add that when aware of the Husband's information, the Wife attempted to contact Ms M again to make inquiries about her qualifications, to be told, "She is on holidays and will be in [Country T]", as you do at this time of the year if you are in Country L, "until early September"; hence, the Wife has not been able to clarify exactly what is meant by "qualified and registered lawyer" with Ms M.
I am open to the possibility that the whole thing is a fraudulent scam, and that either he Wife and Ms M have joined in a scheme to disadvantage the Husband, however, the prospect of that seems to me remote: but not impossible. The prospect that the Husband raises, that Ms M is, effectively, scamming the Wife is also not impossible:
Balancing all of the matters that I have to balance, including that I have a trial that has been adjourned once relating to the welfare of a little boy, as well as the division of the parties' property fixed for final hearing in November, I conclude as follows: I am satisfied it is in the interests of justice that I make that section 106A order this day, and I will so order.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 26 August 2024
0