Bahar and Sohrab (No 7)

[2017] FamCA 930

FAMILY COURT OF AUSTRALIA

BAHAR & SOHRAB (NO 7) [2017] FamCA 930

FAMILY LAW – Contempt proceedings – where defendant under a disability – where no case guardian appointed – applicability of a fitness to plead process – proceedings stayed pending appointment of case guardian or cessation of disability – where request made for the appointment of a case guardian to the Attorney-General

Crimes Act 1900 (ACT)
Crimes Act 1914 (Cth) - 20B
Family Law Act 1975 (Cth) - s 35, s 112AP(1)(b)

Family Law Rules 2004 - r 6.08, r 6.11(1), r 21.08
Judiciary Act 1903 (Cth) - s 68(1)

Hinch v Attorney-General (Vic) (1987) 164 CLR 15
Kesavarajah v The Queen (1994) 181 CLR 230

Re Colina and Anor; Ex Parte Torney (1999) 200 CLR 386
Witham v Holloway (1995) 183 CLR 525

APPLICANT: Ms Bahar

RESPONDENT: Mr Sohrab

FILE NUMBER: CAC 1429 of 2014

DATE DELIVERED: 16 November 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 3 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Farrar

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

1. It is ordered that:

   (a)The proceedings for contempt against Mr Sohrab and the application that the proceedings be conducted in a manner analogous to fitness to plead proceedings are stayed until a case guardian is appointed or until Mr Sohrab is no longer a person under a disability.

   (b)Pursuant to Rule 6.11 of the Family Law Rules 2004, there being no suitable person available for appointment as case guardian for Mr Sohrab, it is requested that the Attorney General for the Commonwealth of Australia nominate a person in writing to be his case guardian.

   (c)I direct that the Registrar of the Family Court of Australia bring these orders to the attention of the Attorney General of the Commonwealth of Australia.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bahar & Sohrab (No 7) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1429  of 2014

Ms Bahar

Applicant

And

Mr Sohrab

Respondent

REASONS FOR JUDGMENT

Background

1. The parties to this matter are Ms Bahar, the applicant wife, and Mr Sohrab, the respondent husband.

2. This matter deals with the pending contempt proceedings, initiated by the wife on 9 February 2017, in relation to the alleged failure of the husband to comply with property orders made 12 February 2016. The wife contends that the husband is guilty of contempt under s 112AP(1)(b) of the Family Law Act1975, or in the alternative, that he has contravened orders under s 112AB without reasonable excuse.

3. The current issue before the court is the husband’s capacity to participate in proceedings, particularly in light of the judgment delivered by Watts J on 27 September 2017, where it was found that the husband was not capable of adequately conducting his case before Watts J without a case guardian.

4. At present the respondent is a person found to be under a disability.  He may only start, continue, respond to, or seek to intervene in a case by a case guardian, pursuant to r 6.08.  He does not have a case guardian.  No application is pending for the appointment of a case guardian.  No suitable person has been identified as a case guardian.

5. The consequence of this is that he cannot participate in the contempt proceedings that are being brought against him. 

6. At proceedings on 3 October 2017, notwithstanding Watts J’s determination that the respondent is a person under a disability, the applicant sought that the contempt proceedings continue without the appointment of a case guardian, using a procedure analogous to criminal proceedings involving the question of whether an accused is fit to plead.  The respondent attended the proceedings by telephone.  His ongoing position is that he is too unwell, mentally, to participate in proceedings.

Is there a basis to adopt a fitness to plead process where there is no case guardian?

7.Section 35 of the Family Law Act sets out the jurisdictional basis for dealing with contempt in the Family Court and states:

Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

1. Section 112AP of the Family Law Act sets out the court’s power in relation to the making of contempt orders.

2. Rule 21.08 of the Family Law Rules 2004 sets out the procedure to be followed in relation to such matters, and states:

   At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:

   (a) inform the respondent of the allegation;

   (b) ask the respondent whether the respondent wishes to admit or deny the allegation;

   (c) hear any evidence supporting the allegation;

   (d) ask the respondent to state the response to the allegation;

   (e) hear any evidence for the respondent; and

   (f) determine the case.

3. The procedure to be followed rightly contemplates the capacity of a respondent to contempt proceedings to be able to participate meaningfully in those proceedings.

4. The application to apply a process analogous to fitness to proceed in relation to contempt appears to be novel.  No example has been identified to show that this is a course that has been previously followed.  Fitness to plead is governed substantively by the Crimes Act 1914 (Cth) and procedurally by the Crimes Act 1900 (ACT).

5. It has been established that contempt, pursuant to s 112AP, is not an offence against a law of the Commonwealth. The source of the obligation or liability in relation to contempt arises under the Constitution as an aspect of the vesting of judicial power by Chapter III of the Constitution[1]. The unfitness to be tried provisions, from s 20B onwards of the Crimes Act 1914, have no application to contempt proceedings, as they relate to proceedings for a federal offence on indictment.

   [1] Re Colina and Anor; Ex Parte Torney (1999) 200 CLR 386.

6. While the Territory law for the mode of dealing with unfitness will have application in relation to an offence against a law of the Commonwealth[2] in accordance with s 68(1) of the Judiciary Act 1903, contempt is not an offence against a law of the Commonwealth.  That is, the statutory schemes that regulate unfitness proceedings have no application.

   [2] Kesavarajah v The Queen (1994) 181 CLR 230.

7. In Witham v Holloway (1995) 183 CLR 525  the High Court accepted what had been said by Deane J in Hinch[3] that “all proceedings for contempt ‘must realistically be seen as criminal in nature’” and, as a result, all proceedings for contempt whether civil or criminal must be proved beyond reasonable doubt.

   [3] Hinch v Attorney-General (Vic) (1987) 164 CLR 15.

8. This characterisation impacts considerations in relation to a respondent’s capacity to participate in the proceedings.

9. In Kesavarajah v The Queen the High Court accepted the description set out by Smith J in Reg v Presser of:

   The minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice.  Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R v Pritchard require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings,, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.

10. Given these minimum standards as a prerequisite for a trial without unfairness or injustice, it may be the case that it is necessary to adopt these safeguards to prevent an abuse of the Court’s processes, as the Court cannot countenance an unfair or unjust trial, notwithstanding that the statutory schemes do not apply.

11. However, fundamentally, in order to come to a position whether this is so requires proceedings to take place in which the respondent is able to give response to the proposition that a fitness to be tried regime should be applied to this case, and as to what form it should take should it be applicable. 

12. To date the respondent has not been afforded that opportunity as a person under a disability without a case guardian.  Unless and until either the respondent is either no longer a person under a disability, or a case guardian is appointed, this is a matter that cannot be resolved, without the denial to the respondent of his basic right to be accorded natural justice.

13. The contempt proceedings and application to deal with the respondent in a manner analogous to where a person is unfit to plead will be stayed pending the appointment of a case guardian for the contempt proceedings or until the respondent is no longer under a disability.

14. In the proceedings before me on 3 October 2017 I raised the applicability of r 6.11(1), which deals with circumstances where no case guardian is identified for a person under a disability, as here.  It is in the following terms:

    If in the opinion of the court a suitable person is not available for appointment as a case guardian of a person with a disability, the court may request that the Attorney-General nominate, in writing, a person to be case guardian.

15. Contempt proceedings are matters of significant seriousness.  It is important that they are not left in abeyance for extended periods, as delay may generate unfairness both to the applicant and to the respondent.  Under those circumstances it is appropriate that a request be made for the nomination of a case guardian by the Attorney-General.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 November 2017.

Associate: 

Date:  16 November 2017