BEST & BEST (CONTEMPT)
[2015] FamCA 1164
•1 September 2015
FAMILY COURT OF AUSTRALIA
| BEST & BEST (CONTEMPT) | [2015] FamCA 1164 |
| FAMILY LAW – CONTEMPT – Where the applicant alleged that acts of perjury by the respondent and her legal representatives constituted contempt – Where the applicant alleged that the respondent’s non-compliance with her disclosure obligations constituted contempt – Where the applicant alleged contempt by the respondent of the Federal Circuit Court–Where there were no outstanding proceedings before the court other than the subject application – Where final parenting orders had been made in this court on 27 June 2014– Where the applicant wrongly sought to rely on Rule 13.08 for production of documents in a Contempt Application – Where the Contempt Application did not adequately specify the charge made against the Respondent –Where the Court was not satisfied beyond reasonable doubt, or at all, that the respondent was in contempt of court – Application dismissed. |
| Family Law Act 1975 (Cth) ss 35, 112AP |
| Coward v Stapleton (1953) 90 CLR 573 Keeley v Brooking (1979) 143 CLR 162 Re Colina and Another; Ex parte Torney ((1999) FLC 92-872 M v M (1990) FLC, 92-106 S & B [1998] FamCA 129 S & L [1998] FamCA 147 Tate & Tate (2002) FLC 93-107 |
| APPLICANT: | Mr Best |
| RESPONDENT: | Ms Best |
| FILE NUMBER: | WOC | 91 | of | 2010 |
| DATE DELIVERED: | 1 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 25 June 2015 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
IT IS ORDERED
The contempt application filed by Mr Best on 16 April 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best (Contempt) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC 91 of 2010
| Mr Best |
Applicant
And
| Ms Best |
Respondent
REASONS FOR JUDGMENT
introduction
Before the Court is an application by Mr Best (“the applicant”) alleging 16 items of contempt by the respondent, Ms Best (“the respondent”), and by her legal representatives.
Thirteen items of contempt relate to alleged acts of perjury by the respondent in giving “false and misleading” oral or sworn evidence.
One item alleges that the respondent acted in contempt of court by failing to comply with the Family Law Rules in relation to disclosure of documents.
Two items of contempt are allegations that the respondent’s legal representatives committed perjury by providing false and misleading oral and written evidence to the Court.
At pages 29 – 31 of the applicant’s supporting affidavit sworn on 12 April 2015 the applicant also seeks various additional orders including the referral of this matter to the Supreme Court; permission to make submissions to the High Court regarding alleged breaches of judicial duty and/or possible corrupt behaviour by a judicial officer of this Court; permission to issue subpoenas on various entities and witnesses; and inspect and copy subpoena documents; and the discharge of previous orders made by Justice Aldridge in these proceedings.
The applicant also proposes, at pages 31 to 33 of his affidavit, that if a custodial sentence is imposed on the respondent in these proceedings, the applicant be granted sole parental responsibility for the parties’ children and that they reside with him. If a custodial sentence is not imposed, the applicant seeks shared parental responsibility for the children and the reinstatement of the orders of Justice Ryan dated 3 February 2012. The applicant further seeks various orders in relation to communication with the children, a non-denigration order against the respondent, and that the parties attend a post separation program and mediation. In relation to the matters set out in this paragraph it is to be remembered that the last set of final parenting orders made by this court on 27 June 2014 were made by Aldridge J, after a lengthy hearing, and provided that the “children shall spend no time with the father”. The father was also restrained from contacting the children (until they turn 18) or the mother.
Unlike an application for contravention brought under Part VII Division 13A of the Act, sections 35 and 112AP, the sections relied upon by the father for his contempt application, do not empower the court to vary existing parenting orders whether the contravention is made out or otherwise. Sections 35 and 112AP make no provision for a court to vary a parenting order even if the contempt is established.
The orders sought by the applicant for referral to the Supreme Court; permission to make submissions to the High Court regarding alleged breaches of judicial duty and/or possible corrupt behaviour by a judicial officer of this Court will not be made as no possible ground for making such referral is made out. This judgment will deal principally with the acts of contempt alleged by the applicant in his amended application for contempt filed on 16 April 2015. In so doing the judgment will deal with the father’s case that perjury by the mother and others, constitutes contempt of this court.
the law
Jurisdiction and Power of the Court in contempt proceedings
The power of this Court to charge and impose a punishment for contempt is found within ss 35 and 112AP of the Family Law Act 1975 (Cth) (“the Act”).
Section 112AP of the Act provides:
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.
(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6) The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.
(9) In this section:
"order under this Act" means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
Section 35 of the Act provides:
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.
The validity of s 35 of the Act was considered and affirmed by the High Court in Re Colina and Another; Ex parte Torney (1999) FLC 92-872 (“Torney”). In this case, Mr Torney had been the subject of an application by the Marshal of the Family Court alleging that he had committed the offence of contempt of court in the form of ‘scandalising the court’. Mr Torney applied for a writ of prohibition from the High Court on the ground that, by virtue of s 80 of the Constitution which provides that there must be a trial by jury for a trial on indictment of any offence against a law of the Commonwealth, the contempt charges against him could not be dealt with summarily in the Family Court. Mr Torney’s application was dismissed by the majority of the High Court, who found that the provisions of s 80 of the Constitution were not applicable to contempt proceedings. The majority held that such applications were able to be dealt with by way of summary procedure in the Family Court.
With respect to the relationship between ss 35 and 112AP of the Act, their Honours Gleeson and Gummow JJ outlined, at 86,215, that:
15…Section 21 of the Family Law Act creates the Family Court as a superior court of record, s 35 states that it 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'', and the relevant effect of s 112AP is to authorize provisions as to practice and procedure by the Rules17 and to specify the forms of punishment. Section 24 of the Judiciary Act 1903 (Cth) (``the Judiciary Act'') states that the Court shall have the same power to punish contempts of its power and authority as was possessed at the commencement of that statute by the Supreme Court of Judicature in England.
Accordingly, I find that it is a valid exercise of the Court’s power, assuming that there has been compliance with procedural requirements within the Family Law Rules 2004 (Cth) (“the Rules”), to proceed with the hearing of the application before me.
Procedural requirements
Part 21.1 of the Rules deals with the procedure for contempt proceedings in this Court.
Rule 21.02 of the Rules provides that a person seeking to apply for an order that another person be punished for contempt of court must do so by way of filing and serving an application for contempt and an affidavit which states the facts necessary to enable the Court to make the orders sought.
Rule 21.02 requires that a person seeking an order that another person be punished for contempt of court must proceed by filing an Application—Contempt.
The Application—Contempt form which is found on the Court’s website, sets out in Part C “Details of the alleged contempt”, the following:
You must set out the details of the act or omission that you allege amounts to a contempt of court. If you allege more than one contempt of court you must set out details for each contempt in a separate paragraph on an extra page or pages in accordance with Item 4.
The above words are important because the respondent should be able to understand the “charge” levelled against him/her.
In the Application—Contempt, filed by the applicant on 16 April 2015, the applicant does not frame a charge with sufficient detail for the respondent to know what it is that she did or said which is said to be a contempt of court. A very fundamental aspect of any charge is that a date upon which the alleged contempt is said to have taken place is required to form part of the charge. In this case the applicant does not in any of the 16 counts specify any specific date.
The applicant attempts to have the respondent charged with 16 counts of contempt. Two of those counts (Item 8 and 16) were alleged to be acts of perjury not by the respondent, but rather said to have been committed by her legal representatives. Clearly counts numbered 8 and 16 could not succeed against the respondent.
One ground of contempt (item 12) is said by the applicant to arise because the respondent had failed “to comply with the rules of the court in relation to disclosure of documents.”
The balance of the counts itemised in the Application (13 counts) alleges perjury by the respondent. No specific count is pleaded at all. In some counts there is greater indication of the area of evidence which is said to be an act of perjury, however, nowhere is there a specific charge which clearly identifies what the respondent said under oath, which, she knew to be untrue, at the time she swore it to be true.
A further complication is added to this case in that the applicant alleges that in some of his counts, the evidence which establishes the contempt was not given in the Family Court of Australia, rather it was given in the Federal Circuit Court.
When the affidavit relied upon by the applicant is read it can be seen that the applicant is asking the court to determine that the respondent has committed a crime punishable under the Crimes Act 1900 (NSW).
In the affidavit the applicant provides summaries of evidence given by Mr CC Best, a witness in a proceeding between the parties in the Federal Circuit Court. If the court was to proceed further with the hearing, such summaries would probably be challenged and, if so, would be struck out. In that instance no copy of transcript is provided.
Part of the applicant’s affidavit is dedicated to a complaint about the decision of Justice Ryan. This is a matter for appeal rather than the process which the applicant has chosen. Further, historically, the court record shows that Ryan J made final parenting orders in this matter on 3 February 2012. The father successfully appealed those orders and the matter was remitted for further hearing. That hearing occurred before Aldridge J who made final orders on 27 June 2014. Those orders currently stand as operative orders.
Some of the charges appear, when the affidavit of the applicant is read, to arise from a difference of recollection or views of particular events.
The applicant’s affidavit has described some evidence of the respondent as misleading. At other parts of the affidavit he has accused the respondent of lying to the court. The use of the description “misleading” appears to relate to statements made by the respondent under oath which are not said to have been made at a time when the respondent knew the statement was untruthful.
The applicant seeks to rely upon his summary of evidence contained in documents produced under subpoena to either the Federal Circuit Court or this Court. Such summaries could not be accepted as evidence of the contents of those documents.
Following paragraph 223 of the applicant’s affidavit he sets out the orders sought by him. The orders include a referral of the matter to the Supreme Court of NSW, or alternatively a full bench of Full Court of the Family Court of Australia. A referral in the nature of a “stated case” is sought to the High Court. Even if there be power for me to make any of those orders, no acceptable basis for making same is made out.
The father seeks orders permitting the issue of subpoena and consequent orders in relation to subpoena documents. In order for the Court to consider granting leave to issue any subpoena it would be necessary for the Court to see that a charge of contempt had been properly and comprehensively framed as against the respondent. No such charge has been framed in this case.
The applicant seeks the respondent “be held accountable to the full extent of the law in all respects for the provision of false and misleading evidence and acts of perjury”.
Should the Court impose a custodial sentence upon the respondent, the applicant seeks the Court make orders placing the parties’ children in his sole parental responsibility and residence. If those orders are not made then he seeks alternate parenting orders relating to the children.
Rule 21.01 provides that where there is an application that another person be punished for contempt of court, the Court must not impose a sentence of imprisonment if it considers that another consequence is more appropriate.
Rule 21.08 specifies the procedure for the hearing of the contempt application:
Procedure at hearing
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.
In Coward v Stapleton (1953) 90 CLR 573, the High Court, at 579-580, outlined that:
It is a well recognised principle of law that no person ought to be punished for contempt of Court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him in: re Pollard; R v Footer; ex parte Isaacs. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kui v Piggott. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the Court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the Court to consider as bearing either upon the charge itself or upon the question of punishment. Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.
Given the serious implications of a conviction for contempt, I have ensured that the procedural requirements set down by the Rules have been strictly adhered to in the proceedings before me.
The Amended Application Contempt
As stated above, the Rules provide for the Court to inform the respondent of the allegation of contempt. That allegation needs to be specified in the Application upon which the applicant moves. I find that the application does not sufficiently specify the charge levelled against the respondent and on that ground alone the application could be dismissed.
Standard of proof
Whilst confirming the power of the Family Court to proceed with contempt proceedings on a summary basis pursuant to s 35 of the Act, Hayne J at 86,332 – 86,333 in Torney outlined that the contempt power should be “invoked sparingly” and that proof beyond reasonable doubt is required for all forms of contempt (footnotes omitted):
109… The power to punish for contempt is an inherent power of courts charged with ``the function of superintending the administration of justice''181 . It is a power that is invoked sparingly but in a very wide variety of circumstances. There are, in that sense, many forms of contempt; there is no single ``offence'' of the kind that the criminal law knows.
110. What must be proved before a court punishes for contempt will vary from case to case. In particular, what must be shown about the alleged contemnor's intention can vary greatly. Although it may be that all forms of contempt are rooted in the need to protect the due administration of justice, some forms of contempt (like wilful disobedience of an order) are concerned more with the administration of justice in a particular case than other forms of contempt (like scandalising the court) which may be seen as more concerned with the general administration of justice. Traditionally this was taken to suggest a distinction between civil and criminal contempt. But the difficulty of distinguishing between proceedings for contempt that are proceedings intended to have a remedial, rather than coercive, effect was noted by the Court in Witham v Holloway . The Court concluded in Witham that all forms of contempt required proof beyond reasonable doubt, and four members of the Court concluded that the distinction between civil and criminal contempt was based upon differences that are ``in significant respects, illusory'' .
In Tate & Tate (2002) FLC 93-107, the Full Court reiterated that the standard of proof in these proceedings is beyond reasonable doubt, particularly in light of the significant consequences that may arise from a conviction of contempt. Their Honours Ellis, Kay and Holden JJ outlined at 89,016:
75. Having regard to the language of s 112AP of the Act, including the possibility of committal to prison and/or the imposition of a fine if a natural person is found to be in contempt and to the Rules of Court made pursuant to s 112AP(3), in our view, properly characterised, the application before Murray J seeking that the husband be dealt with for contempt of court was a proceeding for an offence. Whilst the acts constituting the alleged contempts in the instant case are not offences against any law of the Commonwealth, as to the meaning of which see Jerger v Pearce (1920) 27 CLR 526 at 531 and State of Western Australia v Commonwealth; Wororra Peoples & Anor v State of Western Australia; Biljabu & Ors v State of Western Australia (1995) 128 ALR 1 at 64, in our view, those acts, if established, constitute offences arising under an Australian law. Accordingly, the proceedings are criminal proceedings as defined in the Evidence Act and thus the standard of proof to be applied is as set out in s 141(1) of that Act, namely proof beyond reasonable doubt.
76. It follows, in our view, that the standard of proof to be applied in proceedings in the Family Court seeking that a respondent be dealt with for contempt of court is proof beyond reasonable doubt.
Determination
Does the alleged perjury by the respondent constitute contempt?
The majority of the 16 allegations of contempt before the Court relate to alleged acts of perjury by the respondent.
Contempt proceedings before this Court are conducted without the safeguards of a jury trial and a conviction, as outlined in s 112AP, may result in an individual’s committal to prison, or a fine, or both. It follows that the circumstances in which it is appropriate for a Court to exercise its powers under ss 35 and 112AP in order to deal with a finding of perjury are very limited. As outlined by the High Court in Coward v Stapleton (1953) 90 CLR 573 at 579 (“Coward v Stapleton”) “it cannot be too clearly recognized that the remedy for giving answers which are false is normally a prosecution for perjury or false swearing, and not a summary committal for contempt.”
In Keeley v Brooking (1979) 143 CLR 162 at 169-170, referred to by the applicant in his written submissions, the High Court reiterated that ordinarily, false swearing will be dealt with through prosecution for perjury rather than through a conviction for contempt. The High Court also outlined the difficulty of a Court being satisfied, beyond reasonable doubt, of the falsity of evidence provided by a party during court proceedings:
False swearing in a court proceeding may in itself be a contempt of the tribunal before which the proceedings are had. But in the great majority of cases, the proof of the falsity of the evidence beyond all reasonable doubt is not available during the proceedings. All that there appears are contrary assertions of another witness or other witnesses. At times, however, documentary evidence admitted by a party or witness to be accurate and genuine is available to demonstrate the falsity of the oral evidence. If it could be concluded beyond all reasonable doubt that the false swearing was with the actual or inevitable intent or consequence of frustrating or obstructing the proceedings, the party or witness could be dealt with for contempt of the tribunal. But that intent or inevitable consequence would differentiate what I might call mere perjury from contempt. The contempt would lie in the obstruction or frustration of the proceedings actually intended or necessarily consequential.
However, as I have indicated, a case of contempt by false swearing must be relatively rare. In general, such false swearing will result in the party or witness being liable to prosecution for perjury.
Although it was not necessary to determine the issue of whether the alleged perjury constituted contempt, the Full Court of this Court in S & B [1998] FamCA 129 referred to the High Court’s statements in Coward v Stapleton and stated that it would not have an entertained an application for contempt relating to the question of perjury in the circumstances of the case before it:
4.7 …in this case no question can arise about the circumstances in which perjury, at least in the face of the Court, may amount to a contempt of that Court as distinct from being the subject of criminal proceedings in the relevant criminal court. This matter has been discussed on a number of occasions, including by the High Court in Coward v Stapleton (1953) 90 CLR 573 at 578-9: see also Miller, Contempt of Court (1989) 2 ed. at 116-7; and Borrie and Lowe, The Law of Contempt (1996) 3 ed. at 59. The circumstances in which a witness may be punished for contempt by the Court in which he or she gives evidence is confined to a “strictly limited class of cases” as the High Court explained in Coward v Stapleton, supra,. It seems clear here that had the respondent sworn an affidavit in this Court along the lines referred to by him in his letter then, whatever the question of perjury may be, this Court would not entertain an application for contempt, particularly if that involved entering upon a contested hearing of the truth or falsity of the impugned testimony.
The applicant, in his affidavit sworn 12 April 2015, contends that the respondent “knowingly and wilfully” provided false and misleading information to the Family Court, the Local Court, the Federal Magistrates Court (now the Federal Circuit Court), and to various public authorities.
The allegations include that false and misleading evidence was provided by the respondent to the Court regarding the welfare of the children, the applicant’s consumption of alcohol, the applicant’s hours of work, the division of household duties and care of the children between the parties, the circumstances regarding an application for an apprehended violence order made by the respondent against the applicant, a loan agreement alleged by the respondent, and with respect to various other aspects of evidence provided by the respondent in the substantive proceedings between the parties.
In S & L [1998] FamCA 147 (“S & L”) the Full Court dealt with allegations that the respondent swore to facts in her affidavit that she knew to be false and omitted things that she was obliged to disclose. The applicant alleged that these statements constituted perjury and were punishable as a contempt by this Court. The Full Court dismissed the application, finding that the trial judge was “entirely correct” in rejecting the assertion that the respondent’s allegations amounted to contempt. The Court held that the applicant had failed to establish, beyond reasonable doubt, that the statements by the respondent were deliberate falsehoods.
The reluctance of the Court to exercise the contempt power and to impose punishment is readily apparent from S & L. At paragraphs 77- 78, Nicholson CJ, Finn and Moore JJ approved the authority of M v M (1990) FLC, 92-106 (“M v M”) at 77,709, where the Court had said:
…we would emphasise that a considerable body of authority exists to support the view that the power of a court to convict and punish for contempt by summary procedure should be sparingly used and jealously watched. It should be exercised only in rare cases when there is no other remedy to preserve the dignity of the court and protect the public, as it is an inherently despotic and arbitrary power in which the judge often acts as prosecutor, witness, judge and jury. Lord Denning expressed this concept succinctly in Bellow's case when he said: ‘Insults are best treated with disdain, save when they are gross and scandalous’.
The Full Court said that while M v M dealt with an insult, “the general principle expressed there is of wider application”. Their Honours found that even if the trial judge had found that there were some indications that parts of the respondent’s affidavit were false, the trial judge was by no means obliged to exercise the contempt power.
At paragraph 51, the Full Court said, with regard to the allegations of falsified evidence by the applicant:
So far as the alleged false affidavit is concerned, Mr S. appears to have fallen into the difficulty, not uncommon in this Court, of assuming that because he believes in a particular set of facts, those facts are correct and the facts as asserted by any other person are not. It is quite obvious that a trial Judge in hearing applications of this sort on the papers and faced with conflicting issues of fact, is not in any position to form any conclusion as to whether or not those facts are false or otherwise, and it is quite absurd, in my view, to suggest that, either the judge has any duty to do so or, even more absurd, that the judge should take the matter further and uphold a charge of contempt against the deponent.
A conflict in at least some of the evidence provided by each party is inevitable in almost all of the proceedings before this Court. The cases heard and determined by this court almost always contain items of contested fact. Without clear evidence to the contrary, the existence of differing accounts of fact does not lead to the finding that one or both parties has set out to deliberately falsify evidence or mislead the Court.
The allegations of perjury made against the respondent by the applicant relating to evidence given by her in this court fall into that category of cases referred to by the Full Court in S & B. The allegations would require the court “entering upon a contested hearing of the truth or falsity of the impugned testimony”. Further, I refer to the words of the Full Court in S & B, which made it clear that allegations of perjury are best dealt with as “the subject of criminal proceedings in the relevant criminal court”. Clearly circumstances may arise where there is a clear case of perjury, in relation to which there is no issue of fact, where a judge may, upon application being made, deal with such perjury as contempt of court under section 112AP.
In this case I conclude, the allegations of contempt, arising from perjury, do not fall into a category which makes it appropriate for the court to hear and determine.
Can perjury by the respondent’s legal representatives constitute contempt?
Items 8 and 16 of the contempt application allege that the respondent is in contempt of court due to acts of perjury by her legal representatives. Item 8 alleges that the respondent’s legal representative gave false oral evidence to this Court in relation to the events regarding an application that was made by the applicant to change the conditions of an Apprehended Violence Order. Item 16 alleges that the respondent’s legal representatives committed “multiple acts of perjury” by creating, signing and providing to the court false and misleading affidavits, Financial Statements and other documentation.
In dealing with an allegation by the applicant that the respondent committed an act of contempt due to the alleged false statements given by a third party, the Full Court in S & L cited the following comments of the trial judge with approval:
It was not a statement which was made by the applicant. There is no evidence that she knew it was false nor is there evidence which is, in my view, convincing that indeed it was so. In any event, it cannot constitute contempt in relation to the respondent to this application.” (Judgment of Joske J, 24 March 1998 (No.1), p.6)
Despite the allegation by the applicant at item 16 that the respondent’s legal representatives committed perjury “with the direct knowledge of the respondent”, there is no evidence provided by the applicant to substantiate this assertion.
Even if it was established that a legal representative had deliberately mislead a court by misstating a fact, it would only be in the rarest of circumstances where the party being represented by that legal representative could be held culpable for such action, and only then where there was clear evidence that such act of deception perpetrated by the legal representative had been aided and abetted by that party. This is not such a case.
For the reasons alone, items 8 and 16 on the Application must fail.
Can a failure to comply with the Rules constitute contempt?
Chapter 13 of the Rules outlines the provisions regarding the duty of disclosure between parties to family law proceedings.
Rule 13.01 provides that each party has a duty to the Court and to each other party to give full and frank disclosure of all information relevant to the case in a timely manner. A notation in this Rule provides that failure to comply with this duty may include punishment for contempt of court.
Rule 13.04 deals with the duty of disclosure upon parties in financial proceeding and is as follows:
Full and frank disclosure
(1)A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:
(a)the party's earnings, including income that is paid or assigned to another party, person or legal entity;
(b) any vested or contingent interest in property;
(c)any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;
(d)any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;
(e) the party's other financial resources;
(f) any trust:
(i) of which the party is the appointor or trustee;
(ii)of which the party, the party's child, spouse or de facto spouse is an eligible beneficiary as to capital or income;
(iii)of which a corporation is an eligible beneficiary as to capital or income if the party, or the party's child, spouse or de facto spouse is a shareholder or director of the corporation;
(iv)over which the party has any direct or indirect power or control;
(v)of which the party has the direct or indirect power to remove or appoint a trustee;
(vi)of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;
(vii)of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or
(viii)over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party's child, spouse or de facto spouse is a director or shareholder of the corporation;
(g)any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:
(i)in the 12 months immediately before the separation of the parties; or
(ii) since the final separation of the parties; and
(h) liabilities and contingent liabilities.
(2)Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.
(3) In this rule:
"legal entity " means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.
Note: The requirements in this rule are in addition to the requirements in rules 12.02 and 12.05 to exchange certain documents before a conference in a property case.
Rule 13.14(a)(ii) of the Rules provides that a party may be guilty of contempt for not disclosing a document required pursuant to the Rules. Subsections (iii) and (b) provide that the party who has failed to disclose required documents may also be ordered to pay costs and the Court may stay or dismiss all or part of the party’s case.
It is alleged, at Item 12 of the applicant’s contempt application, that:
The respondent acted in a manner consistent with contempt of court, as so described by the rules of the court, by failing to comply with the rules of the court in relation to the disclosure of documents when requested to do so and in doing so acted in a manner that seriously detracts from and challenges the authority of the court and or the need for any party to comply with the rules of the court.
This count provides no proper charge for the respondent to answer. There is no specification as to when a request was made to the respondent to produce any documents. There is no specification of documents sought.
This is an application by the father that the mother be found in Contempt of Court for failure to produce relevant documents. It must be understood that the proceedings in this Court were concluded on 27 June 2014 when Aldridge J made final parenting orders.
At paragraphs 197 and following of his affidavit, the applicant deposed that on 30 January 2015 he wrote to the respondent’s representatives requesting the disclosure of documents pursuant to Rule 13.08 of the Rules.
The applicant stated that the respondent failed to comply with her disclosure obligations and did not provide the documents requested by him despite multiple requests made.
The applicant asserts that the respondent’s refusal to comply with requests to disclose documents constitutes a “flagrant and blatant challenge to the authority of the court” and is “highly contemptuous of court”.
Attached to the applicant’s affidavit is a copy of an email from the applicant dated 30 January 2015 requesting that the respondent provide, within 21 days, all taxation returns since 2009 and all financial and or asset statements made by her to this Court, Legal Aid, Centrelink, the Commonwealth Government, the Government of NSW and the NSW Police. Also annexed is a second email dated 8 March 2015 reiterating this request.
Rule 13.08 does not apply to a contempt application. Division 13.2.2 and in particular Rule 13.18 applies to a contempt application. That Rule provides that for such an application a party seeking production of a document must make an application to the court. Such rule has regard to the circumstance where a respondent may oppose having to produce a document on any ground.
Accordingly, I dismiss item 12 of the application.
In relation to the acts of contempt alleged by the applicant to have taken place in courts other than this Court, I refer to s 35 of the Act, which provides that the Family Court has the power to punish contempts of “its power and authority” (emphasis added). Section 112AP(2) of the Act also provides that “In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court” (emphasis added). In Pannett & Russi (1987) FLC 91-850 his Honour Fogarty J stated at 76,424, in relation to the predecessor of s 112AP(2), that “the significance of the words “of that court” are that the conduct in question must be a contempt of the court hearing the application”. His Honour also observed that “this avoids any suggestion that one court is hearing a proceeding said to constitute a contempt of another court.”
Conclusion
For the reasons stated above, I dismiss the contempt application filed by the applicant its entirety.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 1 September 2015.
Associate:
Date: 1 September 2015
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