Bestari & Henley (No 4)
[2023] FedCFamC1F 726
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bestari & Henley (No 4) [2023] FedCFamC1F 726
File number(s): CAC 2301 of 2021 Judgment of: GILL J Date of judgment: 23 August 2023 Catchwords: FAMILY LAW – CONTEMPT – Anti-suit injunction – Whether the husband was in contempt of court for continuing family law proceedings in Country B in contradiction of an anti-suit injunction – Where the wife has made no application to have the husband dealt with contempt – Direction that Principal Registrar make application to deal with husband for contempt.
FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal on the basis of apprehended bias – Where father is directed to file and serve submission in respect of such.Legislation: Family Law Act 1975 (Cth) - s 112AP
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) - r 11.71
Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 21-23 August 2023 Place: Canberra Counsel for the Applicant: Mr Hedges, SC Solicitor for the Applicant: Hosking & Gosling Legal Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Delaney Lawyers ORDERS
CAC 2301 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BESTARI
Applicant
AND: MR HENLEY
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
23 AUGUST 2023
THE COURT ORDERS THAT:
1.I direct that the Principal Registrar, or such Registrar as nominated in writing by him, make an application for the husband to be dealt with for contempt in relation to contravention of the orders of 8 December 2022.
2.Noting that an application on the grounds of there being circumstances that raise a reasonable apprehension of bias on my part that I should recuse myself from the further hearing of any matters in relation to this matter, it is directed that the husband file and serve written submissions in respect of that by 4 pm on 31 August 2023.
3.The proceedings are otherwise adjourned to a date to be fixed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J
Orders were made on 8 December 2022 in the following terms:
The husband is hereby restrained, by way of injunction, from taking any further steps and from doing any act or thing or causing any third-party agent, servant or otherwise from doing any act or thing to commence and/or continue to prosecute proceedings in [Country B] by way of suit or other claim for relief with respect to:
(a) [X] born […] 2014; and
(b) Any property of the parties to these proceedings.
By his trial affidavit filed in these proceedings the husband contended at [223]:[1]
Pursuant to Order 2 of the Orders dated 8 December 2022, I was restrained by way of injunction from participating in the [Country B] proceedings. Pursuant to Order 3 of the orders dated 8 December 2022, [Ms Bestari] was directed to withdraw the appeal and to submit evidence of same to my solicitors by Thursday, 5 January 2023.
[1] Husband’s affidavit filed 11 August 2023.
By [22] of that same affidavit the husband contended:
On 9 January 2023, I caused my [Country B] solicitors to seek a review of the appeal decision (“the cassation proceedings”) by submitting a Cassation Memorandum to the Supreme Court of [Country B] (“the Cassation Memorandum”). The Cassation Memorandum was served on [Ms Bestari’s Country B] solicitors by way of Minutes of Notification and Submission of Cassation Memorandum (“Minutes of Notification”). Subsequently, I have caused my solicitors to obtain a translation of the Cassation Memorandum using Google Translate (“the translation of the Cassation Memorandum”). Exhibited hereto at Tab 3. of Exhibit [MH3], being page(s) 23 to 39 is a copy of the translation of the Cassation Memorandum.
By [224] the affidavit he contended:
It is and has always been my belief that [X] should return to live in [Country B], although I do not seek a relocation Order in these proceedings. Similarly, I have always held the belief that, upon the conclusion of these proceedings, [Ms Bestari] will return to live in [Country B] with [X]. I considered there was a risk that if the appeal decision remained unchallenged, [Ms Bestari] would fail to facilitate any time between [X] and me if they returned to [Country B]. I brought the cassation proceedings on the understanding that, if I was successful in the verdict of the District Court of [City G] was reinstated, that would ensure that [Ms Bestari] could not withhold [X] if they ever return to live in [Country B]. I was also advised by my lawyers to continue the Appeal process that [Ms Bestari] commenced.
These matters are together suggestive of the contravention of an order of this court involving a flagrant challenge to the authority of the court as described at s 112AP of the Family Law Act 1975 (Cth), that is a contempt of the court.
There being no application made by the wife to have the husband dealt with for contempt of the order a question arises as to whether or not I should direct an officer of the court or the Marshal to make such an application pursuant to rule 11.71 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
I have given the husband the opportunity to be heard on whether I take that step. He has submitted that I should not and advances four reasons. The first is that he asserts that the wife has also not complied with her obligation to disclose regarding the Country B proceedings. Secondly, he contends that the parallel obligation on the wife cast by those orders being the withdrawal of the appeal before the City G High Court was not complied with, noting apparently the appeal was granted giving the wife custody of X prior to the delivery of judgement on 8 December 2022. Thirdly, the parties have now settled the parenting proceedings, that the orders previously made by me were in part designed to protect and that, should the husband be prosecuted for contempt both he and the wife are exposed to potential contempt proceedings, being a matter that is not conducive to co-parenting by the parties. Fourthly, he contends that contempt proceedings will prolong the proceedings, particularly in circumstances where the parenting matters have now been finalised.
As to those matters, firstly, if the wife has failed to disclose court documents in Country B, that does not, at face value, appear to be a matter bearing, at this stage, on the potential culpability of the husband. Secondly, it may be accepted that the wife’s success on appeal changed the underlying Country B position from the husband having custody as pursuant to the orders of the District Court of City G to the wife having custody in circumstances where ultimately it is a matter for this Court, given my previous determination of forum and now resolution of the matter by final orders. Thirdly, it may be accepted that the settlement of parenting proceedings here resolves X’s status as between the parties, although it does not resolve how it is that he might be treated in Country B. Fourthly, prolonging the proceedings and exposing both of the parties to potential contempt proceedings may be accepted to have negative consequences upon them both, in particular for cooperative parenting.
However, accepting that an order to direct that an application be made is discretionary, when seen in the light of the commencement of the appeal proceedings in the Supreme Court of Country B in apparent direct defiance of the anti-suit injunction, proceedings that apparently remain on foot at present, as this hearing is being conducted, the above matters identified by the husband do not outweigh the importance of conducting proceedings in vindication of the court’s authority. It may well be the case that the husband will point to circumstances that undermine the notion that his conduct was in flagrant disregard of the authority of the court. That will be a matter for the hearing of an application grounded in the circumstances as set out above that surround the commencement of his proceedings in the Supreme Court of Country B.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 24 August 2023
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