Bhagat & Sandhu

[2023] FedCFamC1F 52

Federal Circuit and Family Court of Australia

(DIVISION 1)

Bhagat & Sandhu [2023] FedCFamC1F 52

File number:

SYC 806 of 2020

Judgment of:

REES J

Date of judgment:

10 February 2023

Catchwords:

FAMILY LAW – Contempt – Where the applicant makes 46 counts – Where there is no evidence upon which the applicant relies in relation to each count of contempt – Not possible to formulate charges. Application summarily dismissed – Costs.

Legislation:

Family Law Act 1975 (Cth) s 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.09

Division:

Division 1 First Instance

Number of paragraphs:

19

Date of hearing:

10 February 2023

Place:

Sydney

Applicant:

Litigant in Person

Solicitor for the Respondent:

Mr Tesoriero, Sarah Bevan Family Lawyers

Independent Children's Lawyer:

Kathryn Renshall Lawyers (Submitting Notice filed)

ORDERS

SYC 806 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BHAGAT

Applicant

AND:

MS SANDHU

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	REES J
DATE OF ORDER:	10 FEBRUARY 2023

THE COURT ORDERS:

1.That the Application – Contempt filed on 11 November 2022 be dismissed.

2.That by 4.00 pm on 24 February 2023, the respondent file and serve any submission upon which she relies in relation to the application for costs including an estimate of the respondent’s costs in relation to the contempt application.

3.That by 4.00 pm on 10 March 2023, the applicant file and serve any submissions upon which he seeks to rely in relation to costs.

4.That the application for costs will be determined in chambers without further appearance.

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 the pseudonym Bhagat & Sandhu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

REES J:

1. Before the Court is an Application – Contempt filed by Mr Bhagat (“the applicant”) on 11 November 2022. The named respondent to the application is Ms Sandhu (“the respondent”).

2. The applicant and the respondent are parties in proceedings relating to the parenting of their children and the division of their property. Those proceedings have not yet been heard.

3. The application alleges that the respondent should be convicted of numerous counts pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”) which provides:

   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.

4. The Act provides that, where a person is found to be in contempt, that person can be punished by fine, imprisonment or placed on a bond.

5. In 46 separate complaints, the applicant seeks orders variously against the respondent; the respondent and her solicitor; the respondent, her solicitor and a psychologist, Ms B and the respondent with the help of her boyfriends (named).

6. The application is supported by an affidavit of the applicant sworn on 1 November 2022 which makes no attempt to set out the evidence upon which the applicant relies in relation to each count of contempt.

7. The respondent asks the Court to summarily dismiss the application. For the reasons set out below the application will be dismissed.

8. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provide the mechanism for summary dismissal in r 10.09:

   (1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

   (a)       the court has no jurisdiction; or

   (b)       the other party has no legal capacity to apply for the orders sought; or

   (c)       it is frivolous, vexatious or an abuse of process; or

   (d)       there is no reasonable likelihood of success.

9. I will deal firstly with those counts which allege contempt by the respondent jointly with other persons.

10. There is no evidence that any of the persons alleged to be in contempt, other than the wife, have been served with the application or, other than the wife’s solicitor, are aware of the application or the allegations made against them.

11. Because the nature of the proceedings is quasi-criminal, it is necessary that each charge sets out with precision what is alleged to have been done by each alleged contemnor.

12. No attempt has been made by the applicant to specify the individual actions of each alleged contemnor in relation to each count. For that reason alone, counts 1 to 8; 10; 13 to 19; 21; 23 to 24; 27; 35; and 43 must fail.

13. The remaining 24 charges name the respondent as the alleged contemnor.

14. Charges 9; 12; 22 and 25 assert that the wife has failed to comply with various procedural and interlocutory orders. I am unable to find, in the affidavit of the applicant, any evidence in support of those assertions. Even if it were established that the respondent had failed to comply with those orders, the evidence would need to establish that her failure was “a flagrant challenge to the authority of the court”.

15. In relation to the remaining charges against the respondent, I am unable to find any evidence in the affidavit of the applicant directed to specific allegations.

16. Further, in relation to each count, I am unable to formulate a charge such that the respondent can be informed, as is required by the rules, of the allegations against her. I do not propose to set out here each count. It is sufficient, by way of illustration,  to set out the terms of count 11 which is the first count against the respondent alone:

    Description: Paragraph – 42 and 43 of the respondent wife’s affidavit filed on 26 May 2020, she asserted that she has been pushed on the floor and her lower body has been hurt. In contrary these assertions, the wife made an inconsistent submission during her interview on 02-June-2022 at […] with [Dr C] saying – “[Ms Sandhu] referred to “historical” abuse allegations from approximately 2015. She confirmed that there was an ADVO taken out for her protection on 2020, which has since expired. It was not clear from discussions the substance of the ADVO.”, which formulates another clear evidence of contempt of court to mislead the Judges and waste courts and NSW Police time and Resources.

    (As per the original)

17. The remaining counts are similarly phrased.

18. The application has no reasonable prospects of success and will be dismissed.

19. The respondent seeks costs of the application. Directions will be made for each party to file written submissions in relation to costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       10 February 2023