Che & Don (No 2)
[2021] FedCFamC1F 213
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Che & Don (No 2) [2021] FedCFamC1F 213
File number(s): CAC 600 of 2021 Judgment of: GILL J Date of judgment: 19 November 2021 Catchwords: FAMILY LAW – CONTEMPT – Standing – Whether all parties have standing to make submissions in relation to contempt proceedings commenced on the Court’s own motion – Consideration of distinction between criminal and civil contempt – Contempt proceedings are criminal in nature – Where contempt proceedings arise within the Court’s civil jurisdiction – Each party entitled to make submissions. Legislation: Family Law Act 1975 (Cth) s 112AP Cases cited: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375
Tate & Tate (2002) FLC 93-107
Witham v Holloway (1995) 183 CLR 525
Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 9 November 2021 Place: Canberra Solicitor for the Applicant: Legal Aid ACT Solicitor for the First Respondent: Litigant in Person Counsel for the Second Respondent: Ms Davis Solicitor for the Second Respondent: Infinity Legal Solicitor for the Third Respondent: AKN & Associates Intervener: Mr Fewster Solicitor for the Independent Children's Lawyer: Mahony Family Lawyers ORDERS
CAC 600 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHE
Applicant
AND: MR DON
First Respondent
MS TRACH
Second Respondent
MS HYUNH
Third Respondent
MARSHAL OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL J
DATE OF ORDER:
19 NOVEMBER 2021
THE COURT ORDERS THAT PENDING FURTHER ORDER:
1.Each of the parties is entitled to be heard on the contempt proceedings against Ms Trach.
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 Che & Don has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
This judgment concerns the issue of who has standing to be heard on the contempt proceedings currently on foot against the second respondent, Ms Trach. Given that the issue was not dealt with in any detail in oral submissions, it will be resolved by orders until further order as to who may be heard on the trial of the matter, a procedure that will permit the issue to be revisited should it be necessary to do so.
The contempt charge occurs in the context that orders are currently in place for X (born in 2020) (“the child”), the child of the first respondent, Mr Don, and the second respondent, Ms Trach, to live with the applicant in the substantive proceedings, the maternal grandmother, Ms Che. Despite those orders the child is not living with the maternal grandmother and his whereabouts are presently undisclosed.
Prior to the laying of the current contempt charge, the maternal grandmother commenced contempt proceedings against the second respondent for contraventions of orders made on 19 April 2021 and 21 May 2021. However, on 8 November 2021, she discontinued those proceedings.
Subsequently, on 9 November 2021, the second respondent was charged with contempt by this Court, and the Marshal of Division 1 of the Federal Circuit and Family Court of Australia was directed to conduct the prosecution of this charge. The charge is in the following terms:
[Ms Trach] you are charged with contempt of this Court in that you contravened order 1 of the orders made by this Court on 13 October 2021 in a manner that involves a flagrant challenge to the authority of the Court, in that you have failed to provide to the Court such information as you hold about the whereabouts of [X], born […] 2020.
The proceedings were adjourned to 24 November 2021 for trial and procedural directions were made for the Marshal to file the evidential material upon which he will rely.
At that stage an issue arose as to who could be heard on the contempt proceedings.
While the Independent Children’s Lawyer and the third respondent, Ms Hyunh (the aunt of the child) indicated that they did not seek to be heard on the contempt proceedings, the first respondent (the partner of Ms Trach) stated he did not think that she should be charged with contempt. However, he did not express a view as to whether he should be heard further than that on the contempt proceedings. Through her lawyer the maternal grandmother expressed the view that she should be heard in relation to the contempt proceedings despite the discontinuance of her own contempt application. She explained this was because of her ongoing interest in the substantive proceedings before the Court.
Thus, the issue currently being dealt with is who has standing to be heard in the contempt proceedings commenced by the Court of its own motion.
WHO HAS STANDING?
The issue of who has a right to be heard in relation to these contempt proceedings requires an understanding of the nature of the proceedings.
The proceedings are governed by s 112AP of the Family Law Act 1975 (Cth). The requirement of the provision that where, as here, the contempt is founded upon the breach of an order is that such breach involve “a flagrant challenge to the authority of the court”.[1] This brings such contempts within the description of criminal contempt from the joint judgment of Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway (“Witham”),[2] as adopted by the Full Court of this Court in Tate & Tate (“Tate”).[3] Their Honours in Witham went on to observe that “all proceedings for contempt ‘must realistically be seen as criminal in nature’. The consequence is that all charges of contempt must be proved beyond reasonable doubt.”[4]
[1] Family Law Act 1975 (Cth) s 112AP(1)(b).
[2] (1995) 183 CLR 525.
[3] (2002) FLC 93-107.
[4] Witham v Holloway (1995) 183 CLR 525, 534 (footnotes omitted).
As was made clear in Tate, although the proceedings do not fall within the description of an offence against the law of the Commonwealth, they are proceedings for an offence arising under Australian law.[5]
[5] Tate & Tate (2002) FLC 93-107, [75] (Ellis and Holden JJ).
However, it was also made clear in Witham and confirmed by French CJ, Kiefel, Bell, Gageler and Keane JJ in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors[6] that proceedings for contempt of court to punish a respondent are a civil process and are not be confused with a criminal trial, the conduct of the contempt proceedings falling within the civil jurisdiction of the court.[7] The Court there accepted the description of contempt proceedings as to protect the due administration of justice, and for purposes of “the vindication of judicial authority” or “coercing obedience in the interests of the individual”.[8]
[6] (2015) 256 CLR 375, 389–390 [42]–[45].
[7] Witham v Holloway (1995) 183 CLR 525, 534, 549.
[8] Witham v Holloway (1995) 183 CLR 525, 534, quoted in Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, 389 [42].
In these proceedings each of the parties is not only intimately interested in the subject matter of the civil litigation between them, but also entitled to call upon the Court’s aid for the enforcement of the Court’s orders.
Unlike the position in a criminal trial where the proceedings are brought by the executive government, it may be observed that the parties to this litigation were at liberty to bring the proceedings themselves in order to “complain that the other party has breached the order of the court”.[9]
[9] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, 389 [44].
These matters mean that the question of standing cannot be resolved as though the proceedings conducted here are a criminal trial, wherein standing is generally confined to the prosecuting authority and the defendant. Each of the parties has sufficient interest to be heard and, subject to further order, will be entitled to address the Court.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 19 November 2021
0
2
0