Cousins & Peake (No 2)
[2022] FedCFamC2F 1660
Federal Circuit and Family Court of Australia
(DIVISION 2)
Cousins & Peake (No 2) [2022] FedCFamC2F 1660
File number(s): MLC 4941 of 2014 Judgment of: JUDGE GLASS Date of judgment: 2 December 2022 Catchwords: FAMILY LAW – CONTEMPT APPLICATIONS – where there is no prima facie case – applications dismissed
FAMILY LAW – COSTS – where the circumstances justify orders for costs in favour of the Respondent and the Independent Children’s Lawyer
Legislation: Family Law Act 1975 (Cth) ss 102NA, 112AP(1)(a), 112AD, 117(1), 117(2), 121, 121(9)
Federal Circuit Court Rules 2001 (Cth) r l5A.l6, 16A.16
Cases cited: DAI & DAA (2005) FLC 93-215
De Roma & De Roma [2013] FamCA 566
Ibbotson & Wincen (1994) FLC 92-496
Kramer & Another & Ward (2017) FLC 93-817
Lenova & Lenova (Costs) [2011] FamCAFC 141
M & M (1990) FLC 92-106
Mallory & Mallory [2020] FamCAFC 62
Medlow & Medlow (2017) FLC 93-796
Peda & Feaster & Anor (2019) FLC 93-890
Re JJT & Ors; ex parte Victoria Legal Aid (1998) 195 CLR 184
Redmond & Redmond & Ors (2013) FLC 93-557
Sahari & Sahari (1976) FLC 90-086
Stradford & Stradford (2019) FLC 93-888
Tate & Tate (2002) FLC 93-107
Witham & Holloway (1995) 183 CLR 525
Zamir & Zamir [2022] FedCFamC1A 193
Division: Division 2 Family Law Number of paragraphs: 40 Date of last submission/s: 28 November 2022 Date of hearing: 28 November 2022 Place: Melbourne Counsel for the Applicant: Ms Wiener Solicitor for the Applicant: Brendan Rothschild Legal Group Counsel for the Respondent: Ms Teicher Solicitor for the Respondent: PFJS Lawyers Counsel for the Independent Children's Lawyer: Mr Heggie Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 4941 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PEAKE
Applicant
AND: MR COUSINS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE GLASS
DATE OF ORDER:
28 November 2022
THE COURT ORDERS THAT:
1.The Applicant’s Contempt Applications filed on 20 December 2018, 3 July 2019 and 1 July 2022, be dismissed.
2.The Applicant pay the Respondent’s costs fixed in the sum of $8,557.50.
3.The Applicant pay the Independent Children’s Lawyer costs fixed in the sum of $3,329.00.
4.Payments referred to in paragraphs 2 and 3 herewith, be stayed for a period of 60 days from the date of these Orders.
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 Cousins & Peake (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
On 28 November 2022, I made Orders dismissing three contempt applications filed by Ms Peake and ordered she pay the costs of Mr Cousins and the Independent Children’s Lawyer. These are my reasons for those determinations.
All parties were represented by Counsel. When the matter was first called, Ms Peake sought to address the Court to assert that her Counsel was only present for the purposes of cross-examination as a result of the application of section 102NA of the Family Law Act 1975 (Cth) (“the Act”). That assertion was then contradicted by her Counsel who indicated that she was instructed to appear in the matter. The matter was stood down a number of times during the day. Ultimately Counsel for Ms Peake made submissions to the Court on her behalf, including written instructions handed to her by Ms Peake during the hearing.
Contempt Applications
Applications for contempt are serious and provide remedies of last resort.[1] Contempt must be proved beyond reasonable doubt.[2] The conduct alleged must constitute “‘an interference with the due administration of justice’ or ‘contumacious’ defiance of an order of the court.”[3]
[1] Redmond & Redmond & ors (2013) FLC 93-557 (“Redmond”) at [44], and the cases there cited.
[2] Witham & Holloway (1995) 183 CLR 525 (“Witham & Holloway”); Tate & Tate (2002) FLC 93-107 per Ellis and Holden JJ at [75]; DAI & DAA (2005) FLC 93-215 at [48].
[3] Redmond at [49].
Pursuant to paragraph 112AP(1)(a) of the Act, a contempt of court that constitutes a contravention of an order under the Act must involve a flagrant challenge to the authority of the Court. The use of that expression “is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s. 112AD.”[4] Contemptuous breaches of court orders are those which “wilfully and flagrantly challenged the Court’s authority”.[5]
[4] Ibbotson & Wincen (1994) FLC 92-496 at 81,162; Medlow & Medlow (2017) FLC 93-796 at [42-3].
[5] Zamir & Zamir [2022] FedCFamC1A 193 at [30] and the cases there cited.
Contempts that do not comprise a contravention of an order are criminal contempts.
Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts.[6]
[6] Witham & Holloway per McHugh J at 538 (footnotes omitted).
The power to convict and punish for criminal contempt should be “sparingly used and jealously watched” and exercised “only in rare cases where there is no other remedy to preserve the dignity of the court and protect the public”.[7]
[7] M & M (1990) FLC 92-106 at 77,709.
Although the three applications prosecuted by Ms Peake were supported by their own affidavits, she relied only on what she described as her consolidated affidavit filed 22 November 2022.
The respondents deny the allegations made against them. Consistent with their submissions, I find there is no prima facie case in relation to any of the allegations.
Application filed 20 December 2018
By that application, Ms Peake alleges as follows:
During the proceedings in the Federal Circuit Court of Australia - Family Law Division Case File MLC4941/2014 and the Application in a Case for Departure from Child Support Assessment (filed 11 November 2014), the Respondent Father had:
1.Repeatedly, knowingly and deliberately made false statements on his sworn Affidavits, court submissions and Financial Statements to mislead this court.
2.Repeatedly, knowingly and deliberately suppressed and/or omitted critical and relevant evidence and facts on his sworn Affidavits, court submissions, Financial Statements and Undertakings to Disclose to mislead this court.
3.Repeatedly, knowingly and deliberately suppressed and/or omitted critical and relevant evidence and facts on his sworn Affidavits, court submissions and Financial Statements to mislead this court.
4.Repeatedly, knowingly and deliberately contravened his obligations for Full and Frank Disclosure on Financial Statements, on sworn Affidavits and submissions and to this court in breach of Rule 13.01, 13.02, 13.03. 13.04 and 13.14 (a)(ii) of the Family Law Rules 2004.
The application does not allege that Mr Cousins has contravened an order under the Act and so the application is taken to allege criminal contempt.
The Court heard and determined Ms Peake’s application for a departure from the administrative assessment of child support. On 9 November 2016, the Court made Orders requiring Mr Cousins to pay for half of the parties’ children’s agreed medical and dental gap expenses and otherwise dismissed Ms Peake’s application.
The gravamen of Ms Peake’s complaint appears to be that Mr Cousins repeatedly deposed to his wife having no income during the period 2015 to 2017, made similar representations to the Court and gave Undertakings in relation to his disclosure. She deposes to subsequently obtaining taxation returns for Mrs Cousins that revealed she earned taxable income of $33,572 and $37,804 in each of the financial years ending 30 June 2016 and 30 June 2017 respectively, including payments from Mr Cousins’ business of $18,500 and $31,250 in each of those years. She also deposes to Mr Cousins giving evidence during a trial in November 2018 to his wife having worked for multiple chiropractors during the period 2015 to 2016.
Ms Peake also alleges that Mr Cousins failed to disclose multiple bank accounts, personal loans and falsely asserted that he had been a ‘stay at home dad’ during the marriage. She deposes to those assertions being inconsistent with other material she has located, including an employment contract from 2008, and his curriculum vitae and LinkedIn profile.
In relation to the Court’s determination, Ms Peake deposes as follows:
Her Honour, despite concluding that [Mr Cousins] had not contributed and maintained our children appropriately, had then made an erroneous discretionary judgement [sic] to dismiss the Application for Departure from Child Support Assessment and cost orders, due to [Mr Cousins]’s alleged deliberate omission/suppression of his true and accurate income and salary and that of his wife, [Mrs Cousins].[8]
[8] Ms Peake’s Affidavit of 22 November 2022, paragraph 53.
Ms Peake did not elucidate how it is that the conduct she complains of has “a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings”.[9]
[9] Witham v Holloway per McHugh J at 538.
Ms Peake’s complaint relates to matters that have now been the subject of judicial determination. If she was dissatisfied with the disclosure then available to her, it was open to her to seek to adjourn the proceedings to make further enquiries and gather further evidence. It was also open to her to challenge Mr Cousins’ evidence. If she considered the decision was erroneous, avenues of appeal were available to her, and indeed apparently unsuccessfully exercised by her. The availability of well-established means by which Ms Peake could have addressed her concerns about Mr Cousins’ disclosure, means that the Court’s authority, performance and dignity is preserved as with those that participated in the proceedings. Any non-disclosure accordingly did not have a tendency to interfere with or undermine those attributes.
Albeit the context relates to a contravention of orders, it has also been observed that:
“[i]t is difficult to envisage a case where failure to comply with orders for disclosure could be said to involve a flagrant challenge to the authority of the Court or where an established failure to fully disclose could be other than a contravention covered by Part XIIIA of the Act and not Part XIIIB.”[10]
So much is consistent with a conclusion that the availability of other remedies for Ms Peake’s complaints renders them incapable of sustaining a finding of contempt.
[10] Stradford & Stradford (2019) FLC 93-888 at [68].
Ms Peake’s allegations do not amount to contempt. She has not established a prima facie case.
Application filed 3 July 2019
By this application, Ms Peake alleges that on 17 June 2019, Mrs Cousins failed to comply with “Rule 15A.16. Federal Circuit Court Rules 2001. Failure to comply with subpoena”.
At Ms Peake’s request, a subpoena was issued to Mrs Cousins on 5 February 2019. Mrs Cousins objected to that subpoena, which objection was resolved by Orders made on 24 April 2019, providing for Mrs Cousins to produce to the Court particularised documents.
The extent of Ms Peake’s evidence in support of the allegations is that “Mrs Cousins failed to comply with the subpoena”.[11] How that failure amounts to contemptuous conduct is not articulated by Ms Peake. Other remedies were available to her. The very rule she refers to provides for a warrant to issue for a failure to comply with a subpoena. No evidence is adduced of any efforts Ms Peake made to seek to enforce compliance with the subpoena.
[11] Ms Peake’s Affidavit filed 22 November 2022 paragraph 76.
Whilst it is true that the discretion to issue a warrant under Rule 15A.16 “does not affect any power of the Court to punish a person for failure to comply with a subpoena”[12], so much does not establish that Mrs Cousins’ purported failure to comply with the subpoena amounts to a contempt. The evidence does not establish a prima facie case for contempt of court.
[12] Federal Circuit Court Rules 2001 (Cth), subrule 15A.16(2).
I also note that, contrary to Ms Peake’s evidence, Mrs Cousins did in fact produce documents pursuant to the subpoena filed on 5 February 2019.
Application filed 1 July 2022
By this application, Ms Peake alleges five contempts by Mr Cousins.
By the first allegation, Ms Peake alleges that Mr Cousins, on 29 May 2022, 5 June 2022, 12 June 2022, 19 June 2022, 26 June 2022 and 3 July 2022, “knowingly defied Order 9(a) of the Federal Circuit Court and Family Court of Australia Court Orders 23 May 2022 of the Senior Judicial Registrar O to restrict the Applicant Mother to time to be spent with the child, X.”[13]
[13] Application filed 1 July 2022, page 4.
By the second allegation, Ms Peake alleges that Mr Cousins, on 26 June 2022, “knowingly defied Order 10(a) of the Federal Circuit Court and Family Court of Australia Court Orders 23 May 2022 of the Senior Judicial Registrar O to collect the child, Y from the Applicant Mother pursuant to abovementioned orders.” [14]
[14] Application filed 1 July 2022, page 4.
By the third allegation, Ms Peake alleges that Mr Cousins, on 18 February 2022, “knowingly defied Order 6(a) of the Federal Circuit Court and Family Court of Australia Court Orders 19 December 2019 to restrict the Applicant, Mother’s time to be spent with the children, X and Y.” [15]
[15] Application filed 1 July 2022, page 5.
By the fourth allegation, Ms Peake alleges that Mr Cousins, on 20 June 2022, “knowingly defied Order 14 of the Federal Circuit Court and Family Court of Australia Court Orders 23 May 2022 of the Senior Judicial Registrar O to make file and serve an Affidavit in support of the child, Y’s secondary schooling.” [16]
[16] Application filed 1 July 2022, page 5.
Apparently in support of the allegations, Ms Peake deposes:
Despite my multiple emails, [Mr Cousins] refused to comply with orders of this Honourable Court. He did not comply for court orders of 19 January 2022, 25 February 2022 and 23 May 2022.[17]
[17] Affidavit of Ms Peake filed 22 November 2022, paragraph 118.
That evidence does not support a conclusion that any alleged contravention of Orders by Mr Cousins involves a flagrant challenge to the authority of the Court. Ms Peake has not established a prima facie case in relation to the first four allegations.
By the fifth count, Ms Peake alleges that on 10 February 2022 and 1 June 2022, Mr Cousins “knowingly published and disseminated to the public and/or section of the public, strictly confidential and/or privileged legal documents and correspondences, lists of Family Law proceedings and Applications, Family Reports and Psychiatric Reports procured during family law proceedings and the identifications of parties to family law proceedings and the presiding Judges and Honourable Justices in contravention of s.121 of the Family Law Act 1975.” [18]
[18] Application filed 1 July 2022, page 5.
Whilst Ms Peake referred to her affidavit which particularised alleged contraventions of section 121 of the Act, only one of those references relates to the alleged “publications” referred to in her application. Her relevant evidence is as follows:
On or around 10 June 2022, [[Mr Cousins]] (by way of Victoria Police) filed his Further and Better Particulars in the Magistrate Courts for his Application to vary the final FIVO filed on 11 February 2022, with publication and dissemination of confidential family law documents including but not limited to, mentions of Justices’ names, privileged lawyers’ correspondence, listing of family law proceedings and family reports, in alleged breach of s121 of the Family Law Act 1975.[19]
[[Mr Cousins’]] Statements provided to Victoria Police on 10 February 2022 and for my arrest on 11 November 2021, also contained lies, false statements, swearing and alleged breach of s121 of the Family Law Act 1975.[20]
[19] Affidavit of Ms Peake filed 22 November 2022, paragraph 116.
[20] Affidavit of Ms Peake filed 22 November 2022, paragraph 117.
The evidence is largely by way of conclusory statements unsupported by facts that would enable the Court to be satisfied of the conclusion.[21] Ms Peake did not elucidate how the alleged conduct interferes or undermines the authority, performance or dignity of the courts of justice or participants in their proceedings. I find no basis to conclude that it does. There is no prima facie case of contempt.
[21] Kramer & Another & Ward (2017) FLC 93-817 at [10].
Further, it is by no means clear that the purported publication or dissemination is “to the public or to a section of the public” as is prohibited by section 121 of the Act, given the dissemination was to Victoria Police and the Magistrates’ Court of Victoria. The conduct may also fall within exceptions prescribed by subsection 121(9) of the Act.
I also note that Ms Peake gives no evidence of whether she has made any complaints to relevant investigating or prosecuting authorities in relation to that which she says amounts to a criminal offence. How this application might interact with any criminal proceedings is wholly unaddressed by her.[22]
[22] Sahari & Sahari (1976) FLC 90-086 at 75,407 to 75,410.
Costs
Generally, each party is to bear their own costs of proceedings under the Act.[23] Nevertheless, if there are circumstances justifying doing so, the Court retains a discretion to make such order as to costs as it considers just, having regard to the matters prescribed by subsection 117(2A) of the Act.[24]
[23] Family Law Act 1975 (Cth) ss 117(1).
[24] Family Law Act 1975 (Cth) ss 117(2).
Ms Peake has been wholly unsuccessful in the proceedings. She resists the costs applications on the basis of her financial circumstances, namely that she is a student and does not have an independent income. It is well established that impecuniosity is not an unconditional shield to the making of an order for costs.[25] Otherwise, parties could litigate with impunity and with immunity against an order for costs.[26]
[25] Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Mallory & Mallory [2020] FamCAFC 62 at [9].
[26] Peda & Feaster & Anor (2019) FLC 93-890 at [57], quoting Cooper & Oakley (No 2) [2012] FamCAFC 187 at [14].
Mr Cousins has been put to the expense of defending himself in proceedings that seek sanctions against him and his wife. Ms Peake’s pursuit of these unmeritorious applications has delayed the determination of outstanding applications for parenting orders. Her complete lack of success justifies an order for costs against her, regardless of what she says are her poor financial circumstances.
Whilst subsection 117(1) does not create the starting point for an application for costs by an Independent Children’s Lawyer,[27] I clearly have the power to make an order in her favour. Ms Peake resisted the application for the same reasons as Mr Cousins’ application. The Independent Children’s Lawyer has been put to the expense of participating in proceedings that were unsuccessful and should not have been prosecuted. I consider the circumstances justify an order for costs in favour of the Independent Children’s Lawyer.
[27] De Roma & De Roma [2013] FamCA 566 at [12].
Ms Peake made no submissions with respect to the quantum of costs sought. In the case of Mr Cousins, they are fixed at scale, and in the case of the Independent Children’s Lawyer, at a sum less than scale, being the actual costs incurred. Given costs are intended to be a partial indemnity for costs actually incurred,[28] I am not satisfied it is open to fix the Independent Children’s Lawyer’s costs at an amount greater than those actually incurred.
[28] Re JJT & Ors; ex parte Victoria Legal Aid (1998) 195 CLR 184 per Hayne J at 219.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 2 December 2022
6
0