FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dabiri & Khadem [2023] FedCFamC1F 451
File number(s): BRC 5590 of 2018 Judgment of: HOWARD J Date of judgment: 9 May 2023 Catchwords: FAMILY LAW – CONTEMPT – Preliminary application by the Husband – Where the wife seeks to proceed with an Application for Contempt in respect of nineteen charges – Eight of those nineteen charges formed part of previous Contempt proceedings filed by the wife – Where the earlier Contempt proceedings were withdrawn by the wife in March 2021 – Abuse of process – The filing of new Contempt proceedings in respect of eight charges that had previously been withdrawn amounts to an abuse of process – Where the Court ordered those eight charges of Contempt be dismissed – Where the remaining charges of Contempt are yet to be determined. Legislation: Evidence Act1995 (Cth) s 141
Family Law Act 1975 (Cth) s 112AP
Cases cited: Jago v The District Court of New South Wales (1989) 168 CLR 23
Moti v The Queen (2011) 245 CLR 456
R v Carroll (2002) 213 CLR 635
R v Jell; ex parte Attorney-General [1991] 1 Qd R 48
Rogers v The Queen (1994) 181 CLR 251
Tate & Tate (2002) FLC 93-107
Williams v Spautz (1992) 174 CLR 509
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 9 May 2023 Place: Brisbane Counsel for the Applicant: Mr McGregor Solicitor for the Applicant: Miller Harris Lawyers Counsel for the Respondent: Mr Seewald Solicitor for the Respondent: Sharma Lawyers ORDERS
BRC 5590 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DABIRI
Applicant
AND: MR KHADEM
Respondent
order made by:
HOWARD J
DATE OF ORDER:
9 MAY 2023
THE COURT ORDERS THAT:
1.The following charges of Contempt contained in the Amended Application for Contempt filed 28 April 2023 are dismissed for abuse of process: namely, the charges for Contempt contained in paragraphs 17, 18, 19, 20, 23, 25, 26 and 28.
2.That the remaining charges for Contempt contained in the Amended Application for Contempt filed 28 April 2023 (namely those charges contained in paragraphs 1, 24, 34, 35, 36, 37, 38, 39, 40, 41 and 42) are adjourned for further hearing on 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…
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CaseChat Overview and Summary
The court examined the principles of abuse of process and considered whether the respondent's actions were oppressive or an abuse of the court's process. The court found that the significant delay between the two sets of proceedings, coupled with the fact that the respondent continued to pursue the same allegations despite the first set being dismissed, amounted to an abuse of process. The court emphasised the importance of protecting the court's ability to function as a court of law and ensuring that its processes are used fairly by both state and citizen alike.
In conclusion, the court found that the respondent's actions did amount to an abuse of process. The court did not consider it necessary to determine whether an issue estoppel arose or whether the doctrine of issue estoppel was applicable. The court also did not consider it necessary to consider whether res judicata was available as a plea. The court's decision was based on the principles of abuse of process and the importance of protecting the court's ability to function as a court of law. The final orders of the court are not specified in the text.
Orders
Orders of the court
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Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
To my mind, it would not have mattered whether Judge Middleton made an order dismissing that Application for Contempt. The fact that he did so makes it even more apparent, - and more compelling that what has occurred since (in relation to pursuing the same eight allegations) does amount to an abuse of process. I do not consider it is necessary to determine whether an issue estoppel arose or whether the doctrine of issue estoppel is even applicable here. I do not consider it is necessary to consider whether res judicata is available as a plea. It seems to me that what has occurred –does amount to an abuse of process. As Gleeson CJ and Hayne J said in the decision in R v Carroll at [47]:“47.The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined.” It seems to me that there are other aspects that lend weight to my conclusion that it is an abuse of process. The fact that fully two years elapsed between the filing of the first set of proceedings for Contempt and the second set of proceedings for Contempt is a factor I have taken into account. That is, in the context of this kind of proceeding, it is a significant delay. What it effectively means is in respect of those eight allegations, if they were allowed to proceed, the respondent would have hanging over his head the possibility of imprisonment for fully two years after the date that the first set of proceedings came to an end. As Gleeson CJ and Hayne J said earlier at paragraphs [21] and [22] in R vCarroll:“21.A criminal trial is an accusatorial process in which the power of the state is deployed against an individual accused of crime. Many of the rules that have been developed for the conduct of criminal trials therefore reflect two obvious propositions, that the power and resources of the state as prosecutor are much greater than those of the individual accused, and that the consequences of conviction are very serious...22.Many aspects of the rules which are lumped together under the title “double jeopardy” find their origins not so much in the considerations we have just mentioned as in the recognition of two other no less obvious facts. Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression. Further, finality is an important aspect of any system of justice…” Obviously it is not the State prosecuting the respondent in this case – but it makes no difference to the principle stated. In Williams v Spautz Mason CJ and Dawson, Toohey and McHugh JJ referred to two important reasons for the existence of the doctrine (that is, of abuse of process). Their Honours said at page 520:“As Lord Scarman said in Reg. v. Sang, every court is "in duty bound to protect itself" against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J. referred to them in Moevao v. Department of Labour in a passage which Mason CJ. Quoted in Jago. The first is that the public interest in the administration of justice requires that the Court protect its ability to function as a Court of law by ensuring that its processes are used fairly by state and citizen alike. The second is that unless the Court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the Court’s processes may lend themselves to oppression and injustice.”(Footnotes omitted)