Dabiri & Khadem
[2023] FedCFamC1F 451
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charges formed part of previous Contempt proceedings filed by the wife – Where the earlier Contempt proceedings were withdrawn by the wife in March 2021 – Abuse of process – The filing of new Contempt proceedings in respect of eight charges that had previously been withdrawn amounts to an abuse of process – Where the Court ordered those eight charges of Contempt be dismissed – Where the remaining charges of Contempt are yet to be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
R v YL [2004] ACTSC 115
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 judgment by this Court under the pseudonym Dabiri & Khadem has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 9 May 2023 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matters before the Court today are Contempt proceedings brought by the wife. An Amended Application for Contempt was filed on 28 April 2023. The Application for Contempt, certainly in this current iteration, was first filed in September 2022. The wife seeks to proceed with the following charges contained in the Amended Application for Contempt, namely, paragraphs 1, 17, 18, 19, 20, 23, 24, 25, 26, 28, 34, 35, 36, 37, 38, 39, 40, 41 and 42. Those charges read as follows:
“1. In breach of order 2 of 26 September 2018 made by his Honour Judge Jarrett as he then was, by 26 October 2018 or any date thereafter, the Respondent failed to file and serve an affidavit of his mother in respect of the particulars of the asserted loan between the respondent and the respondent's mother.
…
17. In breach of order 2(d) of 11 July 2019 made by his Honour Judge Middleton, by 8 August 2019 or any date thereafter, the Respondent failed to provide to the wife NAATI translated and certified bank statements for term deposit for his account number […00] for the period between 1 March 2017 to June 2019.
18. In breach of order 2(d) of 11 July 2019 made by his Honour Judge Middleton, by 8 August 2019 or any date thereafter, the Respondent failed to provide to the wife NAATI translated and certified bank statements for term deposit for his account number […09] for the period between 1 March 2017 to June 2019.
19.In breach of order 2(d) of 11 July 2019 made by his Honour Judge Middleton, by 8 August 2019 or any date thereafter, the Respondent failed to provide to the wife NAATI translated and certified bank statements for term deposit for his account number […01] for the period between 1 March 2017 to June 2019.
20.In breach of order 2(g) of 11 July 2019 made by his Honour Judge Middleton, by 8 August 2019 or any date thereafter, the Respondent failed to provide to the wife a copy of the ANZ bank statements for accounts held in his name.
…
23.In breach of order 2(g) of 11 July 2019 made by his Honour Judge Middleton, by 8 August 2019 or any date thereafter, the Respondent failed to provide to the wife NAATI translated and certified bank statements for accounts held in his sole name in [Country E].
24.In breach of order 2(j) of 11 July 2019 made by his Honour Judge Middleton, by 8 August 2019 or any date thereafter, the Respondent failed to provide the claim filed in [Country E] referred to at paragraph [13] of the affidavit under the hand of [Mr F] filed 24 May 2019.
25.In breach of order 2(k) of 11 July 2019 made by his Honour Judge Middleton. by 8 August 2019 or any date thereafter, the Respondent failed to provide the documents evidencing the money transfers equivalent to $500,000 purportedly transferred to the Respondent Husband from [Country E] to Australia detailed at paragraph [9] of the affidavit under the hand of [Mr F] filed 24 May 2019.
26.In breach of order 2(I) of 11 July 2019 made by his Honour Judge Middleton, by 8 August 2019 or any date thereafter, the Respondent failed to provide a copy of the contract of sale for both of the properties sold in 2009 as referred to at paragraphs [6] of the affidavit under the hand of [Mr F] filed 24 May 2019.
…
28.In breach of order 1 of 3 August 2020 made by his Honour Judge Middleton, the Respondent has failed to do all things necessary and attend any places necessary and required within Australia and sign any documents necessary for the divorce order dated 15 January 2020 to be registered.
…
34.In breach of order 2 of 3 February 2022 made by [a Senior Judicial Registrar], by 17 February 2022 or any date thereafter, the Respondent failed to file an affidavit setting out his reasons for failure to comply with Order 1(c) made on 3 February 2022.
35.In breach of order 5 of 11 November 2021 made by [a Judicial Registrar] , by 18 November 2021 or any date thereafter, the Respondent failed to provide to the wife the original documents he asserts he located of the wife's alleged bank accounts and real property title deeds in [Country E], as referred to at paragraphs 102 – 105 of his affidavit filed 21 July 2021, namely a copy of Long Term Investment Savings Certificate in the name of [Ms Dabiri] together with a certified translation from 2016, confirming a balance of [Country E currency] 25,000,000,000.
36.In breach of order 5 of 11 November 2021 made by [a Judicial Registrar] , by 18 November 2021 or any date thereafter, the Respondent failed to provide to the wife the original documents he asserts he located of the wife's alleged bank accounts and real property title deeds in [Country E], as referred to at paragraphs 102 – 105 of his affidavit filed 21 July 2021, namely a copy of [Ms Dabiri's] [K Bank] account statement from 2016 showing a balance of US263,649.38.
37.In breach of order 5 of 11 November 2021 made by [a Judicial Registrar], by 18 November 2021 or any date thereafter, the Respondent failed to provide to the wife the original documents he asserts he located of the wife's alleged bank accounts and real property title deeds in [Country E], as referred to at paragraphs 102 – 105 of his affidavit filed 21 July 2021, namely documents pertaining to property at [G Street], [City D].
38.In breach of order 5 of 11 November 2021 made by [a Judicial Registrar] , by 18 November 2021 or any date thereafter, the Respondent failed to provide to the wife the original documents he asserts he located of the wife's alleged bank accounts and real property title deeds in [Country E], as referred to at paragraphs 102 - 105 of his affidavit filed 21 July 2021, namely a title certificate with the date of registration being […] 2017 and situated at [H Street,], [City D,] [Country E] valued at [Country E currency] 58,000,000,000.
39.In breach of order 7 of 11 November 2021 made by [a Judicial Registrar] , by 1 December 2021 or any date thereafter, the Respondent failed to file and serve an affidavit providing evidence of all attempts he has made to comply and providing any further information he has as to his ability to comply in the future.
40.In breach of order 1(f) of 6 August 2021 made by her Honour Judge Willis and varied on 3 February 2022 by [a Senior Judicial Registrar], on l March 2022 the Respondent failed to attend all places, and sign any and all documents, and do all things and acts necessary in compliance with the orders namely by sending an email to the jointly appointed [Country E] Lawyer, [L Lawyers], and making threats not to use his documentations for the purpose of carry out searches in [Country E].
41.In breach of order 1(f) of 6 August 2021 made by her Honour Judge Willis and varied on 3 February 2022 by [a Senior Judicial Registrar], by 30 August 2022 being 14 days after the request made by the jointly appointed [Country E] Lawyer or any date thereafter, the Respondent has failed to attend all places, and sign any and all documents, and do all things and acts necessary in compliance with the orders namely, refuse to give relevant and necessary Authority to the parties jointly appointed [Country E] lawyer, [Ms M].
42.In breach of order 4 of 6 August 2021 made by her Honour Judge Willis and varied on 3 February 2022 by [a Senior Judicial Registrar], by 5 March 2022 or any date thereafter, the Respondent has failed to provide to the Applicant the Original Title Deed, or in the alternative, the Original Certified Copy of the Title Deed verified by the [Country E Foreign Affairs] and Australian Embassy, or in the alternative, the Original Certified Copy of the Transfer documents confirming the transfer of Title from the Respondent's mother into the Respondent's name verified by the [Country E Foreign Affairs] and Australian Embassy for the property with the following title particular:
i. Date: […] 2010;
ii. Date of registration: […] 2010;
ii. Registration number […];
iv. Serial Number: […];
v. Sub-plot no: […];
vi. Main Plot no: […]:
vii. Plot no: […];
viii. Address: [J Street], [City D], [Country E].”
The preliminary application brought by the husband is to the following effect. It is said that no fewer than eight of the charges of Contempt alleged now by the wife against the husband were previously comprised within an earlier Application for Contempt filed by the wife. That earlier Application for Contempt had been filed by the wife on 23 November 2020.
Proceedings for Contempt are extremely serious. The possible consequences for a respondent in these circumstances could not be more serious. I note s 112AP(4) of the Family Law Act 1975 (Cth) states that:
“(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.”
I note the decision of Tate & Tate (2002) FLC 93-107 (“Tate”), where it was said that proceedings of this kind in this jurisdiction are criminal proceedings (as defined in the Evidence Act 1995 (Cth)), and the proper standard of proof is – beyond reasonable doubt. Section 141(1) of the Evidence Act1995 (Cth) is therefore the applicable law concerning the standard of proof.[1]
[1] Note Tate & Tate (2002) FLC 93-107 at [63].
What occurred following the filing of the first set of Contempt proceedings in November 2020 is as follows – on 3 March 2021 the parties appeared in Court (by telephone link) before Judge Middleton sitting as a Judge of the Federal Circuit Court of Australia (as the Federal Circuit and Family Court of Australia (Division 2) was then known). Mr N of counsel appeared on behalf of the husband. Ms C, solicitor, appeared on behalf of the applicant wife. The wife had on foot the Contempt proceedings to which I earlier referred, the application filed 23 November 2020. The husband had on foot an Application in a Case seeking an order that the primary Judge recuse himself.
A transcript is before me today of the proceedings that took place on 3 March 2021. On that occasion, the wife withdrew the Contempt Application. The Judge stated that (page 5 of the transcript) the trial would be before a Judge other than himself. Mr N, on behalf of the husband, withdrew the application for recusal. On page 3 of the transcript, between lines 41 and 47, the Judge, amongst other things, said:
“I will make an order dismissing both the contempt application and the application in a case, and I will vacate the hearing date of 14 May.”
Earlier on that page, at about lines 20 to 22, his Honour spoke of the withdrawal of both the Application in a Case and the Contempt Application, and indeed, around line 6, his Honour asked the solicitor for the wife whether she wished to withdraw the contempt application, and that was answered in the affirmative by the solicitor for the wife.
Judge Middleton issued orders. Those orders are dated the same day, 3 March 2021. The matter was set down for a trial before a Judge other than Judge Middleton, to commence in August 2021, some five months after the date of that particular Court appearance. In addition to trial directions being made, his Honour made the following orders at paragraphs 8, 9, 10 and 11. Those orders, orders 8, 9, 10, 11, read as follows:
“8. That the Application in a Case filed 3 March 2021 be dismissed.
9. That the Application in a Case filed 30 November 2020 be dismissed.
10. That the Contempt application filed 23 November 2020 be dismissed.
11. That the costs for today’s proceedings be reserved.”
So both during the hearing on 3 March 2021 and in the order made by his Honour, Judge Middleton referred to the dismissal of the Contempt application. His Honour said he was going to dismiss the Contempt Application, and his Honour dismissed the Contempt application. More than two years after his Honour ordered the dismissal of the Contempt application, there is before the Court proceedings for Contempt in respect of eight allegations that appeared in the earlier set of proceedings.
Mr Seewald appears as counsel for the husband and this morning raised the possibility that what had arisen was an instance of double jeopardy. When it was brought to my attention that there had been earlier Contempt proceedings, and after questioning by the Bench, it came to light that the order (contained above in paragraph 8) had been made by Judge Middleton dismissing the earlier Contempt Application. I raised the possibility that issue estoppel or res judicata were applicable. I gave the parties some time, approximately two hours, to do some research, because I wanted to be directed to any relevant authorities.
I have now heard submissions from both Mr Seewald on behalf of the husband and from Mr McGregor on behalf of the wife. It is said on behalf of the wife that the husband agreed with or was complicit in what occurred in March 2021, namely, the initial withdrawal of the Contempt application, and it is said that the intention of all the parties and the Court was that the matter could then proceed to a trial by a different Judge also on the basis, of course, that the recusal application was withdrawn. But I do not think it is that straightforward.
The situation, as I said at the outset, involves a set of proceedings which are extremely serious in nature. The Court has to be very cautious when dealing with applications for Contempt of Court. Strict procedures must be followed, and the Court keeps in mind at all times the serious jeopardy faced by a respondent to such an application. Furthermore, this Court must protect its own processes from an abuse of process. In this regard I note the following cases: Williams v Spautz (1992) 174 CLR 509 at page 520; Rogers v The Queen (1994) 181 CLR 251 at page 286 (per McHugh J); Moti v The Queen (2011) 245 CLR 456 at paragraph 57; R v Carroll (2002) 213 CLR 635 at paragraph 70; Jago v The District Court of New South Wales (1989) 168 CLR 23 at page 25.
These cases all make it abundantly clear that a Court has the power to protect its processes from an abuse of process. It seems to me that the filing of an Application for Contempt followed by a withdrawal of that application, then followed further by an order of the Court in fact dismissing the application, followed by a re-filing of the application in respect of the same grounds (involving the same set of circumstances) does, in my view, impose upon the respondent vexation, oppression and unfairness. What has occurred amounts to an abuse of process.
It needs to be looked at in this context. If the wife were permitted to proceed with these eight charges of Contempt, what effectively has occurred is – as a negotiating tool at an earlier point in time and in an attempt to achieve an earlier trial date, an Application for Contempt was withdrawn. Unless the wife is prevented from now proceeding with those allegations, what can occur is the following. A litigant can, on one set of facts, show up, threaten someone with a Contempt application, file a Contempt application, withdraw it, but leave that hanging over the person’s head. It is like a prosecutor leaving a potential charge hanging over a person’s head.
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)
During argument, I referred to an analogy relating to the filing of a nolle prosequi. There is authority to the effect that the filing of a nolle prosequi, which effectively amounts to the withdrawal of a charge (so here, for instance, it would equate to the withdrawal of the Application for Contempt) – can itself amount to an abuse of process. In this regard, I note the decisions of Macrossan CJ and Thomas J in the Queensland case of R v Jell; ex parte Attorney-General [1991] 1 Qd R 48. I note Justice Thomas identified some instances of an abuse of process, justifying the Courts in refusing to permit the entry of a nolle prosequi, including at page 62:
“…when a case has gone badly for the prosecution and it is conceivable that it might turn out better on a re-run; or when the prosecutor has taken risk by proceeding without a witness who was on holidays, and whose evidence it was hoped would be covered by some other witness who did not come up to proof, so that the prosecutor feels the accused will unfairly escape conviction; or it may occur when the prosecution has chosen to formulate a particular charge, which, after hearing the defence submissions it wishes it had not done…
I note also per Macrossan CJ at pages 53 – 54:
“In addition to the examples provided by Thomas J. in his reasons of instances in which the right to enter a nolle prosequi could involve abuse of process, I would add one further example although any list obviously cannot be exhaustive. The jury after one or more requests for redirection, may have so signalled their likely verdict that an unscrupulous prosecutor might seek to avoid it by entering a nolle prosequi even at that late stage.”
That decision was cited by Crispin J in an ACT case, R v YL [2004] ACTSC 115. Crispin J stated in R v YL at [87]:
“…in my opinion, the entry of a nolle prosequi in these circumstances clearly constituted an abuse of process. The accused, like any other person facing criminal charges in this country, was entitled to verdicts of acquittal if the Crown failed to prove her guilt to the requisite standard at her trial. Notwithstanding that entitlement, it remained open to the Director to enter a nolle prosequi if of the view that the charges should not be maintained. However, it was not appropriate for this procedure to be used as a means of aborting the trial because it had gone badly for the prosecution and had hoped to do better in a subsequent trial, even if those hopes were dependent upon a vague hope of ultimately obtaining favourable rulings on appeal.”
At an earlier point in time the respondent was at risk of imprisonment or fine or both. That was because of the earlier Contempt proceedings. That previous Application for Contempt was withdrawn. But on the same facts, the respondent is again at the same risk of imprisonment or fine or both because of the filing of the new Contempt proceedings. That is, the Contempt proceedings that are currently before the Court. To my mind, what has occurred in this situation does amount to an abuse of process.
The question is what I should do in relation to those particular eight separate allegations that have been the subject of Contempt proceedings twice? There should be an order dismissing those eight allegations of Contempt. In the cases to which I have referred, it seems the preferred approach if an abuse of process is identified, is to issue a permanent stay of proceedings. It has been said that the issuing of a permanent stay of proceedings (whether in civil or criminal proceedings) occurs only in exceptional cases: per Gaudron J at page 76 in Jago v The District Court of New South Wales. Her Honour stated further at page 77:
“The limited scope of the power to grant a permanent stay necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied.”
I asked the parties whether they wanted to make a submission as to whether an injunction ought to be issued. An injunction was not sought.
In that case, I will merely dismiss the eight particular allegations. I would point out that in the earlier Application for Contempt there were six charges pleaded. Those six charges were then replicated (in essence) and expanded to comprise eight separate charges of Contempt in the current Contempt proceedings. The charges of Contempt particularised in the earlier Contempt proceedings (filed 23 November 2020) stated as follows:
“1. 09/08/2019 9:00am Brisbane
Orders dated 11/07/2019
The Respondent failed to provide documents pertaining to the Order 2(d)
2.09/08/2019 9:00am Brisbane
Orders dated 11/07/2019
The Respondent failed to provide documents pertaining to the Order 2(g)
3.09/08/2019 9:00am Brisbane
Orders dated 11/07/2019
The Respondent failed to provide documents pertaining to the Order 2(k)
4.09/08/2019 9:00am Brisbane
Orders dated 11/07/2019
The Respondent failed to provide documents pertaining to the Order 2(I)
5.28/08/2019 9:00am Brisbane
Orders dated 03/08/2020
The Respondent failed to provide documents pertaining to the Order 1
6.28/08/2019 9:00am Brisbane
Orders dated 03/08/2020
The Respondent failed to provide documents pertaining to the Order 3”
It is apparent from a review of the proceedings filed 23 November 2020 and a review of the Amended Application for Contempt filed 28 April 2023 – that the eight charges of contempt contained in the more recent proceedings which will be dismissed are as follows – the charges contained in paragraphs 17, 18, 19, 20, 23, 25, 26 and 28. Those charges of Contempt will be dismissed by order.
That leaves remaining the following charges of Contempt contained in the Amended Application for Contempt filed 28 April 2023 – the charges contained in paragraphs 1, 24, 34, 35, 36, 37, 38, 39, 40, 41 and 42. Eleven charges of Contempt remain. In the event that any party has a different view on the charges that remain for determination – they should bring that to the attention of the Court.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 2 June 2023
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