Dabiri & Khadem (No 2)
[2024] FedCFamC1F 318
•12 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dabiri & Khadem (No 2) [2024] FedCFamC1F 318
File number(s): BRC 5590 of 2018 Judgment of: HOWARD J Date of judgment: 12 February 2024 Catchwords: FAMILY LAW – Contempt proceedings – submission made that there is no case to answer – no case application dismissed Legislation: Family Law Act 1975 (Cth); s 112AD, 112AP Cases cited: Fierro & Fierro (No 7) [2023] FedCFamC1A 24
Ibbotson & Wincen [1994] FamCA 103
Kendling and Anor & Kendling [2008] FamCAFC 154
May v O’Sullivan (1955) 92 CLR 654
Zanetti v Hill (1962) 108 CLR 433
Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 12 February 2024 Place: Brisbane Counsel for the applicant: Mr Kennedy Solicitor for the applicant: Sterling Law 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:
12 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application for no case to answer is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
HOWARD J
These reasons were delivered ex temporeon 12 February 2024 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court relates to an Application for no case to answer that has been made by the respondent. The primary proceedings involve an Application for contempt. The Amended Application for Contempt was filed on 28 April 2023 by the wife. There are 10 charges remaining. Many others were withdrawn previously. The 10 charges remaining are contained in paragraphs 24, 34, 35, 36, 37, 38, 39, 40, 41 and 42 of the Amended Application for contempt. Mr Seewald of counsel appears today on behalf of the respondent, and on the respondent’s behalf, he has made the no case Application.
The Full Court in Fierro & Fierro (No 7) [2023] FedCFamC1A 24 recently considered no case applications in relation to contempt proceedings, noting that if an Application for contempt has been made and it is the view of the respondent that at the close of the prosecution case the charge cannot be sustained on the evidence adduced then the correct approach is an Application that there is no case to answer. This is because of the quasi-criminal nature of contempt applications and this warrants different treatment from a conventional civil proceeding where the Courts have a power to dismiss a claim if a claim lacks reasonable prospects of success. The well-known High Court decision in May v O’Sullivan (1955) 92 CLR 654 remains the leading authority (note especially at page 658). As was pointed out by the Full Court at paragraph 40, when an application is made that there is no case to answer, then:
“At that point in time, the legal question for the court is whether the accused could be convicted on the evidence adduced; not the factual question of whether the accused should be convicted on the evidence (May v O’Sullivan (1955) 92 CLR 654; Zanetti v Hill (1962) 108 CLR 433).”
In respect of charge number 1 contained in paragraph 24 of the Amended Application for contempt, it was argued on behalf of the respondent that there was no evidence upon which the respondent could be convicted of contempt.
Mr Kennedy says on behalf of the applicant, well, in fact, there is evidence from the applicant wife who gave evidence on 10 May 2023 at page 69, line 30 in the transcript, that the document which is supposed to be a copy of a claim filed in Country E is, in fact, merely an email from the husband’s mother to the husband, or it may be an email from the husband to his own mother. The point being made by Mr Kennedy is that there is, in fact, evidence upon which the respondent could be convicted of contempt of the Court.
I am mindful of what has been said in cases such as Kendling and Anor & Kendling [2008] FamCAFC 154 from paragraph 184, as well as Ibbotson & Wincen [1994] FamCA 103, that in relation to section 112AP of the Family Law Act 1975 (Cth), the use of the term in section 112AP subsection (1)(b), “… flagrant challenge to the authority of the court” 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 section 112AD. Mr Kennedy’s reference to the evidence of the wife that was given on 10 May 2023, it seems to me, on balance, is enough to defeat a no case answer. There is some evidence upon which he could be convicted of contempt concerning charge number 1. So far as that charge is concerned, the no case Application is dismissed.
In respect of charge number 2, it is said in the submission for no case that English is the second language of the respondent. There is no indication of any official interpreter being present, and there is no evidence that it amounts to a flagrant challenge to the authority of the Court. I have had regard to the other submissions made by Mr Seewald in relation to that charge, but it seems to me that when I have regard to charge number 2, I am not satisfied that, at this point in time, it could be said that there is no evidence upon which the accused could be convicted. The evidence is that he did not provide the affidavit that he was supposed to. As to whether he should be convicted of contempt in that regard is another question and not one I am required to consider at this point in time.
As to charges 3, 4, 5 and 6, they relate to an Order made on 11 November 2021. It is said that he is in contempt of the Court for failing to provide original documents as required by the Order of 11 November 2021 made by Judicial Registrar Brooks. I think with charges 3, 4, 5 and 6, that this is similar to charge number 2. The failure to comply with the Order, especially when considered with what is said to be repeated breaches of Orders, could be evidence upon which he could be convicted of contempt. So, the no case submission is dismissed in relation to those charges. The same goes in respect of charge 7.
Charges 8 and 9 relate to an Order of 6 August 2021. Charge number 8 is particularised in paragraph 40 of the Amended Application for contempt. It states that “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].” The next aspect of it, which is charge number 9, relates to refusing to give relevant and necessary authority to the parties’ jointly appointed Country E lawyer, Ms M. My attention was drawn to an email that is at page 30 of the annexures to an affidavit of the applicant wife, filed 28 April 2023.
I have read that email carefully and I have read it more than once today. This email relates to the charge number 8. Notwithstanding that it does not specifically refer to a threat not to use his “documentations” to carry out searches, a reading of the document as a whole and in the context of the proceedings generally (and noting the events that have happened) I do think there is evidence upon which he could be convicted. Once again, I reiterate I do not need to consider at this stage whether he should be convicted. As to number 9, my attention was drawn to page 33 of 41. It is difficult to follow, but I do think that means there is evidence upon which he could be convicted.
As for charge number 10, that is an alleged breach of a complex Order, an Order that was made by Judge Willis on 6 August 2021. Consistent with my view in relation to the balance of the Application for no case, it seems to me that the correct approach is to dismiss the Application of no case relating to number 10 because I do think that it is the case that he could be convicted on the evidence that has been provided. I reiterate that it remains to be seen whether he should be convicted. It remains to be seen (for instance) whether it has been proved beyond reasonable doubt that there has been a flagrant challenge to the authority of the Court. That is a matter for another argument. But so far as the no case submission is concerned, I would have to say it is a near run thing, but on balance I would dismiss the no case Application.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Ex Tempore Judgment of the Honourable Justice Howard. Associate:
Dated: 17 January 2025
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