Dabiri & Khadem (No 3)
[2024] FedCFamC1F 319
•13 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dabiri & Khadem (No 3) [2024] FedCFamC1F 319
File number(s): BRC 5590 of 2018 Judgment of: HOWARD J Date of judgment: 13 February 2024 Catchwords: FAMILY LAW – PROPERTY – Proceedings for Contempt – Standard of proof beyond a reasonable doubt – Where there has been no flagrant challenge to the authority of the Court – Application dismissed. Legislation: Evidence Act 1995 (Cth) s 140 and s 141
Family Law Act 1975 (Cth) ss 79, 80, 112AB, 112AP
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Ibbotson & Wincen [1994] 18 FLR 164
Kendling & Kendling [2008] FamCAFC 154
LGM & CAM [2006] FamCA 435
Tate & Tate [2002] FamCA 356
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 13 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:
13 FEBRUARY 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Application for Contempt filed by the Applicant wife on 21 September 2022 be dismissed.
2.That this matter be listed for a Case Management Hearing at 11.00am on 28 March 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane before the Honourable Justice Howard.
3.That the parties and their legal representatives (if any) shall personally attend Court on 28 March 2024.
IT IS NOTED:
A.That an interpreter attended the Defended Hearing which commenced on 12 February 2024.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex temporeon 13 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 is an Application for Contempt. The main proceedings are property settlement proceedings under section 79 of the Family Law Act 1975 (Cth) (“the Act”) between the wife, Ms Dabiri, and the husband, Mr Khadem. The relevant Application before the Court now is an Amended Application for Contempt filed on 27 April 2023. The first two days of the matter took place on 9 and 10 May 2023. On that occasion Mr O of Counsel appeared for the Applicant wife and Mr Seewald of Counsel appeared for the Respondent husband.
The matter continued this week on 12 and 13 February 2024. Mr Seewald again appeared for the Respondent husband and, on this occasion, Mr Kennedy of Counsel appeared for the Applicant wife. The Amended Application for Contempt, as originally constituted, comprised of no fewer than 42 charges of contempt brought by the Applicant wife against the Respondent husband. Many of those charges were withdrawn, so that by the time the matter proceeded originally in May 2023, 10 charges remained. I will come back to them shortly.
This Application is brought pursuant to section 112AP of the Act. Section 112AP(1) states:
“Subject to subsection (1A), this section applies to a contempt of Court that:
(a) does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the Court.”
Section 112AP(1)(b) is therefore the relevant section for consideration. In the decision of Tate & Tate [2002] FamCA 356 (“Tate”), the Full Court, comprising Ellis, Kay and Holden JJ, considered the language of section 112AP of the Act. Their Honours stated at paragraphs 75 and 76 as follows:
“75. Having regard to the language of s.112AP of the Act, including the possibility of committal to prison and/or the imposition of a fine if a natural person is found to be in contempt and to the Rules of Court made pursuant to s.112AP(3), in our view, properly characterised, the application before Murray J. seeking that the husband be dealt with for contempt of court was a proceeding for an offence. Whilst the acts constituting the alleged contempts in the instant case are not offences against any law of the Commonwealth, as to the meaning of which see Jerger v Pearce (1920) 27 CLR 526 at 531 and State of Western Australia v Commonwealth; Wororra Peoples and Another v State of Western Australia; Biljabu and Others v State of Western Australia (1995) 128 ALR 1 at 64, in our view, those acts, if established, constitute offences arising under an Australian law. Accordingly, the proceedings are criminal proceedings as defined in the Evidence Act and thus the standard of proof to be applied is as set out in s.141(1) of that Act, namely proof beyond reasonable doubt.
76. It follows, in our view, that the standard of proof to be applied in proceedings in the Family Court seeking that a respondent be dealt with for contempt of court is proof beyond reasonable doubt.”
(Emphasis as per original)
It is sufficient to note, that the standard of proof to be applied in proceedings in this Court – seeking that a Respondent be dealt with for contempt of Court – is proof beyond reasonable doubt. Reference was made by the Full Court in Tate to section 141(1) of the Evidence Act 1995 (Cth) (“Evidence Act”).
It is the case that each element of the charge of contempt must be proved beyond reasonable doubt. That is the import of what the Full Court had to say in LGM & CAM [2006] FamCA 435 per Holden, Coleman and May JJ. At paragraphs 62 and 63 the Full Court stated:
“62. We conclude that, in proceedings under s 112AP of the Act, the contempt can only be found to have been proved beyond reasonable doubt in the Briginshaw sense if each element of the contempt created by the section is thus established. Those elements include knowledge of the order which the wife in this case is alleged to have breached in circumstances constituting a ‘flagrant challenge to the authority of the court’.
63. Given the nature of the section, we are satisfied that it must be established that the wife knew not only the contents or terms of the order but also their meaning, the orders themselves having been drafted by lawyers and made by judicial officers in terms which a lay person of reasonable intelligence could not be presumed beyond reasonable doubt in the Briginshaw sense to know and understand.”
(Emphasis as per original)
In a further Full Court decision in the matter of Kendling & Kendling [2008] FamCAFC 154 (“Kendling”), the Full Court cited, with approval, passages from an earlier Full Court decision in the matter of Ibbotson & Wincen [1994] 18 FLR 164 (“Ibbotson”). In Kendling the Court stated at paragraphs 183, 184, 185 and 186:
“183. It is instructive to consider the meaning of "flagrant" in s 112AP.
184. The Oxford Dictionary defines "flagrant" as "conspicuously or obviously offensive". The Macquarie Dictionary defines flagrant as "glaring, notorious or scandalous".
185. In Ibbotson & Wincen (above) the Full court suggested that s 112AP involves circumstances:
‘… where the contravention involves a "flagrant challenge to the authority of the court". Repeated breaches are not a prerequisite, although that may more readily attract this provision. The use of the term "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 s 112AD.
In the ultimate, it is a question of fact and degree whether the stringent terms of the section are satisfied, bearing in mind … that it is usually more appropriate to use s 112AD.’
186. The Full court declined to "consider in a definitive way what was intended to be encompassed by s 112AP" on the facts of Ibbotson's case. We have not been referred to any more helpful statement of principle in the practical sense than this passage from the decision of the Full court in Ibbotson (above).We infer from this passage that determining whether the facts as found beyond reasonable doubt in a given s 112AP application will constitute a flagrant challenge to the authority of the court involves neither solely a finding of fact nor solely the exercise of discretion.”
Of particular note in the Kendling decision was the Full Court’s reference to the Oxford Dictionary definition of “flagrant” as “conspicuously or obviously offensive”. There was also (in Kendling) a reference to the Macquarie Dictionary definition of “flagrant” as “glaring, notorious or scandalous”.
The passage from Ibbotson that was cited with approval in Kendling states that:
“The use of the term ‘flagrant challenge’ to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question…”
A close consideration of section 112AP(1)(b) shows that to succeed with an application for contempt under this section, the Applicant must prove, beyond reasonable doubt, firstly, that a contravention of an order has occurred, and then prove beyond reasonable doubt that the contravention involves a flagrant challenge to the authority of the Court.
A good deal of reliance was placed upon certain answers given by the Respondent husband, Mr Khadem, in relation to his attitude or his approach to this litigation. In essence, as I understand the submission, reliance was placed upon evidence which, to summarise, was apparently in terms of the following:
“I follow all the Orders if they relate to Australia, but not if they relate to [Country E].”
Other references were made to whether the husband, on occasions, thought that some Orders were acceptable and some were unacceptable. It seems to me that if the attitude of the husband is that some Orders are acceptable and some are not acceptable - he would not be Robinson Crusoe in this jurisdiction. As to what a litigant might personally think about an Order is interesting, but hardly conclusive. There would be thousands of litigants in Australia who would think that Orders made by this Court, in their own family law proceedings, were unacceptable. They, nonetheless, still have to follow them.
The Applicant placed much reliance on the wording used by the husband in the witness box that he was prepared to follow Orders of this Court if they relate to Australia, but not Country E. There are a number of things I would say about that. In relation to those words that were used, it seems to me that, in fact, little weight can be placed upon them. It sounded more to me like a certain amount of bravado from the husband – and I say this for a very particular reason. On his own case, he has already complied with Orders that do relate to Country E. On his own case he put before the Court, affidavit material annexing, for instance, a claim document from Country E. I am talking here about when he was ordered, on 11 July 2019, by Judge Middleton, to provide the claim filed in Country E.
On Mr Khadem’s own case, he did that. He obtained a document, which was in compliance with the Order. The affidavit was sworn by his mother, but it was Mr Khadem who was the subject of the Order. He was the one required to provide the document. The affidavit of Ms F filed 23 July 2021 was the Respondent husband’s step that he took in complying with Order 2(j) of Judge Middleton of 11 July 2019. The point being that far from doing what he seemed to have asserted in the witness box – of following Orders if they relate to Australia, but not if they relate to Country E – he did actually, on his own case, comply with the Order and put before the Court the claim documents that he was ordered to provide.
It is apparent that he organised for his own mother to swear the affidavit, annex the documents and put them before the Court. When Mr Khadem says – “I follow all the orders if they relate to Australia, not to [Country E] …” – that statement itself is not actually correct.
CHARGE NUMBER 1
The first charge of contempt that remained is in paragraph 24 of the Amended Application for Contempt filed 27 April 2023. In relation to charge number 1, the Court notes the affidavit of Ms F filed 23 July 2021. Annexure E is said to be a claim document that she (the respondent’s mother, Ms F), says is a claim by her against her son (the respondent). There is a copy of it in the original Country E language and an English translation.
In the witness box when she was cross examined, the Applicant wife had maintained that the documents provided were not a Court document – not a claim document from Country E – but rather, an email from the respondent’s mother to the respondent. I am left with evidence of the wife, where she says, “No. It amounted to an email, not a copy of a claim”. I have the evidence of the husband and of Ms F that it constitutes a claim.
It is a dispute in these proceedings between the wife and the husband. It seems to me that without the benefit of expert evidence from an independent lawyer, an expert in Country E law, and an interpreter to interpret the document in full, I am not in a position to determine who is telling the Court the truth. I am not even satisfied that there has been a contravention of the Court order of Judge Middleton, let alone a flagrant challenge to the authority of the Court. Charge number 1 has not been proved beyond reasonable doubt, and it is dismissed.
CHARGES 3, 4, 5 AND 6
I will return later to charge number 2. I am now going to look at charges 3, 4, 5 and 6. These are contained in paragraphs 35, 36, 37 and 38 of the Amended Application for Contempt filed 27 April 2023. The charges relate to Order 5 of an Order made by Judicial Registrar Brooks on 11 November 2021. Order 5 says:
“5. The husband provide to the wife, by no later than 18 November 2021, 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.”
The problem with charges 3, 4, 5 and 6 is that in the husband’s affidavit in question (dated 21 July 2021), he never at any stage asserted that he had original documents. He said that he had copies of various documents. Ordinarily when an application is being brought for contempt (or indeed for a run-of-the-mill contravention), the Applicant would be reluctant to proceed with such an application if the terms of the original Order are not clear and unambiguous. It seems to me that Order 5 of the Orders of Judicial Registrar Brooks of 11 November 2021 is ambiguous. The Order is not actually capable of being carried out. The deponent in question (the husband), never asserted that he had original documents. If an order is ambiguous, it is difficult, in my view, to see how it can be said that non-compliance with it amounts to a contravention under section 112AB of the Act, let alone a contempt under section 112AP of the Act. From the husband’s perspective, he provided in an affidavit dated 21 July 2021, copies of various documents that he said had been left at the Suburb Q property, and they are copies of various documents showing properties and bank accounts in the name of Ms Dabiri (the wife). Today in evidence, he corrected that and said he had discovered copies of various documents showing a property and a bank account in the name of Ms Dabiri in Country E.
The ambiguous nature of the Order made could only lead to uncertainty, it seems to me, on the part of any litigant, and especially one who has English as a second language – as the Respondent does. The orders made by Courts must be clear and unambiguous. The wording of the orders is crucial, especially when one is considering an Application for Contempt of Court. The same can be said in relation to the framing of charges on an Application for Contempt of Court. The drafting of the application must be meticulous in providing particulars of the charge. In respect of charges 3, 4, 5 and 6, my view is that the relevant Court Order was ambiguous. It is difficult to see how it could be said that the Order has actually been contravened, and certainly it is not a situation where I am satisfied that the Applicant has proved, beyond reasonable doubt, firstly, that there has been a contravention, and secondly, that there has been a flagrant challenge to the authority of the Court. Charges 3, 4, 5 and 6 are dismissed.
CHARGE 2, CHARGE 7 AND CHARGE 10
The next charge is charge 7, relating to failure to comply with Order 7 of the Orders of Judicial Registrar Brooks dated 11 November 2021.
Order 7 states:
“7. In the event the husband fails to comply with Order 6 hereof the husband must, by no later than 1 December 2021, 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.”
Order 6 states:
“6. Time is extended, until no later than 4.00pm on 30 November 2021 for the husband to provide the documents referred to in Order 4 of orders dated 6 August 2021.”
The 6 August 2021 Order was made by Judge Willis. Order 4, states:
“4. That within 30 days of the date of these orders, the Respondent provide to the Applicant with the Original Title Deed, or in the alternative, the Original Certified Copy of the Title Deed verified by [Country E] Foreign Affairs and Australian Embassy for the property with the following title particular:
a.Date: […] 2010
b.Date of registration: […] 2010
c.Registration number: […]
d.Serial number: […]
e.Sub-plot number: […]
f.Main plot number: […]
g.Plot no: […]
h.Plot no: […]
i.Address: [J Street, City D, Country E]”
A number of these charges are interlinked, of course, because charge number 7 (in paragraph 39 of the Amended Application for Contempt) indirectly relates to Order 4 of the Order of Judge Willis of 6 August 2021. Charge number 10 (paragraph 42 of the Amended Application for Contempt) also relates to Judge Willis’s Order of 6 August 2021. It is therefore convenient when considering charge number 7, to consider charge number 10. The requirement of Order 4 of 6 August 2021 was the provision within 30 days, by the Respondent to the Applicant, of the original title deed, or in the alternative, the original certified copy of the title deed, in respect of an address at J Street, City D, Country E.
The husband had included in Annexure H of his affidavit filed 21 July 2021, what he said was the original, in Country E language, title deed of the property at J Street, City D. He provided the English translation and the Country E language in Annexure (H) of the 21 July 2021 affidavit. In August 2021, Judge Willis ordered that he had 30 days to provide the original title deed, or in the alternative, the original certified copy of the title deed, verified by Country E Foreign Affairs and Australian Embassy, for the property with those particulars.
When he gave evidence today, the husband was asked by Mr Kennedy of Counsel whether he had access to the original title deed. The answer was he did not. Mr Kennedy also asked him whether he had access to the certified copy of the title deed. His answer was he did not. Now, that second question I recall stating it again for the interpreter to relay to the husband, and the husband’s answer was he did not have access to a certified copy of the document. The answers related to the title deeds and I infer the answers related to the title deeds and transfer of documents that were the subject of charge number 10.
I do note that Senior Judicial Registrar Spink varied Order 4 (of the 6 August 2021 Order) on 3 February 2022. I infer from the evidence provided by the husband today, that he did not have access to the original documents, whether the title deeds or the transfer documents and, nor did he have access to a certified copy of the title deed or the transfer documents. That is his evidence given today.
The scope of the cross examination was, understandably, limited because the case at the moment is not a property case under section 79 of the Act, but proceedings for contempt. I indicated to the parties late yesterday afternoon and again this morning, that the difficulty faced by the Court in this situation is assessing disputed issues of fact – that is between the wife and the husband. The husband says, “I don’t own this particular property in [Country E] – it belongs to my mother”. The wife says “No, he owns it”. The husband says, “I don’t have access to original documents or certified copies”. In the absence of a full trial I am not in a position to make findings whether I consider that the husband is a witness of truth, or if he is not a witness of truth. I am not in a position to make a finding whether the wife is telling the Court the truth or if she is not telling the truth.
Being unable to make that assessment at this stage, leaves me to conclude that insofar as the contempt charge number 10 is concerned, when he says, “I don’t have access to those original documents or the certified copies of them”, that is the evidence I am left with. It has not actually been proven that what he has said there is wrong - and I am not in a position to make a finding against him on credit because I have not got before me sufficient tools to ascertain whether I consider he is a witness of truth or he is not a witness of truth. The evidence is there. It seems to me there is no reason at this stage why I would conclude that he has not told me the truth today. This means that the Respondent has a reasonable excuse for not complying with the Order. The Applicant would not even succeed on a claim for contravention, let alone a claim for contempt. Charge number 10 is dismissed.
Charge number 7, as I said earlier, was linked to charge 10 because of the reference to the Order of Judge Willis of 6 August 2021. This charge relates to the non-filing of an affidavit, explaining attempts that were made to comply with the earlier Orders of Judicial Registrar Brooks. The Respondent said in evidence today, that he does not have access to the original documents or the certified copies. From what I have got in front of me at the moment, it seems to me to be sufficient to amount to a reasonable excuse for not complying with Order 4 of the Order of 6 August 2021, and with the Order of 3 February 2021 of Senior Judicial Registrar Spink.
As far as charge number 7 relates to failing to file an affidavit - providing evidence of the attempts he made to comply with those other Orders - and it seems to me to be an Order that he should have complied with. As to that part of the Order that required him to provide further information regarding his ability to comply in the future - that Order is just a bit too abstract to be an Order that can be capable of being complied with.
As to the husband’s failure to comply with the Order of Judicial Registrar Brooks (so far as it relates to the provision of an affidavit explaining past attempts to comply with certain Orders) as particularised in charge 7, the highest I would put it would be that it could be said to amount to a contravention. But I am far from satisfied that it amounts to a flagrant challenge to the authority of this Court. Charge 7 is also dismissed. The same goes with charge 2. It is dismissed. It relates to failing to file an affidavit. Failing to file an affidavit setting out reasons for failing to do something else is one thing. As to whether it amounts to a contravention, it may well, but again, I am far from satisfied that I have been shown any evidence that would convince me that, so far as charges 2 and 7 are concerned, there is any evidence that there was something exceptional or striking about the nature of those contraventions, so as to differentiate it from what might be described as the general run of breaches that are intended to be dealt with under section 112AD of the Act – to use the words from the Full Court in Ibbotson.
CHARGES 8 AND 9
In relation to charges 8 and 9, these charges relate to Order 1(f) of the Order of 6 August 2021 of Judge Willis, as varied on 3 February 2022 by Senior Judicial Registrar Spink. It is important for the Court to go back to those Orders, as I said earlier, and to carefully consider the wording of those Orders.
In relation to charge number 8 and in relation to charge number 9, the allegation is breaches occurred of order 1(f) of 6 August 2021 made by Judge Willis, as varied on 3 February 2022 by Senior Judicial Registrar Spink. A consideration of 1(f) states:
“The parties must attend all places, and sign any and all documents, and do all things and acts necessary in compliance with these orders.”
Senior Judicial Registrar Spink, in paragraph 1(b) of his Order of 3 February 2022 amended 1(f) from Judge Willis’ order, so that it reads:
“…That within 14 days from the date which request is made, the parties must attend all places, and sign any and all documents, and do all things and acts necessary in compliance with these orders.”
The intent of the Orders was to put in place some person, being a Country E lawyer, to take certain steps and it seems carry out certain searches, although the orders themselves do not say that and herein lies a very great difficulty with this kind of order. I am not being critical of the judge, before whom consent orders were submitted by two senior barristers, Mr Q and Mr N on 6 August 2021. In this situation, you have the Court requiring a third person to become involved, in this case an Country lawyer who practices in Australia, who would then take certain steps, make certain requests and do certain things. It is said in the charge of contempt that Mr Khadem had made threats to the Country E lawyer not to use his documentations for the purpose of carry out searches in Country E. What he did say in the English translated version of the email, which is at page 30 of the affidavit of the wife filed 1 May 2023 (but sworn on 1 September 2022), was:
“I warn you that I will challenge you if you use any of my documents and identification cards.”
Mr Seewald of Counsel says by way of submission that the husband did not at any time make a threat that the lawyer ought not use the husband’s documentation for the purpose of carrying out searches in Country E. Strictly speaking, Mr Seewald’s submission is correct. They are not the words used in the email (as translated). I am concerned at certain other evidence the husband gave today. I am not satisfied that the translations given were accurate as to what he said or did not say. I do not recall now (as I deliver these reasons ex-tempore) as to whether his evidence in that regard specifically related to this particular email. In his evidence about this email it certainly was my inference from what he said, that he did not accept that he had made threats to the lawyer not to use his documentation for the purpose of carrying out searches in Country E.
He also gave evidence today that he alleges – (I use the word “alleges” because I do not know one way or the other) – that the wife had acquired his identification information. My impression was that the Respondent husband was very concerned at how any person might use his identification papers or documents in Country E.
Order 1(f) from 6 August 2021 is convoluted. It was what the parties, through their barristers, put before the Judge. I am not critical of the Judge. Senior Judicial Registrar Spink merely amended those orders. I am not critical of the Senior Judicial Registrar either. It is a convoluted mechanism that is sometimes used. It is particularly difficult to actually enforce an order made by a Court when that very order grants to a third party apparent authority to make certain requests of the parties.
The Orders that are said to have been contravened are those orders to which I have referred, namely Order 1(f) of 6 August 2021 and Order 1(b) of 3 February 2022. I am very concerned at the process and the framing of the Orders that were made and the expectation that was placed upon the parties. There is not contained in the orders, a clear and unequivocal direction to the parties to do any particular act. It does seem to be Orders that are directed to requiring the parties to do what someone else tells them to do. I suppose the question for consideration is: does the husband’s apparent failure to cooperate with the independent lawyer amount to a contravention of the Order? Is there sufficient clarity from the orders that were made by the Court that could lead this Court to conclude that the orders themselves have been contravened?
I have a good deal of difficulty with this because it seems to me there are other ways it could have been done rather than, as it were, subcontract the matter out to an independent lawyer. The independent lawyer, for instance, could have been appointed by the Court under section 80 of the Act as a Trustee in respect of the parties themselves and in respect of their respective property interests. L Lawyers or R Lawyers could have been appointed under section 80 of the Act, as Trustee - or a similar order could have been made under section 80(1)(k) of the Act. One approach would have been to require all parties to be present in the courtroom and have a Judge order on the spot the provision to the Trustee of a person’s passport identification number and so forth.
The benefit of such an approach would have been the Trustee’s obligation would be to the Court and the Trustee and would have the direct authority of the Court and the Trustee would be answerable to the Court.
The obligation would be unambiguous and the obligation would have the direct authority of the Court. The question would not be, as it were, subcontracted out to a third person. Noting the nature of the Orders originally made and my comments that I have made concerning what I consider to be the inappropriateness of using that particular mechanism in this particular case; noting my view that it makes it difficult for the Court now to ascertain precisely what has occurred in terms of any alleged breach of the Court Order; and further noting so far as charge 8 is concerned that the Respondent, on the face of that email that has been translated, could not be said to have threatened anyone not to use his documentation to carry out a search (although it possibly could be implied). For the reasons stated herein, my view is that these Orders are difficult to follow and are not easily amenable to a conclusion that a contravention has occurred, let alone a conclusion that the Respondent is guilty of contempt.
It may well be that at the conclusion of the property proceedings I will be in a position to make findings on the balance of probabilities to the effect that one party or another may have taken steps to avoid full disclosure of documentation or other information, but I am a long way from being in a position to make any sort of finding like that.
I am not satisfied that it has been proved that charges 8 and 9 amount to a flagrant challenge to the authority of the Court. I am not satisfied that either charge has been proved beyond a reasonable doubt and those charges are dismissed.
CONCLUSION
Charges 1-10 inclusive are dismissed.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 13 February 2024
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