Danilov & Wynn (No 2)
[2023] FedCFamC1F 252
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Danilov & Wynn (No 2) [2023] FedCFamC1F 252
File number(s): BRC 15350 of 2019 Judgment of: HOWARD J Date of judgment: 8 March 2023 Catchwords: FAMILY LAW – PARENTING – Application for recusal - Application for contempt against the mother – Application for contempt against the Independent Children's Lawyer – Application for an adjournment Legislation: Corporations Act 2001 (Cth) s 198G
Family Law Act 1975 (Cth) Part VII, Part VIIIAA, Part XIIIB, ss 112AP, 112AP(1)(a), 112AP(4)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.28, 2.35, 2.36, 7.13(3)(e), 11.71, 11.71(6), 11.71(7), Division 2.6.2, Table 2.2
Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Ebner v Official Trustee in Bankruptcy & Ors (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
May v O'Sullivan (1955) 92 CLR 654
Wilson v Kuhl [1979] VR 315
Division: Division 1 First Instance Number of paragraphs: 63 Date of hearing: 7 – 8 March 2023 Place: Brisbane Counsel for the Applicant: Mr Blaxland Solicitor for the Applicant: Q Lawyers The Respondent Litigant in person Counsel for the Independent Children's Lawyer: Ms Hellewell Solicitor for the Independent Children's Lawyer: Smithson Lawyers Gold Coast
Table of Corrections 15 May 2023 In paragraph 46, the word ‘would’ has been corrected to ‘could’. ORDERS
BRC 15350 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DANILOV
Applicant
AND: MR WYNN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
8 MARCH 2023
THE COURT ORDERS:
1.That the respondent father’s application filed 28 February 2023 and amended 7 March 2023 seeking the recusal of the Honourable Justice Howard is dismissed.
2.That the respondent’s application for contempt against the applicant filed 28 February 2023 is dismissed.
3.That the respondent pay the mother’s assessed costs in relation to the application for contempt filed 28 February 2023.
4.That the respondent father’s oral application on 8 March 2023 for leave to file an application for contempt against the applicant mother is dismissed.
5.That the respondent father’s application for contempt against the Independent Children’s Lawyer filed 6 March 2023 is dismissed.
6.That the respondent father’s oral application on 8 March 2023 for leave to file an application for contempt against the Independent Children’s Lawyer is dismissed.
7.That the respondent father’s application filed 28 February 2023 and amended 7 March 2023 to adjourn the proceedings is dismissed.
8.That the respondent father’s application for leave to proceed with an application filed 28 February 2023 and amended 7 March 2023 for the removal of the Independent Children’s Lawyer is dismissed.
9.Costs (other than those outlined in Order 3) are reserved.
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 Danilov & Wynn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 15 May 2023
HOWARD J
A. The application for recusal was heard on 7 March 2023. The Court reserved its decision. Reasons for Judgment were delivered orally on 8 March 2023. The Reasons have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter currently before the Court involves parenting proceedings. The applicant in the case is Ms Danilov (the mother) and the respondent is Mr Wynn (the father). The Independent Children’s Lawyer is Ms Smithson.
The parents were married in 2012, having commenced cohabitation some six years prior in 2006. They have three children born in 2013, 2014 and 2017. The parties separated in June 2019. On 17 December 2019, the mother commenced proceedings in this jurisdiction. Various orders were made in 2020 for the father to spend time with the children, including the Orders of 17 February 2020 and 21 April 2020. The matter was set for trial in August of 2022 and, again, now March 2023.
The Court, in 2022, had made an order that before any of the parties filed a further application, leave of the Court was required. Notwithstanding the making of that order, just prior to the commencement of this trial, the father filed an application seeking certain orders without the leave of the Court. The order I’m referring to was made on 15 August 2022 (Order 3) that no further applications or material are to be filed without leave of the Court. One of the orders sought by the father was that I disqualify myself on the grounds of apprehended bias. This application was filed by the father on 28 February 2023 and then amended on 7 March 2023, the very morning this trial was to commence. The father, in fact, sought nine different orders in the amended application, two were added on 7 March 2023, numbers 9 and 10.
Application for Recusal
For present purposes, I need to determine at the outset the application for recusal. Yesterday, 7 March 2023, I heard submissions from the father on this application and I heard from counsel for the mother, Mr Blaxland, and counsel for the ICL, Ms Hellewell, and I note the father has filed an affidavit accompanying the application. In terms of the granting of leave to proceed with the application, given the nature of the application, it seemed to me to be appropriate, even at this very late stage, to grant the father leave to proceed with the application.
It transpires that the father has three broad areas of submissions in relation to the application for recusal. The first relates to 15 June 2022 and the father is concerned that, on that day when the other parties were represented and he was not, according to paragraph 85 of the father’s outline of submissions filed on 7 March 2023, I drew to the attention of the solicitors, Mr Nowers, Mr K and Mr J - section 198G of the Corporations Act 2001 (Cth) (“the Corporations Act”). The father specifically alleges:
I was self-represented and his Honour assisted and directed three solicitors to quash my application. I was severely prejudiced and his Honour had no right to direct the solicitors to the Corporations Act. A clear bias, as I was self-represented.
Before I embark upon a consideration of that submission, it is helpful to set out the applicable law. The High Court in Ebner v Official Trustee in Bankruptcy & Ors (2000) 205 CLR 337 – noted at pages 345 and 363 respectively:
[8] The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation or an interest in a party to it, will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[1]
[83] ...The test in this country with respect to the appearance of bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question [he or she] is required to decide".[2]
[1] Per Gleeson CJ and McHugh, Gummow and Hayne JJ.
[2] Per Gaudron J. And see Johnson v Johnson (2000) 201 CLR 488 at 492 [11], per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
Footnotes omitted
The father, as I say, sets out three broad areas of complaint, by way of submissions, concerning, primarily, my conduct of case management hearings in this matter. I have already referred to the s 198G Corporations Act submission made by the father. It is as well to address these one by one as I go through.
On the day in question, 15 June 2022, one of the matters before the Court involved an application brought by the father for the joinder of parties to the litigation. In particular, this first aspect related to – an application to join the following people or entities: Mr Benoit and Mr Coombs (as liquidators); 1D Pty Ltd (In Liquidation); C Pty Ltd (as trustee for the B Trust); G Pty Ltd; Mr Hinkley.
For present purposes, the only relevant part of what happened on that day is the father’s submission that the Court ought not to have drawn the attention of the parties to a particular section of the Corporations Act. In doing so, it is said by the father, the Court engaged in conduct which a fair-minded lay observer might reasonably apprehend that the judge, thereby, might not bring an impartial and unprejudiced mind to the resolution of the question. It would be a very great impediment to the administration of justice if a judge was not permitted to draw relevant legislation to the attention of parties. The section in question related to the standing of the father to bring the application.
The question of standing is a fundamental question when an application is brought before the Court. I agree with the submissions made by Ms Hellewell; it cannot be the case that when a Court draws a party’s attention to a particular section of an Act that is relevant to the matter, that a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the dispute. In fact, my view is that a judge would be in dereliction of their duty if they did not draw relevant legislation to the attention of the parties. As to the first argument raised by the father, I do not consider that it is the type of conduct that warrants recusal.
The father’s next complaint relates to Part VIIIAA of the Family Law Act 1975 (Cth) (“the Act”) and the jurisdiction of the Court to make orders against third parties. It is said by the father that on 19 August 2021, the possibility of the father bringing an application to join certain third parties was raised by the father. It is said in paragraph 86 of the father’s outline of submissions filed on 7 March 2023, inter alia, that the joinder application was filed by the father “due to the directions of his Honour on 19 August 2021”. That is, in fact, not correct. The Court did not issue any direction. What occurred, in broad terms, on 19 August 2021 was that the Court noted that this Court, then known as the Family Court of Australia, had jurisdiction to make orders against third parties. It was noted this Court had jurisdiction first of all, to join third parties, and then it was noted that the Court had jurisdiction to make orders against third parties.
It needs to be understood from the outset that the Court does not at any time provide advice to the parties.[3] That is not part of the judicial function. It is appropriate for a judge to briefly outline the nature of jurisdiction - which is what was done on 19 August 2021. To my mind, a fair-minded lay observer would not reasonably apprehend that I would not now be able to bring an impartial and unprejudiced mind to the resolution of this case on the basis of this argument.
[3] Transcript 19 August 2021, p.23 lines 1–4.
This is also the case when one has regard to the costs application on that day. Costs applications, of course, can be brought at the conclusion of any application in this Court. Costs orders are a matter for the discretion of the Court. Submissions were made. A costs order was made against the father. The actual hearing of that application was on 15 June 2022, and an application for costs was made. It was heard and determined. Reasons were given on 15 June, and the costs order was made.
There has been no appeal against the orders made on 15 June 2022, nor was there any appeal against the costs order. It cannot seriously be contended that on 19 August 2021 the Court gave some unofficial indication to a party, in this case, the father, in open court that a potential application to join third parties would be viewed favourably. That is the import of the submission made by the father, and I do not consider that a fair-minded person would come to the conclusion that that is what occurred.
The third broad raft of submissions from the father again relates to an application that was apparently filed in August 2021, amended on 15 February 2022. The father was concerned because he said that the Court ought to have regard to his accompanying affidavit on that occasion where, the fathers submits, the Court should have realised that the father was unhappy with the lack of disclosure either by the mother, or by the ICL, or both, and the Court ought to have acted and made an order about disclosure.
I have in front of me the relevant amended application in a proceeding that was filed on 15 February 2022. Six orders were sought, the sixth being a generally included order to ‘sweep up’ anything else that remained, that is, any further or other order the Court deem appropriate. Paragraphs 1 through to 6 of that amended application in a proceeding stated as follows:
1.For the single expert witness, [Ms AC] family report writer to answer questions concerning the family report filed 25 January 2021.2.The trial commencement be adjourned until the current matters concerning the father’s Domestic and Family Violence order applications and Apprehended Violence Order revocation are finalised.3.For the expert witnesses, [Ms AC] and [Dr AD] produce a report that complies with rule15.59 of the Family Law Rules 2004 and consider facts that have recently become available, including facts adduced from the father’s Domestic and Family Violence order applications on foot.4.For the current Single Expert Witness reports filed with the Honourable Court be set aside.5.That the father spends time with the children on an unsupervised basis. The time spent with the children moves to overnight stay each alternate weekend from after school pick up Friday afternoon until Monday school drop off.1.For the single expert witness reports by [Ms AC] (family report) and [Dr AD] (psychiatrist) be updated and the fresh evidence and take into account relevant facts pertaining to the father’s Domestic and Family Violence matter and any new affidavits filed.
2.The children [X] born […] 2013 and [Y] born […] 2014 and [Z] born […] 2017 spend supervised overnight stay with the father as follows:
a.Each alternate weekend from after school pickup on Friday until 6 pm on Sunday, extending to 6.00 pm on Monday if the weekend is a long weekend.
b.The supervision is conducted by [Ms AE] or [Ms AF] or [Mr AG].
3.The father and mother agree on a suitable location to return the children to the mother.
4.The father be authorised to be involved in the children’s schooling but not limited to having access to the school app, parent-teacher interview’s, programs and after school curricular activities.
5.That the children (and parents) attend counselling psychology services with [Ms AH] of [AJ Health Service].
[Ms AK] of [AL Psychology] at [AM Town].6.Any further or other Orders the Honourable shall deem appropriate.
(Mark-up as per original)
Nowhere in that application was the father seeking an order for disclosure. It is not the role of the Court to hunt through a party’s affidavit to try to determine what it is, in fact, that the parties should be asking the Court to do. Again, the Court does not provide legal advice. The Court provides some assistance in relation to procedure. I would add at this point that the father by that stage had been self-represented for some time and had appeared in this Court before Baumann J prior to appearing before me.
The orders sought by the father in the amended application in a proceeding, in no way sought orders for disclosure. It is not surprising, therefore, that the Court did not make any orders for disclosure. Certain other issues were raised by the father which he says would give rise to a conclusion by a fair-minded lay observe that I might not bring an impartial or unprejudiced mind to this litigation including that the Court had failed to ask how the contact visits had progressed. Apparently, a written request had been made recently to my chambers about the seeking of leave for a psychiatrist named Mr AN to provide an affidavit. As I said during argument yesterday, it is not the Court’s practice so close to a trial to answer a litigant’s correspondence, (whether the litigant is represented or otherwise) in the absence of some consent position from all the parties. In particular, it is not appropriate to grant leave for an additional expert's report in the absence of some consent from all the parties. That is a matter that needs to be dealt with in open court.
Another matter raised by the father relates to my case management of the matter generally and in paragraph 19 of an affidavit he filed on 28 February this year, he said that in his view:
Howard J has taken a particular course in administering the proceedings that have prejudiced the children and me.
His concern relates to what is said earlier in that paragraph, and it is the matter I touched on previously, that I had never asked the ICL or the father - how the visits had been going at the contact centre and I had never asked the ICL to report back to the Court to ascertain how the children are going nor had I suggested unsupervised time. Again, I would point out that there appears to be a fundamental misunderstanding of the role of the Court. The Court does not carry out investigations. The Court is not inquisitorial, in the European sense. The Court relies upon the parties to put before it the evidence upon which they want to rely. This includes evidence of matters such as how contact visits have been progressing.
There was a complaint by the father that the Court had not dealt with certain interim parenting applications to grant him unsupervised time in various other matters that he sought. The view that I took at the time – and it remains my view – was that those are matters for trial. These are very hotly contested parenting proceedings. The Court will be required to make findings on credit after the parties have given evidence in the witness box. What has to be remembered and understood - cases are decided on evidence.
The courts are by and large limited to the parameters of the evidence. There are certain matters of discretion for the Court, but the Court has to administer justice according to law and matters of discretion have to be addressed in a principled way and in accordance with the Act and paying close regard to the evidence. I do not consider that this issue raised by the father would raise any concern in the mind of a fair-minded lay observer.
It is important to note that in the case management hearings that have occurred – and there was only one actual interlocutory application in the time that I have been the case management judge - at no stage have I been required to nor have I made any credit finding against anyone. It may be that after a trial and after I hear from the mother in the witness box and the father in the witness box, I am compelled to make orders that neither of them are happy with. It will depend upon the evidence as it transpires through the course of these proceedings.
As best I can, I have gone through the complaints and the submissions raised by the father. To put it mildly, they were rather difficult to ascertain because some of his submissions appear in his affidavit, filed on 28 February 2023, in particular, around paragraphs 10, 19 and 20 and thereabouts. I note that affidavit, as including annexures, is 373 pages long. Also, some of his submissions appear, as I mentioned earlier, in his outline of submissions filed on 7 March 2023.
Quite apart from my conclusion that a fair-minded lay observer could not reasonably apprehend that I might not bring about an impartial and unprejudiced mind to the resolution of the questions to be decided, at no stage do I consider that the father has articulated any logical connection between the matters that he has raised and any feared deviation from the course of deciding the case on its merits. The application for recusal is dismissed.
B. On 8 March 2023, once the Court had delivered judgment dismissing the father’s application for recusal, the Court heard a number of other applications. Reasons were delivered ex tempore on 8 March 2023 and those reasons have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The father’s Application for Contempt – against the mother
At the outset, I note, by way of reasons, that an application for contempt was filed by the father on 28 February 2023, very close to the date of the commencement of the final hearing. The mother is the respondent to the contempt application. At the outset, Mr Blaxland, on behalf of the mother, noted that personal service under the rules is required in the case of a contempt application. In particular, Rule 2.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and Table 2.2, which goes with it, makes it clear that in respect of an application for contempt, personal service is required upon the respondent to the application. Personal service is defined then in Division 2.6.2 of the Rules of this Court.
The father, Mr Wynn, concedes that he did not personally serve the document upon the mother, but said that he had attempted to effect personal service through the mother’s lawyer. Rules 2.35 and 2.36 state, as follows:
2.35 Personal service—general
(1)A person serving a document personally on an individual must give a copy of the document to the person to be served.
(2)However, if the person to be served does not take the copy of the document, the person serving it may put it down in the presence of the person to be served and tell the person what it is.
(3)The person serving a document must not be the party on whose behalf the document is served, but the party may be present when personal service occurs.
2.36 Personal service through a lawyer
A document is taken to be served personally on a person if:
(a)a lawyer representing the person agrees, in writing, to accept service of the document for the person; and
(b)the document is served on the lawyer:
(i) in accordance with rule 2.35; or
(ii) in another manner as agreed with the lawyer.
The father did attempt to serve the contempt application on the mother’s lawyer, but what is required is for the lawyer for the mother to agree in writing to accept service of the document. That did not occur. The father read out to the Court the exchange of emails between himself and the lawyer for the mother and the father has told the Court he will print a copy of the correspondence and those two emails will form part of the record here. They will be Exhibit 1 together.
In any event, it is apparent from what the father read out that the lawyer did not agree in writing to accept service of the contempt application on behalf of the mother. In many cases, a person in the position of the applicant might apply to the Court to have the hearing of the application adjourned so as to give him time to personally serve the mother, but there is a fundamental problem with this application. As I said at the outset, procedures must be followed in a strict sense. The application for contempt, as I said, in relation to Rule 11.71, must be in accordance with the approved form and it must state the contempt alleged. What is alleged here is that “on 10 November 2023, at 10 am, at [AO Street, AP Town], New South Wales” - certain things occurred and then the father sets out the statement of alleged contempt.
That, of course, is not yet a date in time that has been reached, so there is a fundamental flaw in the actual application which would mean the application, as filed, it seems to me, would be doomed to fail in the event that the Court is not inclined to permit an amendment. In the circumstances of this case and noting that this is an application for contempt - a quasi-criminal proceeding – I do not consider that it would be appropriate for the Court to permit such an amendment, especially considering the trial was scheduled to commence yesterday.
It seems to me then that because the Court is required to adopt a strict procedure and the applicant, in this case the father, is required to state the alleged contempt in his application, the fact that he has got a date in November later this year means that the application, as currently pleaded, is bound to fail and, in the circumstances, what should occur is a dismissal of this application. That will not prevent a further contempt application being filed at some stage in the future, subject to the Court granting leave to do so, noting the orders that have been made, firstly, in August 2022 and also yesterday whereby a party requires leave of the Court before proceeding with any further applications.
The application for contempt against the mother filed on 28 February 2023, therefore, is dismissed for the reasons stated. Firstly, it was not served properly, but, more importantly, on the dismissal point, the way it is pleaded, it is bound to fail.
The father’s application for leave to file a further Application for Contempt – against the mother
The father has made an oral submission (or application) seeking that the Court decide now whether or not to grant to the father leave to file a further application for contempt against the mother. It is not appropriate for the Court to make any decision in relation to an application for leave unless and until an application for leave has been properly filed and served. In relation to the application for costs, I called on the father to make a submission on the costs. He asked that it be reserved until the conclusion of the proceedings. Applications for contempt are quasi-criminal in nature. It is incumbent upon the applicant to comply with the rules.
There is a fundamental problem with the contempt charge, as pleaded. This was noted in the reasons that I gave just moments ago. In all the circumstances, it seems to me that the unsuccessful applicant should bear the costs of the application. As to the amount, it is going to have to be assessed on the applicable scale for this Court. I am not going to fix a figure, so it is going to need to be assessed.
The father’s Application for Contempt – against the ICL
The matter before the Court is an application for contempt of Court filed on the day before this trial was scheduled to start. It was filed without the leave of the Court even though the Court had made an order that before any further applications were filed, leave was required. However. I agreed to entertain this application today, as well as an earlier application for contempt which I dismissed. Contempt proceedings are quasi-criminal in nature and they are a very serious category of application. I granted leave to the applicant father to proceed with his application for contempt against the Independent Children’s Lawyer despite the late filing. Strict procedure must be followed, in particular, Rule 11.71.
The application for contempt or the section of the Act which deals with contempt of Court is found in Part XIIIB, section 112AP; specifically:
(1) Subject to subsection (1A), this section applies to a contempt of a 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.
The application that has been made by the father falls into section 112AP(1)(a); it does not constitute a contravention of an order under the Act. Section 112AP(4) says that:
Where a natural person is in contempt, the Court may punish the contempt by committal to prison or fine or both.
At the hearing today, the relevant procedure was followed in accordance with the Rules, Rule 11.71(6). The ICL, through her counsel, was informed of the allegation. Through her counsel, the ICL denied the allegation of contempt. The Court then heard evidence in support of the allegation. That evidence comprises an affidavit sworn by the father and filed on 28 February 2023. Counsel for the ICL wanted to cross-examine the father and did cross-examine the father. The father was then given a chance to provide any clarification that might be needed to assist the Court in case there was any uncertainty in relation to answers he had given in cross-examination. I note, of course, that the father is self-represented. Pursuant to Rule 11.71(7), after hearing evidence in support of the allegation of contempt, the Court may, if the Court decides there is no prima facie case, dismiss the application.
Counsel for the ICL has submitted that there has been no prima facie case established by the father in respect of the alleged contempt by the Independent Children’s Lawyer. The particulars of the contempt are contained in part C of the document called the Application for Contempt filed on 6 March 2023, and reads:
The ICL Ms Janeen Smithson of Smithson Lawyers did not provide full and frank disclosure to the Expert Witnesses. A breach of the Federal Circuitand Family Court of Australia (Family Law) Rules2021 r 7.13(3)(e).
The breaches occurred on 27 June 2022, 8 April 2022, 18 July 2022, 8 August 2022, and 4 February 2023. My former solicitor [Mr AQ] raised the issue of disclosure to the ICL and the ICL did not reply to his email of 4 February 2023.
The Affidavit filed 28 February 2023 addresses the breaches and exhibited emails to confirm the breaches by the ICL in not providing full and frank disclosure to the Expert Witnesses.
The alleged contempt has the date as being 27 June 2022; the time is 10.00 am; then there is the place, AR Street, Suburb AS, and I read this out earlier when I was reading out the allegation of contempt to the ICL so that she could respond through her counsel.
In my view, the particulars of the contempt charge are confusing, unintelligible and apt to be misleading. On that ground alone, I would dismiss the application for contempt, but that is not the only reason that I would dismiss it. I agree there has been no prima facie case established. Indeed, my view is that the contempt application so brought is wholly misguided and shows that there is a misunderstanding in relation to the law of contempt.
The application is fundamentally misguided in its intent, in my view. Furthermore, it is flawed in its prosecution. There is no allegation, for instance, of wilful disrespect or disobedience by the ICL towards the Court or in the face of the Court. The substance of the allegations appear to be that the father is personally unhappy with the ICL. I do not consider that the material that has been put before me is sufficient to raise a prima facie case for contempt of the Court.
To the best extent that I can understand what the father is alleging from the rather confusing particulars contained in the contempt application – the father seems to say that the ICL did not put before the experts, that is Dr AD and Ms AC, certain documents. It is said by the father this amounts to a breach of the rules, in particular, Rule 7.13(3)(e) of the Rules of this Court. If I look at page 58 of 373 of the father’s affidavit filed 28 February 2023, there is contained there a copy of an email that is referred to in the particulars of the charge. The email was from Mr AQ (who was then the father's lawyer) to the ICL and to the mother's lawyer. In that email Mr AQ set out five categories of documents and the email noted further that Dr AD’s affidavit of 9 August 2022 did not list the documents that fall into those five categories. The allegation made by the father appears to be that the ICL failed to send certain documents to Dr AD. At this point in time, that remains little more than an allegation. It is not proved and there is no evidence at this stage that could be said to establish as a fact that certain matters were not put before Dr AD. It is said by Mr Wynn that Dr AD’s own affidavit lists what he received and that certain documents are not appearing on that list, hence he (the father) concludes that Dr AD did not get the documents. Once again, my view is that it proves no such thing. All it proves is that Dr AD may not have put in his affidavit a full list of what he did or did not receive.
But there is an even greater difficulty for the applicant here because even if it occurred that through some inadvertence or negligence or otherwise, and I am not saying that there is either in this case, but even if it occurred that an Independent Children’s Lawyer for some reason failed to provide a document to an expert, it is difficult to see how that could amount to contempt of the Court. I suppose it could be in circumstances where a court has ordered an Independent Children’s Lawyer to do a particular thing and to, for instance, send to a doctor by a particular date a copy of a document and if the ICL failed to do that, then I can see that in those circumstances, it might be said that an ICL acted in contempt of court.
But in circumstances where it is a matter for the ICL as to what documents are or are not sent to an expert, it is difficult to see how that could possibly give rise to contempt of the Court. I note what was said by McGuire J in Gordon & Wayland [2022] FedCFamC1F 83 at paragraph 26. That was another case involving an application for contempt against an Independent Children’s Lawyer. His Honour noted, and I agree with his Honour’s comments:
… the allegation is to the effect that a contempt has occurred involving acts, or omissions, or behaviours in circumstances where the law of contempt is concerned with the maintenance of an effective legal system and to protect the administration of justice – where the remedy of contempt is generally seen as being the ultimate sanction.
At this stage in the process in considering whether a prima facie case has been established, the Court does derive assistance from previous cases. In Wilson v Kuhl [1979] VR 315, it is apparent from page 318 that there are, on one view, similarities between a submission of no case to answer in a criminal proceeding and use of the words “no prima facie case.” May v O'Sullivan (1955) 92 CLR 654 is the relevant law in Australia dealing with a submission of no case to answer. The question for the Court at the moment is whether there is evidence before this Court now which, if the Court accepts it, could provide evidence of each element of the charge of contempt.
Given that my view is that there is no evidence that could show wilful disrespect or disobedience by the ICL towards the Court, or, to put it another way, towards the proper administration of justice, the correct way to proceed is to dismiss the application for contempt on the basis that no prima facie case has been established. It is important to keep in mind the following matters in this situation, and they provide further reasoning as to my conclusion. The ICL is, by definition, independent of the parents. It is very often the case that there is a disagreement between a parent who is a party to the proceedings and an Independent Children’s Lawyer.
It is not generally for the Court or another party to direct an Independent Children’s Lawyer on how to prosecute the case. Obviously, the Court can, if necessary, make orders or directions, but it is ultimately a matter for the ICL as to the timing and the obtaining of expert evidence. It is a matter ultimately for the ICL as to what matters are put before the experts. And the father, if he is upset or unhappy with the evidence before Dr AD, will be perfectly entitled to cross-examine Dr AD and ask him, for instance, whether his opinion might be different if he had certain other documents. To start with, the father could ask whether he does have certain documents.
It is even possible for the father to provide documents to the expert, provided it is done in a timely way during the course of cross-examination, for the expert to consider. But it is not, in my view and in the circumstances in this case in particular, a situation where this ICL could be said to be in contempt of this Court because there might be some situation arising whereby the ICL might not have sent every document that the father thinks should be sent to one or both of the experts. As I say, the application for contempt is dismissed.
The father’s application for leave to file a further Application for Contempt – against the ICL
The father has made an oral submission (application) seeking that the Court decide now whether or not to grant leave for him to be given permission to file a further application for contempt against the ICL. Leave is refused for the following reasons. It is inherently unfair to stand in the Court and seek the leave of the Court to file and serve a contempt application when we are now, in terms of the Court diary, supposed to be finishing the second day of a trial. Furthermore, it is, in my view, bordering on an abuse of the process of the Court to attempt to do so, so soon after an application in similar terms was dismissed. Admittedly, it was dismissed for particular reasons.
However, one of the matters I am taking into account in refusing the leave is, it having been explained to the Court now what is involved and noting it seems to be similar to an earlier application that was dismissed today, it seems to me that the leave should be refused for a further reason. Namely, it does not, to my mind, once again, come within the purview or within the law of contempt.
I just gave some reasons for judgment in relation to the application for contempt against the ICL, noting as I did that it would have been necessary to put on evidence that the ICL had acted in such a way that she was treating this Court with contempt. If the proposed application as framed by the father is in similar terms to the one that was dismissed earlier today (and I am working on the basis that it is – as the father said it was) – then again, the likelihood of success would be very low and this is another reason not to grant leave. Furthermore, I am particularly mindful of what the High Court had to say in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 (“Aon Risk”), where it was pointed out that the Court has to, when considering applications, whether they be applications for adjournment or, I apprehend, other applications brought at the time of a trial - the other litigants in the Court and it seems to me that, to entertain that application that the father is seeking would be to further delay the commencement of these proceedings. The application for leave to file a further contempt application against the ICL is dismissed.
The father’s application for adjournment of the trial
The father has applied for an adjournment of the trial. I asked the father if he had any evidence to support his application for an adjournment. The father told me he does not. But the father did say that, until recently, he had a lawyer, Mr AQ. But Mr AQ is no longer his lawyer and the father says, amongst other things, that he, the father, will be at a disadvantage because he will not be able to cross-examine the mother, because of the existence of a s 102NA order. That is not a sufficient reason to adjourn the trial. There are many instances in this jurisdiction now, including a trial I finished on Monday, where a parent has failed to take up the benefit of a s 102NA order and obtain legal representation via Legal Aid. It is not sufficient for the father to tell the Court from the bar table that he got some privileged advice from Mr AQ. It does not assist the Court in coming to a concluded view in relation to whether there is a proper basis for an adjournment.
The best I can apprehend in addition to that would be the father’s claims that have been well ventilated today in relation to the ICL allegedly not fulfilling her obligations concerning expert witnesses and so on. Again, once again, that is not a sufficient reason or any reason to adjourn the hearing. This matter was supposed to proceed to final hearing last August. It did not. It was listed for four days this week. Two days have gone by dealing with preliminary applications brought by the father at the eleventh hour, as it were. My view is that the Court has shown incredible patience and granted significant indulgences to the father over the course of the last two days in going through each of the applications that he brought, all of which were filed, I note, in the face of an order preventing their filing without the leave of the Court. The father was granted leave, of course, to proceed with an application for recusal, but that was heard yesterday, and I dismissed it today and gave reasons.
The father was granted leave to proceed with two contempt applications - one against the mother, one against the ICL. Both of those were dismissed today and reasons were provided. The father applies for an adjournment of the trial. I asked the father what the basis would be - but he has not been able to give me any proper basis for the adjournment, apart from the fact that he says he needs to get himself a lawyer, but my view is that he has had a sufficient opportunity to get himself a lawyer. The s 102NA order was made on 16 March 2021. Two years, the father has had, to get himself a lawyer. He had a lawyer. We do not know why the lawyer is no longer here. The father is unable to inform the Court – because he says that the information is privileged. That is a matter for the father. But the point is – there has been sufficient opportunity for the father to obtain legal representation.
Neither that reason nor any other so far put forward by the father would be a sufficient ground for the Court to adjourn the matter, noting as I do the principles stated by the High Court in Aon Risk. This decision may produce a sense of injustice in the father. But the Court needs to do justice not only to the father, but to the mother, the ICL, other litigants in the Court and, as submitted by Ms Hellewell for the ICL, it is in the best interests of the children for there to be finality to this parenting litigation.
Mr Wynn commented that Legal Aid Queensland does not provide a lawyer until three months before a final hearing. He may well be right about that. At the moment, I have no evidence before me as to what happened in those three months to explain why the Court would grant the father the indulgence to adjourn the proceedings. Three months ought to have been adequate time to get a lawyer, brief them and be ready for the hearing. There was a lawyer on board, Mr AQ. He is no longer on board for the father. That seems to be where the matter stands.
The application for adjournment is dismissed.
The father’s application for leave to proceed with an Application for the removal of the Independent Children’s Lawyer
Leave to proceed with this application is required by reason of Order 3 of the Order made on 15 August 2022. The difficulty for the father is that it is inherently unfair to file an application of this kind or seek to proceed with an application of this kind less than one week before the commencement of a trial that this family has been waiting for, for some significant period of time. It may well be that the father has his own reasons for being upset with the ICL. Some of the grievances may be legitimate, but I am not in a position to make a finding about that at this point in time.
Maybe I will be in such a position after a trial. It remains to be seen, but before I would even grant the father leave to bring an application to remove the ICL, he would need to point me to evidence of a compelling nature, or at least evidence to a standard that would convince the Court that it would be appropriate at this point in time to remove this ICL who has been in place for some years, primarily because, as I said in my reasons concerning the contempt application, the father is personally unhappy with the way the ICL has prepared the matter and conducted herself.
As I said earlier, it is very often the case that parents are upset with an ICL. That is not a good enough reason to remove an ICL. It may be that, as I said earlier, the ICL, through an advertence, or for some other reason, failed to give certain documents to certain people. Again, unless it is, first of all, proven that the events alleged actually occurred and secondly, unless it is proven that what occurred is so serious as to warrant removal, then an ICL would not normally be removed. All that might happen is an order made that the documents be sent to the experts, and then the Court would hear from them.
A lot of the matters that the father is complaining of about the ICL have been fully canvassed already today in the hearing of the applications which I granted the father leave to proceed with for contempt, and the father’s grievances outlined in his affidavit of 28 February 2023 are well known to me, because I have read this affidavit when dealing with the application for contempt. It’s only necessary for the Court to refer to those parts of the evidence necessary to dispose of matters by way of preliminary applications, and I have done that to the extent necessary. The father seems particularly upset with what he calls ‘current material non-disclosure issues’. He says the ICL has not responded when she should have. He says that the experts have not been given documents that they should have been given.
But the reality is that it seems to come back to personal grievances the father has with the ICL, and there is no evidence to establish a proper basis to remove this ICL, and it would be inherently unfair at this stage to even grant leave to proceed with the application, again, relying on the principles espoused in Aon Risk. The same goes for these other orders/applications sought by the father. For instance, it is not appropriate for the Court to be making interim parenting orders when we are here for a final hearing. The best thing that can happen for this family and for these children is for the trial to commence.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 8 March 2023
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