Fierro & Fierro (No 5)
[2022] FedCFamC1F 948
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fierro & Fierro (No 5) [2022] FedCFamC1F 948
File number(s): SYC 7639 of 2021 Judgment of: SMITH J Date of judgment: 5 December 2022 Catchwords: FAMILY LAW – Contempt applications – Standard for summary dismissal - Where there is no reasonable likelihood of success of any count of contempt – Where the applications are dismissed. Legislation: Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 10.09 Cases cited: Attorney-General v Wentworth (1988) 14 NSWLR 481
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries v Commissioner of Railways (1964) 112 CLR 125
In the Marriage of Tate (2002) 29 Fam LR 195; [2002] FamCA 356
Spencer v The Commonwealth (2010) 241 CLR 118
Division: Division 1 First Instance Number of paragraphs: 127 Date of hearing: 8 September 2022 Place: Sydney Counsel for the Applicant: The Applicant was self-represented The Respondents: The Respondents were excused The Independent Children's Lawyer: The Independent Children’s Lawyer was excused ORDERS
SYC 7639 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIERRO
Applicant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
5 DECEMBER 2022
THE COURT ORDERS THAT:
1.The Contempt Application filed 17 February 2022 is dismissed.
2.The Contempt Application filed 15 February 2022 is dismissed.
3.The Contravention Application filed 16 March 2022 is dismissed.
4.If the first respondent seeks a determination of costs on an interim basis they are to file an Application in a Proceeding in accordance with the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).
5.If no Application in a Proceeding for costs is filed by the first respondent then the first respondent’s costs of these Applications be reserved.
6.If the second respondent seeks a determination of costs on an interim basis they are to file an Application in a Proceeding in accordance with the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth).
7.If no Application in a Proceeding for costs is filed by the second respondent then the second respondent’s costs of these Applications be 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 Fierro & Fierro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J:
Introduction
Mr Fierro (“the applicant”) has filed two Applications for Contempt in child related proceedings concerning X, born 2008.
The applicant is also the applicant in the substantive proceedings. He is X’s paternal half-brother. He wants to have a relationship with X. X will be 15 soon. X does not want to have a relationship with the applicant.
The respondents to the Contempt Applications are X’s father, Mr A Fierro (“the father” or “the first respondent”), and X’s mother, Ms Bien (“the mother” or “the second respondent) (jointly “the parents”). The parents support X’s position.
The applicant and the parents entered into Consent Orders on 21 May 2021 that the applicant have no communication with X unless X wants that communication, or unless the parents agree in writing that it occur. The parents have not agreed that communication can occur contrary to X’s wishes.
It is in these circumstances that the applicant seeks to invoke the punitive powers of this Court to punish the parents. The parents have moved that both Contempt Applications be summarily dismissed as frivolous, vexation, an abuse of process, and or as having no reasonable likelihood of success (see Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (rule 10.09).
Summary Dismissal
The applicant, in his Outline of Submission filed 2 August 2022, submitted:
The principles for summary dismissal are well-established. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld hence the power to summarily dismiss is used sparingly. The respondents must show that it is clear, on the face of the applicant’s documents, that it lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious. If the applicant’s case appears weak and is likely to fail on that basis – it is nonetheless insufficient to warrant summary termination as even a weak case is entitled to the time of a court.
The applicant relied upon Spencer v The Commonwealth (2010) 241 CLR 118. I also note Dey v Victorian Railways Commissioners (1949) 78 CLR 62, General Steel Industries v Commissioner of Railways (1964) 112 CLR 125 and Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491.
The applicant is right to say that it is a serious matter to deprive a person of a hearing of a claim. The standard for summary dismissal is indeed high. The fact that a case is merely weak or likely to fail is insufficient to justify summary dismissal. With that in mind, for the reasons set out below, I am comfortably satisfied that applying the relevant standard to each count in each Contempt Application leads to the conclusion that the applicant’s case has no reasonable likelihood of success. Each Contempt Application should therefore be dismissed.
The child’s views
An Independent Children’s Lawyer (“ICL”) has been appointed to represent X’s interests in the substantive proceedings.
On 16 June 2022, the ICL wrote to the applicant, the father and the mother. The applicant tendered this letter (Ex 3) on the summary dismissal application. The letter was in the following terms:
I extend thanks for [Mr A Fierro] for facilitating my meeting with [X] on 8 June 2022.
[X] impresses as a mature 14 year old who expresses her views clearly. She engaged with me well and was thoughtful and considered in our discussions.
[X] has consented to me providing the following information to the parties:-
She is clear as to what the 21 May 2021 orders provide with respect to contact with [Mr Fierro]. She knows that she is able to contact him when and if she chooses and she said that if she wanted to contact him that she was able to on her phone.
She said that she had no reason to speak with [Mr Fierro] and that she would prefer no contact with him.
She said that she had received a gift from [Mr Fierro] and recalled it being $200. She said that she didn’t want gifts from [Mr Fierro] as it felt “weird” and she didn’t like it when she received it. She would prefer not to receive gifts in the future from [Mr Fierro].
As [X] presents as a mature and intelligent young person it is my preliminary view that the Court ought to give her views considerable weight.
I invite the parties to respect [X’s] views and to bring this litigation to an end.
X’s views as conveyed to the Court by the ICL are consistent with the parent’s evidence as to their understanding of X’s views.
The applicant’s case is premised on the Court finding that these are not in fact X’s views, or on inferring that if they are her views that they can only have been formed as a result of the parent’s denigrating the applicant.
Consent Orders - 21 May 2021
The Consent Orders of 21 May 2021 (‘the Consent Orders’), made in PAC 2535 of 2020 were entered into agreement by the applicant and both parents.
The Consent Orders allocate equal shared parental responsibility to the parents, with X to live with them or as agreed between them.
Relevantly the Consent Orders also state:
Communication between [X] and [Mr Fierro]
3. THAT [Mr Fierro] ("the Applicant") be restrained from communicating with [X] by either in person or by text message, mobile telephone, email, letter or any other form of communication unless as:-
(a) Otherwise as agreed in writing as between the parties; or
(b) If initiated by [X].
4. THAT Any communication initiated by [X] in accordance with order 3(b) above is only to be for a period of time whilst [X] consents to such communication and the Applicant must cease communicating with [X] if she requests him to do so.
5.THAT If communication is initiated by [X] in accordance with order 3(b) and 4 then, for the period of the communication:-
(a)the mother and father must do all things necessary to facilitate [X’s] communication with the Applicant including providing her with access to a mobile telephone with call credit at all times.
(b)the mother and father are not to interfere, prohibit, discourage or otherwise impede [X’s] communication with the Applicant.
6.THAT the Applicant is permitted to send gifts to [X] on special occasions, such as for Christmas and her birthday, provided that no correspondence is included in the gift other than a card stating who the gift is for and who the gift is from.
The Consent Orders also included restraints:
Restraints
7.THAT each party is hereby restrained from denigrating any of the other parties to or within the hearing of [X].
8.THAT each party is hereby restrained from discussing the content of the court proceedings with [X], in particular the allegations made by the Applicant, [Mr Fierro] as against [X’s] mother and father.
9.THAT each of the parties are restrained from threatening, harassing, abusing or assaulting any other party.
The Consent Orders are clear.
The starting point, at Order [3], is that the applicant is entirely restrained from communicating with X unless certain conditions are met.
Starting with X, Order [3(b)] gives X the power to decide whether or not to communicate with the applicant, even if the parents do not given their written agreement. X has a phone. She is aware that she can communicate with the applicant if, as and when she chooses to do so. She does not choose to do so. The applicant is aware of X’s expressed views and decision as communicated by the ICL.
Despite X’s age, the Consent Orders at Order [3(a)] also make provision for the parents, in the exercise of their parental responsibility, to enter into a written agreement with the applicant which would, on the face of the Consent Orders, require X to communicate with the applicant regardless of her wishes.
The evidence makes it clear that the parents do not want to, have not, and will not agree to require X to communicate with the applicant. On his own evidence the applicant is well aware of the parents’ views and that they will not give their consent. The Consent Orders do not require the parents to enter into such a written agreement. The Consent Orders do not require the parents to justify their reasons for the exercise of their parental responsibility. The Consent Orders do not require the parents to communicate with the applicant as frequently, and at such times as he requires, in order to allow him the opportunity to seek to persuade them to change their minds.
The applicant has filed two Contempt Applications levelling multiple charges against each of the parents because they have not acted to facilitate his communication with X contrary to her wishes and their views. He says that they are therefore in breach of the Consent Orders.
The applicant’s express submission is that the Consent Orders were formulated for his “benefit” and therefore must be interpreted in that light. As he has not obtained the outcome he desires, he therefore says the parents must be in breach of the Consent Orders and acting in contempt of Court.
The premise of the applicant’s case is incorrect. Firstly, consent orders are entered by the Court on the basis that they are in a child’s, here X’s, best interests. They are to be interpreted on that basis. Secondly, no reasonable interpretation of the Consent Orders, which are premised on the applicant being restrained from contacting X without permission, could lead to the conclusion that the Consent Orders were primarily intended to be for the applicant’s benefit, nor that they should be interpreted on the basis that they were intended to require the parents to give the applicant written consent to communicate with X contrary to both X’s and the parent’s wishes.
When the Consent Orders are properly construed the applicant’s evidence does not establish that the parents, or either of them, have breached the Consent Orders. That deals with the majority of the specific charges.
The remainder of the charges are assertions by the applicant that since the parents have said things or given sworn evidence that he does not accept as true, in particular that X does not wish to communicate with him, they must be lying and so committing perjury which he says is a contempt, or that by not facilitating his relationship with X they are committing contempt outside the orders.
Each charge of the applicant’s two Contempt Applications is misconceived and without merit or prospect of success.
The parents submitted that the applicant was merely bringing these charges to harass and intimidate them. It is not Contempt Applications must be dismissed.
Hearing
This matter is not in my docket. It came before me on 3 August 2022 for hearing of the applicant’s Contempt Applications, signed 11 and filed 17 February 2022 and filed 15 February 2022. The applicant also filed a Contravention Application on 16 March 2022 which was withdrawn, noting that the alleged contraventions were covered by the Contempt Applications in any event.
On 3 August 2022 the applicant represented himself, as did the father. The mother was legally represented. The father and the mother both made oral applications to the Court to dismiss the Contempt Applications summarily as frivolous, vexation, an abuse of process, and or as having no reasonable likelihood of success (see Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (Rule 10.09).
In the context of the terms of the consent orders, the evidence of X’s views and of the parents’ positions, I considered the prima facie case for summary dismissal to be strong. Accordingly, I determined that it was appropriate to hear the summary dismissal as a preliminary issue.
The applicant was provided with the opportunity to prepare and to be heard on that preliminary issue on 8 September 2022. On 8 September 2022, he provided additional evidence and written submissions to defend the oral applications to summarily dismiss his Contempt Applications.
In addition to his filed Contempt Applications, the applicant sought to rely upon a “Part D” filed 2 August 2022, that contained additional particulars of Contempt by way of amendment of the Contempt Application filed 15 February 2022. This was allowed as there was no prejudice to the parents and to deal with all issues in one hearing.
The applicant read his Affidavit filed 27 July 2022, and his consolidated Affidavit filed 7 September 2022. The applicant further relied upon his 31 pages of Written Submissions, dated 6 September 2022 (aide memoire 1).
The applicant tendered various documents. A certified translation of correspondence between the applicant and the Country G Court (‘the Country G Court’) dated 9 and 11 March 2022, and correspondence from this Court’s City J Registry to the Country G Court, dated 11 July 2022 requesting copies of any judgments, Orders and evidence concerning Mr M (date of birth unknown) and the father are Exhibit 1. A series of email correspondence between the applicant and the father dated 24 May 2020, and correspondence between the applicant and mother dated 5 July 2020, 17 July 2020, and 21 September 2020 are Exhibit 2. The ICL’s letter dated 16 June 2022, set out above, is Exhibit 3. Screen shots of SMS correspondence (undated) said to be between the applicant and the mother are Exhibit 4. Correspondence between the applicant and the Supreme Court of H Region concerning the prosecution of a Mr N for serious criminal offences perpetrated against Ms B is Exhibit 5, admitted noting the relevance was not clear. Images of the applicant and X, but not the written references to dates, are Exhibit 6.
Standard of proof
As the applicant brings Contempt Charges he bears the onus of proving each factual element of each charge to the criminal standard of “beyond reasonable doubt” (In the Marriage of Tate (2002) 29 Fam LR 195; [2002] FamCA 356).
Having considered the applicant’s evidence at its highest, it fails to reach the criminal standard of persuasion to establish contempt in relation to each alleged charge.
17 February 2022 appliction — Contempt
Contempt Charge I
The applicant charges that, from 22 May 2021 to date of filing the application, the father acted in contempt of this court to the extent that he:
contumaciously, deliberately or recklessly and without reasonable excuse made himself and the child not-contactable by any medium, thereby violating order 1 of the court's order of 21 May 2021, particularly clauses 3-5 of Exhibit A of Order 1 made on 21 May 2021 (Affidavit in support 10 Feb 2022, [3]).
The Consent Orders restrain communication without permission from the parents or X. The parents will not give their permission. The father is not required to make himself available to communicate with the applicant, whenever and however often the applicant determines, in order to give the applicant the ongoing opportunity to persuade the father to change his mind.
X does not want to communicate with the applicant. She has a phone and knows that she can contact the applicant if she chooses to. She is not relevantly unavailable.
The applicant says that when he called X’s phone it rang. He seeks the drawing of a necessary inference is that this must have been the father’s fault. Apart from the fact that if the applicant rang X’s phone without consent that may have been a breach of the Consent Orders by the applicant, the non-answering of X’s phone when called by the applicant is equally consistent with X’s stated position of not wanting to speak with the applicant.
Taking the applicant’s evidence at it’s highest, and applying the criminal standard of proof, there is no reasonable likelihood of success on the charge of contempt. I dismiss the charge.
Contempt Charge II
The applicant charges that, from 21 May 2021 to the date of filing the application, the father acted in contempt of this Court to the extent that he:
contumaciously, deliberately or recklessly and without reasonable excuse denigrated the applicant to the child by, inter alia, instilling fear into the child by communicating to the child that the applicant is attempting to send the child's parents to prison thereby violating clause 7 of Exhibit A, Order 1 (Affidavit in support 10 Feb 2022, [4]).
The evidence relied upon by the applicant, which is that X does not wish to communicate with him and has expressed fears of him, from which he seeks to draw the inference that this must be because of the father’s conduct, does not meet the necessary criminal standard to establish a breach of the non-denigration orders. There is no reasonable likelihood of success. I dismiss this charge.
Contempt Charge III
The applicant charges that on 23 July 2021, the father acted in contempt of this Court to the extent that he:
contumaciously, deliberately or recklessly and without reasonable excuse sent or caused to have sent an SMS message from the child's phone to the applicant's nephew stating the child does not want to be contacted by the applicant thereby violating clause 7 of Exhibit A, Order 1 (Affidavit in Support 10 Feb 2022, [5].
The evidence does not meet the necessary criminal standard to establish that the parents or either of them sent a message from X’s phone. Given X’s expressed view, and in the context of her ongoing involvement in these proceedings by the applicant contrary to her wishes, there is no basis for an inference that any message sent from X’s phone to another relative stating that X does not want to be contacted by the applicant must have been sent, or caused to be sent, by the father.
There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge IV
The applicant charges that on 4 February 2022, the father acted in contempt of this Court to the extent that he:
contumaciously, deliberately or recklessly and without reasonable excuse asserted, the child does not want to speak with the applicant; the child does not know the applicant; the child is afraid of the applicant; and the child gets anxiety when speaking with the applicant thereby violating Clause 7 of Exhibit A (Affidavit in Support 10 Feb 2022, (61).
The applicant’s evidence is that this is what the father said to him. That does not involve a breach of the Consent Orders for non-denigration. Accepting the applicant’s evidence that the father said this to him, it is no more than the father’s position before the Court. To the extent there is evidence of X’s views it is consistent with them. There is no evidence to the criminal standard that would establish contempt.
There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge V
The applicant charges that on 1 September 2020, the father acted in contempt of this Court to the extent that he:
filed false evidence with the court that the child is afraid, pressured or intimidated by the applicant in direct contrast to evidence given by the child to the ICL. The false evidence was given by sworn affidavit and therefore constitute perjury (Affidavit in Support 10 Feb 2022, [7]).
The father has sworn an affidavit which sets out his evidence. To the extent it is available X’s evidence tends to support the father evidence. Even if the father’s opinion is not ultimately accepted as completely correct, that does not establish that the opinion is not genuinely held.
There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge VI
The applicant charges that on 1 September 2020, the father was in contempt of this Court to the extent that he:
filed false evidence denying the offence perpetrated contrary to overwhelming evidence (Affidavit in Support 10 February 2022, [8]).
The applicant says that the father was convicted of offences in Country G. He said in oral submissions that when he gets evidence from the Country G Court it will establish his case. He concedes he has no evidence of such a conviction at present and cannot prove the charge.
There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge VII
The applicant charges that on 1 September 2020, the father acted in contempt of this Court to the extent that he:
filed false evidence asserting the applicant is estranged from his family for 10 years contrary to his own evidence (Affidavit in Support 10 Feb 2022, [9]).
The father has sworn an affidavit which sets out his evidence. The fact that this is in contest does not make it a contempt.
There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge VIII
The applicant charges that in late 2019, the father acted in contempt of this Court to the extent that he:
extorted the applicant by holding the child at a [nearby] Shopping Centre […] stating the child would only be permitted to attend the applicant's […] University graduation if FCC Proceedings No. PAC6043/2019 was dropped (Affidavit in Support 10 Feb 2022, [10]).
This was prior to the Consent Orders. There is no allegation of a breach of any other Court order. In circumstances where the father had parental responsibility, even if established, this is not sufficient to establish contempt in this case. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge IX
The applicant charges that on more than one occasion, including on 12 December 2020, the father acted in contempt of this Court to the extent that he:
threatened the applicant multiple times he would not see or speak to the child or her mother if the FCC proceedings above were not withdrawn (Affidavit in Support 10 Feb 2022, [11]).
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge X
The applicant charges that in around May of 2020 the father acted in contempt of this Court to the extent that he:
executed the threats stated in the previous paragraph by halting communication between the applicant and the child.
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge XI
The applicant charges that on 10 February 2020 the father acted in contempt of this Court to the extent that he:
violated clause 3 preventing communication between the applicant and the child despite the mother's express permission in writing.
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish contempt. There is no reasonable likelihood of success. I dismiss the charge.
15 February 2022 application — Contempt
Contempt Charge (i)
The applicant charges that, on 4 April 2021, the mother acted in contempt of this Court to the extent that she:
filed false evidence in these proceedings denying a serious offence took place in discordance with her own admissions filed in evidence and staying silent for 1 year and thereby interfered with the administration of justice and committed perjury.
The mother has filed sworn evidence. The applicant says that evidence is false. There is insufficient evidence to establish perjury or other conduct amounting to contempt to the criminal standard.
There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge (ii)
The applicant charges that, on 4 April 2021, the mother acted in contempt of this Court to the extent that she:
filed false evidence, inter alia, that there is no relationship between the applicant and the child and that the applicant is a threat to the child in contradistinction to her own admissions filed in evidence, and such was material, thereby interfering with the administration of justice and committing perjury.
The mother filed sworn evidence of her opinion based on her stated observations. Even if ultimately found to be incorrect there is insufficient evidence to establish that the mother’s opinion was not genuinely held. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge (iii)
The applicant charges that, on 4 April 2022, the mother acted in contempt of this Court to the extent that she:
filed false evidence as to the true relationship between the applicant and the second respondent with various claims of threat and fearing of life, and such was material, despite personal admissions in evidence and therefore interfered with the administration of justice and amounted to perjury.
The mother filed her sworn evidence. Even if not ultimately accepted, there is insufficient evidence to establish a contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge (iv)
The applicant charges that, on 4 April 2021, the mother acted in contempt of this Court to the extent that she:
filed false evidence asserting, inter alia, the child does not want to communicate with the applicant and the applicant makes the child feel uncomfortable and the applicant is a threat to the child. Such assertions being material, therefore the second respondent interfered with the administration of justice and committed perjury.
For reasons noted above there is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge (v)
The applicant charges that, from the 21 of May 2021 to the date of filing this Application, the mother acted in contempt of this Court to the extent that she:
contumaciously, deliberately or recklessly and without reasonable excuse made herself and the child not-contactable by any medium, thereby violating order 1 of the court's order of 21 May 2021, particularly clauses 3-5 of Exhibit A of Order 1 made on 21 May 2021.
See my comments concerning Contempt Charge I in the Contempt Application filed 17 February 2022 above. This is the same charge against the mother as against the father dealt with there.
For the same reasons, there is no reasonable likelihood of success. I dismiss the charge.
2 August 2022 additional charges – First Respondent
Contempt Charge 1 — “THREAT AND EXTORTION”
The applicant charges that the father acted in contempt of this Court to the extent that:
On 15 May 2019 at 17:35 and 17:37 the first respondent threatens the applicant via SMS from his personal mobile number he will never see the child and should forget the child if proceedings PAC437/2020 are not discontinued.
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 2 — “THREAT AND EXTORTION”
The applicant charges that the father was in contempt of this Court in that:
On 24 May 2019, the first respondent threatens the applicant via telephone call that even if court orders are obtained the child will not want to speak with the applicant because ‘anyone that has a problem with me has a problem with [X]”.
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 3 — “THREAT AND EXTORTION”
The applicant charges that the father was in contempt of this Court to the extent that:
[In late] 2019, the first respondent threatens the applicant via SMS that the child and the second respondent are not going to be at the applicant’s Graduation Ceremony.
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 4 — “THREAT AND EXTORTION”
The applicant charges that the father was in contempt of this Court to the extent that:
[In late 2019], the first respondent threatens the applicant via SMS from his personal mobile phone number that the child and second respondent want nothing to do with the applicant because proceedings PAC437/2020 were not dropped.
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 5 — “THREAT AND EXTORTION”
The applicant charges that the father acted in contempt of this Court insofar as that:
[In late 2019], the first respondent threatens the applicant from his personal mobile number that the child and the second respondent will not go to the Graduation Ceremony unless the applicant cuts that rubbish – PAC437/2020 proceedings – and says to put him in court.
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish extortion amounting to contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 6 — “THREAT AND EXTORTION”
The applicant charges that the father acted in contempt of this Court to the extent that:
[In late 2019], the first respondent holds the child hostage and scares her at a [nearby] Shopping Centre saying that the child can only attend if the applicant drops PAC437/2020 via the second respondent’s personal mobile number.
This was prior to the Consent Orders. In the circumstances, even if established, this is not sufficient to establish contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 7 — “ESTRANGED”
The applicant charges that the father has acted in contempt of this Court to the extent that:
On 1 Sep 2021, the first respondent files false sworn evidence that the applicant is estranged [25]-[26] from him and his family and does not have contact with any of us.
(Emphasis in the original)
The father has sworn his evidence. Even if ultimately found to be incorrect, there is insufficient evidence to establish conduct which would amount to a contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 8 — “I AM NOT A VIOLENT MAN”
The applicant charges that the father acted in contempt of this Court to the extent that:
On 1 Sep 2021, the first respondent files false sworn evidence [73] that he is not a violent man and has never physically harmed his children.
(Emphasis in the original)
See the comments regarding charge 7 immediately above. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 9 — “FALSE TESTIMONY”
The applicant charges that the father acted in contempt of this Court to the extent that:
On 6 May 2022, the first respondent gave false testimony in court to the Deputy Chief Judge McClelland that he had no criminal convictions for child abuse and that the applicant had invented those allegations and abusing the court process. The first respondent further stated his son [Mr M] was never removed from his custody.
(Emphasis in the original)
See the comments elsewhere about this issue. For the same reasons there is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 10 — “FALSE TESTIMONY”
The applicant charges that the father was in contempt of this Court to the extent that:
On 9 June 2022, the first respondent gave false testimony in court told the Chief Justice Alstergren he had no criminal convictions for child abuse and that his son was never removed from his custody and that the applicant had invented those allegations and is abusing the court process.
(Emphasis in the original)
See the comments about charge 10 immediately above. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 11 — “FALSE TESTIMONY”
The applicant charges that the father acted in contempt of this Court to the extent that:
On 15 June 2022, the first respondent gave false testimony in court told Justice McGuire that the applicant “invented the court files and that it is unbelievable”.
(Emphasis in the original)
See the comments above. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 12 — “CHILD ABUSE and CONTRAVENTION BY CHARACTER ASSASSINATION”
The applicant charges that the father acted in contempt of this Court insofar as:
The first respondent wilfully and deliberately circumvented the Court’s orders of 21 May 2022 by virtue of a wilful and deliberate, calculated and systematic emotional and psychological abuse campaign of denigration poisoning the child as against the applicant in contravention to Clause 7. In line with the first respondent’s threats and promises (contempts 1-6 above, “anybody got a problem with me has a problem with [X]”. The result is that the child became aggrieved, annoyed and outright hostile to the applicant ([X] SMS of 18 Oct 2021 at Exhibit [X1] at Tab 5 p 74 and ICL letter of 16 June 2022 (tendered)).
The applicant’s assertion that an inference must necessarily be drawn that X’s views necessarily result from a campaign of denigration are not supported. The applicant’s assertions do not reach the evidentiary standard required to establish a contempt. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 13 — “FALSE EVIDENCE PERJURY”
The applicant charges that the father acted in contempt of this Court to the extent that:
On 1 Sep 2021, the first respondent filed false sworn evidence at [45]-[49], [62]-[63] that the child is afraid, pressured or intimidated by [Mr Fierro] and does not want to speak to [Mr Fierro] (affidavit of [MAF] 1 Sep 2021).
(Emphasis in the original)
See the comments elsewhere about the father’s sworn evidence. I note that charge 12 above is premised on the basis that X does express hostility to the applicant. The contested issue is whether X’s views result from her experiences of the applicant or solely as a result of a campaign of denigration by the parents. There is no reasonable likelihood of success of establishing contempt. I dismiss the charge.
Contempt Charge 14 — “FALSE EVIDENCE PERJURY — LIVING ARRANGEMENT”
The applicant charges that the father acted in contempt of this Court to the extent that:
The first respondent says at [20] We have remained extremely amicable and continue to live under the same roof…living together means we are better off financially as well (Affidavit of [MAF] 1 Sep 2020 [20]).
See the comments elsewhere about the father’s sworn evidence. There is no reasonable likelihood of success. I dismiss the charge.
2 August 2022 additional charges – Second Respondent
Contempt Charge 1 — “FALSE EVIDENCE PERJURY”
The applicant charges that the mother acted in contempt of this Court to the extent that:
On 8 April 2021, the second respondent filed false sworn evidence [14] as to the relationship between the child and the applicant falsely claiming there is no relationship, “[X] does not have a relationship with [Mr Fierro]…only seen [Mr Fierro] approximately 4 times in her life and spoken with him on phone 6 times”. See below at [5] On 7 March 2022 the second respondent impliedly accepts the existence of the relationship.
(Emphasis in the original)
The mother has filed her sworn evidence. It is contested. To the extent to which there is evidence of X’s views, as set out by the ICL and as implicitly accepted by the applicant in the formulation of his charges and case that X is hostile to him, that evidence is consistent with the mother’s evidence. Even if the mother’s evidence is not ultimately accepted that does not mean it was subjectively false. Taking the applicant’s evidence at it’s highest, and applying the criminal standard, there is no reasonable likelihood of success of a conviction for contempt. I dismiss the charge.
Contempt Charge 2 — “FALSE EVIDENCE PERJURY”
The applicant charges that the mother acted in contempt of this Court to the extent that:
On 8 April 2021, the second respondent filed false sworn evidence [23],[27] and [32] that there is impliedly no relationship between the applicant and the second respondent claiming she is in fear of life and terror by the applicant, “I am terrified of [Mr Fierro]…I am living in fear of this man. I no longer sleep well and I am terrified when I leave the house or when my phone rings…[Mr Fierro] causes me to feel afraid, threatened and in fear of my life” (Affidavit of [Ms Bien] 8 April 2021 [27] [32]).
(Emphasis in the original)
See the comments above about the mother’s sworn evidence. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 3 — “FALSE EVIDENCE PERJURY”
The applicant charges that mother acted in contempt of this Court to the extent that:
On 7 March 2022, the second respondent filed false evidence Notice of Risk 7 Mar 2022, that she is living in absolute terror and scared to go in public and cannot stand near the applicant in court.
(Emphasis in the original)
See the comments above about the mother’s sworn evidence. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 4 — “FALSE EVIDENCE PERJURY”
The applicant charges that the mother acted in contempt of this Court to the extent that:
On 7 March 2022, the second respondent filed further false evidence re-iterating the falsities of her previous affidavit of 8 April 2021, that the child [15] does not want to speak to the applicant and that the applicant makes her feel uncomfortable. At [4] “They do not have a close relationship”. At [14] [X] does not have a close relationship with [Mr Fierro]. I estimate that [X] has only seen [Mr Fierro] approximately 4 times in her life and spoken with him on the phone approximately 6 times in her life”.
(Emphasis in the original)
See the comments above about the mother’s sworn evidence. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 5 — “CONTRAVENTION BY AIDING AND ABETTING THE FIRST RESPONDENT”
The applicant charges that the mother acted in contempt of this Court to the extent that:
The second respondent wilfully and deliberately breached the entire essence of the Court orders of 21 May 2021, aiding and abetting the first respondent in its criminal design ensuring the applicant would not communicate with or see the child despite her written and verbal consent in line with the first respondent’s threats and promises. The second respondent, despite her own desire to integrate the applicant into her life and the life of the child as recent as 6 -13 Feb 2022, wilfully and deliberately assisted the first respondent fulfil his threats and promises that the applicant would never see or speak to the child ever again.
The charge is based on the applicant’s submission that the “essence” of the Consent Orders was that they were to be interpreted as being for his “benefit” rather than X’s and so designed to ensure that he communicated with X. That submission is rejected for reasons set out elsewhere. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 6 — “CHILD ABUSE and CONTRAVENTION BY CHARACTER ASSASSINATION”
The applicant charges that the mother acted in contempt of this Court insofar as:
The second respondent wilfully and deliberately denigrated the applicant to the child furthering the first respondent’s well-documented threats and promises resulting in the child becoming aggrieved, annoyed and outright hostile to the applicant (ICL letter of 16 June 2022 (tendered) and [X] SMS of 18 Oct 2021 at Exhibit [X1] at Tab 5 p 74)).
The charge is premised on there being a necessary inference that X’s expressed views arise as a result of the parent’s denigrating the applicant. The applicant cannot establish that to the criminal standard. There is reasonable likelihood of success. I dismiss the charge.
Contempt Charge 7 — “FALSE EVIDENCE PERJURY”
The applicant charges that the mother acted in contempt of this Court to the extent that:
On 8 April 2021, the second respondent filed false sworn evidence [15] that the applicant makes the child feel very uncomfortable; the applicant asks inappropriate questions about her father; and that the second respondent would need to force the child to speak to the applicant and that [Mr Fierro] is a threat to [X] at [28].
See the comments above about the mother’s sworn evidence. There is no reasonable likelihood of success. I dismiss the charge.
Contempt Charge 8 — “FALSE EVIDENCE PERJURY — LIVING ARRANGEMENT”
The applicant charges that the mother has acted in contempt of this Court insofar as:
The second respondent falsely states, “We have remained living under the same roof so that we can co-parent [X]”.
(Emphasis in the original)
See the comments above about the mother’s sworn evidence. There is no reasonable likelihood of success. I dismiss the charge.
Conclusion
Applying the high standard for dismissal without Trial I find that, taken at it’s highest the applicant’s evidence in respect of each charge against each respondent in each Contempt Application has no reasonable likelihood of success of establishing a contempt. I find that it is therefore appropriate and necessary that each charge be dismissed.
There being no charge remaining in either application I dismiss the Contempt Applications filed 17 February 2022 and 15 February 2022. I order the dismissal, by consent, of the Contravention Application filed 16 March 2022.
I understand that there are outstanding costs orders against the applicant and that they have not been paid. A further costs order in either parent’s favour in respect of these Contempt Applications or the Contravention Application at this stage may be illusory. Nevertheless, given my findings, if either the father or the mother wish to be heard on the question of costs at this stage they may file an Application in a Proceeding in accordance with the Rules. If no such application is filed the father costs and the mother’s costs respectively of these Applications are reserved. I note that prima facie the father and the mother would be entitled to indemnity costs.
I enter orders accordingly.
I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 5 December 2022
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