Fierro & Fierro (No 7)
[2023] FedCFamC1A 24
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Fierro & Fierro (No 7) [2023] FedCFamC1A 24
Appeal from: Fierro & Fierro (No 5) [2022] FedCFamC1F 948 Appeal number: NAA 263 of 2022 File number: SYC 7639 of 2021 Judgment of: AUSTIN, WILLIAMS & HOWARD JJ Date of judgment: 14 March 2023 Catchwords: FAMILY LAW – APPEAL – Contempt – Where the primary judge dismissed all contempt counts alleged against the respondents – Error of law – Where the primary judge conflated two different legal tests when dismissing the contempt counts – Where allegations of contempt are not amenable to application of the summary dismissal principles which apply in conventional civil proceedings – Where the primary judge erred at law – Where there was no miscarriage of justice as the dismissal orders are plainly correct for other reasons and should not be disturbed – Appeal dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the proposed evidence does not make it clear how or why the primary judge erred by dismissing the contempt counts against the respondents – Application dismissed.
Legislation: Crimes Act 1914 (Cth) ss 35, 36
Evidence Act 1995 (Cth) Ch 3
Family Law Act 1975 (Cth) Pt VII, ss 69ZM, 69ZT, 112AP
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 45, 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09, 11.70, 11.71
Criminal Procedure Act 1986 (NSW) ss 17, 18
Cases cited: Australian Securities and Investments Commission v Healey (2011) 196 FCR 291; [2011] FCA 717
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; [2015] HCA 21
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48
Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
European Asian Bank AG v Wentworth (1986) 5 NSWLR 445
Fierro & Fierro (No 4) [2022] FedCFamC1A 208
Fierro & Fierro (No 4) [2022] FedCFamC1F 687
Fraser v The Queen [1984] 3 NSWLR 212
House v The King (1936) 55 CLR 499; [1936] HCA 40
James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347; [1986] FCA 41
Keeley v Brooking (1979) 143 CLR 162; [1979] HCA 28
Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; [2009] FCAFC 117
May v O’Sullivan (1955) 92 CLR 654; [1955] HCA 38
Mead v Mead (2007) FLC 93-327; [2007] HCA 25
Re Colina; Ex parte Torney (1999) 200 CLR 386; [1999] HCA 57
Registrar of the Court of Appeal v Collins [1982] 1 NSWLR 682
Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28
New South Wales v Beck [2013] NSWCA 437
Tate v Johnson (1953) 70 WN (NSW) 302
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Zanetti v Hill (1962) 108 CLR 433; [1962] HCA 62
Number of paragraphs: 80 Date of hearing: 2 March 2023 Place: Heard in Melbourne (via video link), delivered in Newcastle The Appellant: Litigant in person The First Respondent: Litigant in person The Second Respondent: Litigant in person The Independent Children's Lawyer: Did not participate ORDERS
NAA 263 of 2022
SYC 7639 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FIERRO
Appellant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN, WILLIAMS & HOWARD JJ
DATE OF ORDER:
14 March 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 January 2023 is dismissed.
2.The appellant’s oral application to adduce further evidence in the appeal is dismissed.
3.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fierro & Fierro (No 7) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & HOWARD JJ:
On 5 December 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) dismissed two contempt applications brought by the appellant against the respondents (Orders 1–2), dismissed a contravention application brought by the appellant against the respondents (Order 3), and made procedural orders concerning the manner in which any ancillary costs applications between the parties in respect of the dismissed applications might be finalised (Orders 4–7).
This appeal ostensibly lies from all those orders but, in truth, it only really lies from the decision to dismiss the contempt applications.
The primary judge did fall into error by incorrectly applying legal principles when dismissing the contempt applications but, since the dismissal orders are so plainly correct for other reasons, they should not be disturbed. The appeal will be dismissed.
background
The appellant and the respondents formerly litigated their dispute over a teenage child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), which litigation was finalised by consent orders made between them on 21 May 2021.
The appellant is the child’s older half-sibling. The respondents are the child’s parents.
The first respondent is the appellant’s father and the second respondent is his step-mother.
The orders made in May 2021 provide for the child to live with the respondents and for them to have parental responsibility for her.
The orders make no specific provision for any physical interaction between the appellant and the child, but do regulate their communication by:
(a)restraining the appellant from communicating with the child, unless either she initiates it or the respondents agree to it; and
(b)permitting the appellant to send gifts to the child, but only on special occasions and without any attendant correspondence.
In October 2021, the appellant commenced fresh proceedings seeking to revise the consent orders made several months before in May 2021. His application was later dismissed in September 2022, because he failed to demonstrate any change of circumstances to warrant any such revision (Fierro & Fierro (No 4) [2022] FedCFamC1F 687). His appeal from that decision was dismissed in December 2022 (Fierro & Fierro (No 4) [2022] FedCFamC1A 208). The appellant has since filed an application in the High Court of Australia seeking special leave to appeal from the Full Court’s decision, but that application is yet to be entertained.
While the parenting proceedings were pending, the appellant filed two contempt applications against the respondents – one on 15 February 2022 and the other on 17 February 2022. Both were dismissed by the primary judge on 5 December 2022 (Orders 1–2).
In addition, the appellant filed a contravention application against the respondents on 16 March 2022. It too was dismissed on 5 December 2022 (Order 3), but with the appellant’s consent, as he intended its withdrawal because the alleged contraventions overlapped the contempt counts (at [29] and [125]).
The appellant’s frustration about his lack of personal interaction with the child was the apparent genesis for the contempt and contravention applications, though it was not in doubt the child openly expressed her desire not to see or communicate with him. In evidence before the primary judge was a letter written by the Independent Children’s Lawyer (“the ICL”) to the parties on 16 June 2022 explaining the child’s express wishes in these terms (at [10]):
…[the child] knows that she is able to contact [the appellant] when and if she chooses…
She said that she had no reason to speak with [the appellant] and that she would prefer no contact with him.
…She said that she didn’t want gifts from [the appellant]…She would prefer not to receive gifts in the future from [the appellant].
While it was not in doubt the child did not want to see or speak with the appellant, the reason why she felt that way was contentious. The appellant alleged the respondents intentionally destroyed the child’s relationship with him, whereas the respondents alleged her views were genuine and the product of her own experience.
The antipathy between the appellant and respondents runs very deep. The primary judge said this in the reasons for judgment about the parties’ estrangement, the accuracy of which is not in doubt:
21.The evidence makes it clear that the [respondents] do not want to, have not, and will not agree to require [the child] to communicate with the [appellant]. On his own evidence the [appellant] is well aware of [the respondents’] views and that they will not give their consent. …
the appeal
Scope of the appeal
The appellant was permitted to rely upon the Amended Notice of Appeal he filed on 27 February 2023 – just days before the appeal hearing – because the amended grounds correlated with those addressed in his original Summary of Argument filed in December 2022.
It is asserted in the Amended Notice of Appeal (as it was in the original Notice of Appeal) that the appeal is brought from all orders made on 5 December 2022, but that cannot be correct.
Orders 4, 5, 6 and 7 are merely procedural directions about the manner in which any future costs applications between the parties will be determined. Those orders do not decide anything and so do not amount to a “judgment” from which an appeal competently lies (Driclad Pty Ltd v Commissioner of Taxation (1968) 121 CLR 45 at 64).
Order 3, dismissing the contravention application filed on 16 March 2022, was made with the appellant’s consent. None of the grounds of appeal relate to that dismissal order. In any event, the order was superfluous because another order was previously made by the primary judge on 20 July 2022 in these terms, from which there was no appeal:
1.The Contravention Application filed by the [appellant] on 16 March 2022 is withdrawn and is dismissed by consent, subject to the question of costs.
Orders 1 and 2 dismiss the two contempt applications and are the only orders to which the grounds of appeal are directed.
An apparent misunderstanding between the primary judge and the appellant needs to be identified and resolved at this point. On 2 August 2022, the appellant filed an amended schedule of the multiple contempt counts he alleged against the respondents. His Honour understood the schedule was intended to supplement the counts within the two contempt applications (at [33]), but the appellant confirmed in the appeal that the amended schedule was actually intended to substitute for the original counts in the two contempt applications.
The appellant asserted this in his Summary of Argument in the appeal:
12.The Part D amendment were not “Additional Charges” they were the only contempt counts that were pressed – Contempts 1-14 (First Respondent) and Contempts 1-8 (Second Respondent). The Part D charge sheet reflected in the submission of 6 September 2022 comprise the entirety of the contempt case.
(Appellant Summary of Argument filed 7 December 2022)
Accepting the appellant is correct, the primary judge misunderstood the situation, though it must then follow that the primary judge’s findings in respect of the original counts of contempt contained within the two filed applications are now irrelevant to the disposition of the appeal (at [38]–[79]). It can only be the findings in respect of the substitute counts of contempt which are now under challenge (at [80]–[123]).
In support of the appeal, without objection by the respondents, the appellant relied upon his Summary of Argument filed on 7 December 2022, together with the supplementary written submissions he filed on 24 February 2023.
The day before the appeal hearing, the respondents furnished to the appeal registrar an affidavit they purported to jointly swear or affirm on 1 March 2023. It was not filed, but had been served upon the appellant. The respondents sought to rely upon it in the appeal. The appellant objected and it was rejected. The respondents were ordered by the appeal registrar to file and serve their Summaries of Argument by 13 February 2023, but neither did so. They could not expect to have taken into account an affidavit comprising 85 pages of commentary and miscellaneous documents which lacked any ostensible relevance to the specific grounds of appeal.
Appellant’s applications to adduce further evidence in the appeal
By an Application in an Appeal filed on 12 January 2023, the appellant seeks leave to adduce further evidence in the appeal. The application itself is unspecific about the nature of the evidence the appellant wants to adduce, but it is accompanied by the appellant’s affidavit filed on 12 January 2023. Inferentially, the proposed further evidence is the text of, and the annexures to, that affidavit.
By way of summary, the proposed further evidence comprises:
(a)several audio files recording conversations between the appellant and a relative of the second respondent, which the appellant recorded between September and November 2022 (and the transcriptions thereof) – being after the contempt hearing in September 2022, but before the pronouncement of judgment in December 2022;
(b)commentary by the appellant summarising his perception of the nefarious way in which the respondents conducted the parenting proceedings against him, which he believes unfairly portrayed him as a danger to the child, shows the respondents’ breach of court orders by their “mass denigration” of him, and demonstrates the first respondent’s “prevalent coercive control which is a form of family violence”; and
(c)commentary by the appellant about some supposedly significant events involving the parties since “late 2019”.
The appellant deposed as follows in respect of the relevance and utility of the proposed further evidence:
38.The audio/transcription evidence makes it clear that the contempt proceeding should not have been summarily dismissed as there is an arguable case and it warrants a trial to examine the mischief that the respondents have perpetrated on this court, on the appellant and on [the child].
39.Accordingly the appellant seeks the audio and transcription material is adduced in the substantive appeal to further demonstrate an arguable case that the respondents are in contempt in the manner submitted in the appellant’s submission to the court below of 6 September 2022.
(Affidavit of the appellant filed 12 January 2023) (Emphasis in the original)
The application to adduce the further evidence is dismissed. Contrary to the appellant’s belief, the proposed evidence does not make it clear how or why the primary judge erred by dismissing the contempt counts against the respondents. The evidence does no more than underscore the antipathy which continues to prevail between the parties.
All of the counts prosecuted against the respondents alleged their contempt in specific ways on certain dates in 2019, 2021 and 2022. The counts were all summarily dismissed by the primary judge because they could not be sustained. The essential question in the appeal is whether the decision to summarily dismiss the counts on the strength of the evidence voluntarily proffered by the appellant was correct or erroneous. That question is answered by legal analysis. No amount of additional generic evidence of the respondents’ alleged contumely could help establish appealable error by the primary judge.
Even if additional evidence would be of use to the appellant, the further evidence he proposes to adduce would not be permitted for two reasons. First, it falls foul of the admissibility rules found within Ch 3 of the Evidence Act 1995 (Cth), which rules applied to the evidence adduced at first instance and also apply in this appeal because they are not “child-related proceedings” under Pt VII of the Act (ss 69ZM and 69ZT(1)). The evidence almost entirely comprises hearsay, opinions and conclusions. Secondly, the evidence is little more than partisan advocacy, would certainly be controversial, and lacks probative value (CDJ v VAJ (1998) 197 CLR 172 at [114], [115], [136] and [137]).
During the appeal hearing, the appellant made an oral application to adduce as further evidence in the appeal paragraphs 14(ii), 25, 29 and 40 of the respondents’ affidavit sworn or affirmed on 1 March 2023 – being the affidavit upon which the respondents had wanted to rely, but to which he had objected. The appellant’s oral submissions in respect of the asserted relevance of those paragraphs failed to engage the principles discussed in CDJ v VAJ, in which case his application to adduce those paragraphs as further evidence is dismissed.
With the respondents’ consent, the appellant was permitted to tender as further evidence in the appeal a document comprising three pages containing extracts of what appear to be text messages between the appellant and a third person (Exhibit A). The appellant contended the exhibit relates to a single count of contempt prosecuted against the first respondent, which was dismissed (at [94]–[95]). The evidence makes no difference to the result for the reasons explained under Ground 1.
Ground 1
This ground contends the primary judge fell into legal error by applying the wrong test when determining to dismiss the contempt applications. It contends:
Improper application of the common law summary dismissal test.
In support of this ground, the appellant submitted:
14.… The primary judge consistently re-iterates that the contempt allegations must be established to the criminal standard throughout the judgment (noting the stage in proceedings). It is submitted that the primary judge erred as whilst undoubtedly the standard of proof to found a contempt charge is beyond reasonable doubt such a standard would necessarily apply at a substantive hearing following the calling of witnesses rather than on an interlocutory hearing for summary dismissal. The applicant was therefore not required to establish contempt at an interlocutory summary dismissal hearing but merely to demonstrate a sufficiently arguable or prima facie case to proceed to trial.
15.The court’s task in the interlocutory hearing was to apply the summary dismissal test to each alleged count of contempt in the context of the criminal standard rather than the actual application of it.
16.The relevant legal inquiry ought to have been whether the applicant’s evidence at its highest establishes a prima facie case or a sufficiently arguable case to proceed to trial. The criminal standard of proof was merely a relevant consideration in determining prima facie case with no direct application.
17.The Court misconceived the stage of the proceedings. The Court is in error to decree that the contempt charges had to be proved beyond reasonable doubt on the respondent’s interlocutory summary dismissal hearing. Such a proposition is impractical and untenable. If that premise is accepted then the only way forward is nothing short of absolute victory by proving contempt beyond reasonable doubt at the summary dismissal hearing obviating the need for any trial or participation by the respondents leading to breaches of procedural fairness and natural justice to the respondents’ detriment.
18.At the respondents’ interlocutory applications for summary dismissal the appellant was not required to prove the contempt charges beyond reasonable doubt. A prima facie case was sufficient to warrant a trial ordered for the prosecution of the respondents which is where the criminal standard would apply in proving the charges. Hence, the appropriate test is whether the applicant has a sufficiently arguable case with the standard of proof in mind as a relevant consideration although not directly applied at this stage. This error extended to all counts of contempts thereby tainting the entire judgment.
(Appellant Summary of Argument filed 7 December 2022)
There can be little doubt the primary judge conflated two different legal tests when dismissing the contempt applications. His Honour began by reciting the principles which apply to the summary dismissal of civil suits (at [6]–[8]), but then went on to examine each count of contempt, though by applying the criminal standard of proof to some of them as if substantively determining those particular counts (at [36]–[123]).
The mixed application of civil and criminal legal principles can be identified in the conclusions reached, explained by his Honour in this way:
8.[The appellant] 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.
…
37.Having considered [the appellant’s] evidence at its highest, it fails to reach the criminal standard of persuasion to establish contempt in relation to each alleged charge.
…
124.Applying the high standard for dismissal without Trial I find that, taken at it’s [sic] highest [the appellant’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.
(Emphasis added)
The historical distinction between criminal and civil contempt has been described as “illusory” and has now largely, if not entirely, dissolved (Witham v Holloway (1995) 183 CLR 525 at 531–534, 535, 538–542 and 549; Re Colina; Ex parte Torney (1999) 200 CLR 386 at 412 and 428–429). Both forms of contempt are civil proceedings brought within the jurisdiction of the Court, yet both are quasi-criminal in nature and are therefore prosecuted in the same strict procedural way as charged offences and must meet the criminal standard of proof (Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at [40]–[47], [59] and [65]; Mead v Mead (2007) FLC 93-327 at 81,640–81,641; Witham & Holloway at 531, 534, 535 and 543).
Prosecutions of “offences”, which nomenclature is apt to include allegations of contempt (Re Colina; Ex parte Torney at 393, 399, 411–413 and 428), are not typically amenable to summary dismissal pursuant to the same principles which apply in conventional civil proceedings, requiring demonstration that the civil suit does not enjoy any reasonable prospect of success (Spencer v The Commonwealth (2010) 241 CLR 118). Instead, incompetent prosecutions are met by one of two defence submissions.
First, an accused person may demur to the validity of the charge or indictment before the criminal prosecution formally commences, alleging defects in it (see for example ss 17 and 18 of the Criminal Procedure Act 1986 (NSW)), which procedure similarly applies at common law in respect of contempt proceedings (Coward v Stapleton (1953) 90 CLR 573 at 579–580). It is unclear whether the respondents demurred to the contempt counts by expressly asserting they were all an abuse of process (r 10.09(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), but even if they did, the primary judge did not determine the proceedings on that basis.
Secondly, an accused person may submit there is “no case to answer” at the close of the prosecution case, asserting the prosecution cannot be sustained on the evidence adduced by the prosecutor. At that point in time, the legal question for the court is whether the accused could be convicted on the evidence adduced; not the factual question of whether the accused should be convicted on the evidence (May v O’Sullivan (1955) 92 CLR 654; Zanetti v Hill (1962) 108 CLR 433). If the defence submission is successful, the prosecution is terminated by dismissal at that stage of the substantive hearing. The primary judge did not do that here either.
Conversely, “no case to answer” submissions are not usually apposite in civil proceedings, as in that context the phrase tends to be used indiscriminately and is liable to mean different things (New South Wales v Beck [2013] NSWCA 437 at [30]–[41]; James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 399; Tate v Johnson (1953) 70 WN (NSW) 302 at 304). The summary dismissal procedure is preferable in ordinary civil proceedings (Australian Securities and Investments Commission v Healey (2011) 196 FCR 291 at [533]–[550]).
The dismissal of a prosecution because the accused has no case to answer amounts to a judgment on the merits, whereas the determination of a summary dismissal application only requires a “practical assessment” of the civil suit’s prospects of success without the complete factual matrix and full argument (Spencer v The Commonwealth at [25] and [47]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [28]).
The parties did not cite any authority to either support or rebut the validity of applying summary dismissal principles to contempt proceedings in the same way as they apply in ordinary civil proceedings. Before the primary judge, the parties proceeded as if the summary dismissal procedure was valid, but without any apparent anterior contemplation of its suitability. Absent the citation of binding or persuasive authority saying otherwise, the quasi-criminal nature of contempt applications warrants their differential treatment from conventional civil suits: they may be dismissed if the counts are inherently defective (and hence it would be an abuse of process to prosecute them) or if there is no case for the respondent to answer, but should not be dismissed because the counts ostensibly lack reasonable prospects of success. The proper procedure is recognised within rr 10.09(1)(c), 11.70(2), 11.71(6) and 11.71(7) of the Rules.
Here, the primary judge examined each and every count of contempt. Most were dismissed because there was no reasonable likelihood of success (at [81], [83], [85], [87], [89], [91], [93], [95], [97], [99], [101], [105], [107], [111], [113], [115], [117], [121] and [123]), but some were dismissed because the evidence was insufficient to establish the count to the requisite criminal standard of proof (at [103], [109] and [119]). Curiously, the appellant’s grievance is only with the primary judge’s application of the criminal standard of proof, but not with his Honour’s application of the civil test for summary dismissal.
The appellant submitted the methodology employed by the primary judge wrongly imposed upon him the burden of proving:
17.…nothing short of absolute victory by proving [the] contempt beyond reasonable doubt at the summary dismissal hearing…
(Appellant’s Summary of Argument filed 7 December 2022)
which is superficially true, but only in respect of the few counts determined on that basis.
However, contrary to the appellant’s further submission, it does not necessarily follow that the mixed methodology “lead to breaches of procedural fairness and natural justice”, complaints of which are separately made under other grounds yet to be addressed. The appellant’s evidence was not contested, so his evidence in support of each count was accepted at its highest by the primary judge (at [37] and [124]) when determining the dispute.
The question necessarily arises as to what, if any, miscarriage of justice occurred by the primary judge falling into error by both applying the wrong test and conflating two different tests?
The appellant’s unchallenged evidence, taken at its highest, could not possibly attain any greater probative value than it already possessed, regardless of whether the counts of contempt were heard substantively or summarily. He cannot have suffered any injustice because, if the counts of contempt could not be established beyond reasonable doubt on the totality of the unchallenged evidence he chose to lead, the prosecution of those counts ought properly have been terminated. No conceivable advantage could have accrued to the appellant by delaying the pronouncement of the inevitable result, in which case he was denied nothing.
Neither did the appellant suffer any injustice by the primary judge applying the civil summary dismissal test to the remainder of the contempt counts, because all were defective in any event. The multiple counts of contempt alleged by the appellant against the respondents covered three different categories of misconduct:
(a)first, the respondents’ flagrant violations of an injunction made in May 2021 (at [102], [116] and [118]);
(b)secondly, instances of the respondents’ contumelious conduct, though not by their disobedience of any court order, but rather by what the appellant described as their “threats and extortion” (at [80], [82], [84], [86], [88] and [90]); and
(c)thirdly, the respondents deliberately deposing false evidence (at [92], [94], [96], [98], [100], [104], [106], [108], [110], [112], [114], [120] and [122]).
The first category of alleged misconduct could not possibly sustain accusations of contempt because the relevant counts, which allege the respondents openly denigrated the appellant in breach of a restrictive injunction made in May 2021, are no more than a reflection of the appellant’s assumption of the respondents’ criticism of him to the child.
The relevant injunction made in May 2021 only prohibited the respondents from denigrating the appellant in the subject child’s presence or hearing, in these terms:
7.THAT each party is hereby restrained from denigrating any of the other parties to or within the hearing of [the child].
(Emphasis added)
The evidence adduced by the appellant in support of these counts was incapable of proving the alleged breaches of the injunction. There was a surfeit of evidence of hostile communication between the parties, but nothing else. No evidence adduced by the appellant proved the child was ever privy to such hostility, so no breach of the injunction could be proven, let alone that the presumed contravention was so flagrant as to be contemptuous.
The evidence which the appellant particularised to prove these counts was, first, the letter sent by the ICL to the parties on 16 June 2022 explaining the child’s disinclination to see or speak with the appellant, and secondly, a text message sent by the child to a third person on 18 October 2021, informing the person that she “[doesn’t] want anything to do with” either him or the appellant. Neither document was capable of proving the respondents’ denigration of the appellant to or within the hearing of the child in breach of the injunction made in May 2021. Both pieces of evidence were just as consistent with the child genuinely resisting any interaction with the appellant without any influence by the respondents.
The second category of alleged misconduct could not possibly sustain accusations of contempt for the reasons explained under Ground 2.
The third category of alleged misconduct could not possibly sustain accusations of contempt either. These counts assert the respondents gave false evidence in the underlying parenting proceedings, such as to constitute perjury. However, perjury of itself does not amount to contempt of the Court under s 112AP of the Act and s 45 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”). Deliberately giving false evidence is, in the broadest sense, liable to interfere with the administration of justice, but such conduct can only amount to contempt when it is actually intended to obstruct or frustrate the proceedings, which is quite rare (Keeley v Brooking (1979) 143 CLR 162 at 169–170, 172, 174 and 178; Coward v Stapleton at 578–580). Even if it be assumed the respondents deliberately gave false evidence in the earlier parenting proceedings, such false evidence was only intended to advance their cause to retain custody of the child and to minimise the appellant’s involvement in her life; not to obstruct or frustrate the orderly conduct of the proceedings.
Perjury is a separate criminal offence, punishable upon prosecution by the Commonwealth Director of Public Prosecutions under ss 35 and 36 of the Crimes Act 1914 (Cth), and it is difficult to prove. The appellant’s subjective belief in the falsity of the respondents’ evidence is not proof of the fact, as he appears to wrongly think. The evidence of one witness is not necessarily false just because it differs from, and cannot be reconciled with, the evidence of another. Once admitted, evidence may be found to be unreliable and bereft of probative weight for any number of reasons aside from dishonesty. In this case, because the parenting cause was first determined in May 2021 by consent orders and no reasons for judgment were required, the respondents’ evidence in the underlying parenting proceedings was not even tested in cross-examination, let alone found by a judge to be deliberately untruthful. Nor did that happen in the parenting proceedings determined for a second time by the dismissal order made in September 2022, after a hearing which comprised only submissions by the parties.
If an error of law causes no miscarriage of justice there is no need to upset the judgment (Conway v The Queen (2002) 209 CLR 203 at 207–208, 217, 219, 220, 232 and 244). The contempt counts would all necessarily be dismissed if re-heard according to law, in which event this ground fails to sustain the appeal. There would be no utility in remitting the proceedings for re-hearing.
Ground 2
This ground contends the primary judge erred by misconceiving the nature of some contempt counts brought against the first respondent.
Six of the contempt counts charged against the first respondent were dismissed by the primary judge simply because the conduct allegedly constituting the contempt occurred long before, and therefore could not have been in flagrant breach of, the parenting orders made in May 2021 (at [81], [83], [85], [87], [89] and [91]).
In so deciding, the appellant contended the primary judge misconstrued the form of contempt alleged within those six particular counts. He contended he was not, as the primary judge wrongly believed, prosecuting contraventions of court orders which involved a flagrant challenge to the Court’s authority (s 112AP(1)(b) of the Act), which is traditionally civil contempt, but rather the different species of contempt which occurs in the face or hearing of the Court (s 112AP(1)(a) of the Act; s 45(2) of the FCFCA Act; r 11.70 of the Rules), which is traditionally criminal contempt.
An occasion to prosecute and punish acts of contempt which occur in the face or hearing of the Court rarely arises (Re Colina; Ex parte Torney at 391 and 428). Even though the appellant might have actually contemplated prosecuting the first respondent for that rare species of contempt, the six counts which are the subject of this ground of appeal could not possibly have been sustained according to established legal principles and so the primary judge’s dismissal of them on an erroneous basis caused no prejudice to the appellant. The following analysis should demonstrate why that is so.
The six counts of contempt brought against the first respondent which are the subject of this ground of appeal relevantly alleged that he:
(a)threatened the appellant, by text message on 15 May 2019, that he would never see the child again (at [80]);
(b)threatened the appellant, by telephone on 24 May 2019, that the child would not speak with him again (at [82]);
(c)threatened the appellant, by text message on 1 December 2019, that the child would not be at the appellant’s graduation ceremony (at [84]);
(d)threatened the appellant, by text message on 1 December 2019, that the child wants nothing to do with him if he does not “drop” the parenting proceedings (at [86]);
(e)threatened the appellant, by telephone on 5 December 2019, that the child would not attend his graduation ceremony unless he discontinues the parenting proceedings (at [88]); and
(f)held the child hostage on 11 December 2019 by telling her she can only attend a shopping centre to see the appellant if he “drops” the parenting proceedings (at [90]).
Even if it be assumed each of those events in 2019 happened exactly as the appellant alleged, none of the charged conduct could possibly amount to contempt in the face or hearing of the Court because it occurred between the parties and the child in private, long before the litigation was even started. The underlying parenting proceedings did not commence until May 2020 and were concluded consensually in May 2021, and then again in September 2022, so any form of unpleasant interaction involving the parties and the child long beforehand, during 2019, no matter how pernicious, could not have been contemptuous of the Court’s process.
Contempt in the face or hearing of the Court, even on the widest definition, only covers conduct which is sufficiently proximate in time and space to the trial of the proceedings, then either in progress or so imminent, such that it is an affront to the trial process (European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 at 463; Fraser v The Queen [1984] 3 NSWLR 212; Registrar of the Court of Appeal v Collins [1982] 1 NSWLR 682 at 684).
Since the subject counts were incurably defective, any error in the primary judge’s assessment of them was entirely immaterial.
Grounds 3 and 5
These two grounds concern the procedural fairness of the hearing conducted by the primary judge on 8 September 2022.
The appellant alleges he was denied procedural fairness because he was deprived of the chance to obtain documentary evidence from another country to help sustain some of the contempt counts against the first respondent (Ground 3) and also deprived of the chance to cross-examine the first respondent about “admissions” he allegedly made (Ground 5). However, neither complaint can be maintained.
As is plain from the reasons for judgment (at [5]), the primary judge was considering the respondents’ oral applications to summarily dismiss the contempt applications under r 10.09 of the Rules on the premise they were frivolous, vexatious, amounted to an abuse of process, or stood no reasonable likelihood of success (rr 10.09(1)(c) and 10.09(1)(d)). But his Honour then set out to singularly determine whether or not each individual count of contempt had any reasonable prospect of success, consonantly with the statutory test governing the summary dismissal of civil applications pending before the Federal Circuit and Family Court of Australia (Division 1) (s 46(2) of the FCFCA Act). His Honour did not make any alternate finding about whether the contempt counts were frivolous, vexatious or an abuse of process (r 10.09(1)(c)).
Since the contempt counts were not being substantively heard, the primary judge did not apply the strict procedure required when respondents appear before the Court to answer the alleged contempt and are at risk of penal sanction (r 11.70(2), 11.71(6) and 11.71(7)).
Subject to what has already been said under Ground 1 about the misapplication of legal principles, the power to dismiss the contempt applications was liable to be legitimately invoked if the alleged counts were unsustainable – for example, because the various counts were pleaded in an incurably defective way or because the supporting evidence could not possibly sustain them.
The evidence adduced by the appellant in support of the contempt counts was identified by the primary judge (at [10], [34] and [35]). It comprised his two affidavits and a variety of other tendered documents. The competence of the contempt counts had to be determined upon that body of evidence – none of which was under any challenge.
Allegations of contempt are prosecuted in a strictly adversarial way. An applicant (being the appellant in this case) bears the burden of proving the alleged contempt to the criminal standard of proof. The alleged contemnors (being the two respondents in this case) are not required to adduce any evidence in rebuttal of the contempt applications, but may do so if he or she elects, once the applicant closes the prosecution case. It becomes clear from the operation of such regular procedure that the appellant was not denied procedural fairness – either with regard to any limitation of the evidence he chose to file and serve in support of the contempt counts or in respect of the first respondent’s unavailability as a witness in the proceedings.
The contempt applications were filed in February 2022 and the respondents’ summary dismissal applications were not heard until seven months later in September 2022. The appellant had plenty of time within which to marshal the evidence he needed to prosecute the contempt counts. The appellant did not tell the primary judge he needed more time within which to gather more documentary evidence in support of the contempt applications. Nor did he apply for an adjournment of the respondents’ summary dismissal applications until such further evidence was to hand. It is simply untrue to assert the primary judge denied the appellant the chance to acquire such additional evidence. His Honour was entitled to assume the appellant met and opposed the respondents’ applications to dismiss the counts on the premise that all of the evidence upon which he relied to prosecute them was before the Court, which evidence was accepted at its highest. Ground 3 fails.
No question of the first respondent’s cross-examination could possibly have arisen before the primary judge. His Honour was only considering whether or not, on the evidence advanced by the appellant taken at its highest, the contempt counts against the first respondent could be sustained. While the first respondent elected to file an affidavit in August 2022 refuting the alleged acts of contempt, it was not and would not be adduced in evidence unless and until it was found he had a case to answer (or, as the primary judge set out to decide, whether the counts should survive the summary dismissal application). The appellant did not tender as part of the prosecution evidence any “admission” made by the first respondent in his affidavit. Unless and until the first respondent elected to lead evidence at a substantive hearing in defence of the contempt counts, he was not a compellable witness. The dismissal of the contempt counts before the first respondent needed to elect whether or not he would give evidence in his defence therefore foreclosed any prospect of the appellant being able to cross-examine him, which makes it unnecessary to discuss whether anything said by the first respondent in his affidavit truly is capable of being characterised as an “admission”. Ground 5 also fails.
Ground 4
This ground asserts the primary judge fell into error when dismissing the contempt counts by failing to take into account various “admissions” allegedly made by the first respondent in the affidavit he filed in August 2022.
There are two flaws in this ground.
First, the failure to take a material consideration into account is redolent of error when making a discretionary decision (House v The King (1936) 55 CLR 499 at 504–505), but the decision made by the primary judge was not discretionary. Rather, the decision about the competence of the contempt counts would admit of only one correct legal answer. Either the contempt counts could be sustained on the evidence advanced by the appellant or they could not. The complaint within this ground is therefore incompetent.
Secondly, the alleged “admissions” to which the appellant refers were not in evidence before the primary judge. As explained in respect of Ground 5, none of the first respondent’s affidavit evidence was part of the evidence adduced by the appellant in support of the contempt counts, which evidence comprised only the appellant’s affidavits and exhibits (at [10], [34] and [35]). The primary judge could not therefore have taken the first respondent’s affidavit evidence into account. It would have been an error of law to do so.
Disposition
The appeal is dismissed.
The respondents were not legally represented and had no costs to recoup, so there will be no costs order.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & Howard. Associate:
Dated: 14 March 2023
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