FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gordon & Wayland [2022] FedCFamC1F 83
File number(s): MLC 3486 of 2017 Judgment of: MCGUIRE J Date of judgment: 25 February 2022 Catchwords: FAMILY LAW – CONTEMPT – Where final parenting orders were made in February 2022 – where the mother filed an application for contempt against the Independent Children’s Lawyer – oral application made by the Independent Children’s Lawyer seeking a summary dismissal of the mother’s application for failure to establish a prima facie case – application for contempt, filed by the mother, summarily dismissed Legislation: Family Law Act 1975 (Cth) s 112AP
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09 and 11.71
Cases cited: Hawkins v Powells Tillery Steam Coal Company Ltd [1911] 1 KB 988
In the Marriage of Vergis (1997) FLC 90–275
Linden v Commonwealth (No.2) (1996) 70 ALJR 541
M & M (1990) FLC 92–106
Pelerman & Pelerman [2000] FLC 93-037
S & L [1998] FamCA 147
Smithwick v National Coal Board [1950] 2 KB 335
Tate & Tate (2002) FLC 93–107
Vail & Vail (No.4) [2021] FamCA 106
Wilson v Kuhl [1979] VR 315
Division: Division 1 First Instance Number of paragraphs: 36 Date of hearing: 18 February 2022 Place: Melbourne Solicitor for the Applicant: Litigant in Person Counsel for the Respondent: Dr Alexander Solicitor for the Respondent: C Lawyers ORDERS
MLC 3486 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GORDON
Applicant
AND: MR WAYLAND
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
25 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The application for contempt filed by the mother on 13 January 2022 be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Gordon & Wayland has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATIONS
The mother, Ms Gordon, brings an application that the Independent Children's Lawyer (‘ICL’), Mr Wayland, be dealt with for contempt. The Application filed 13 January 2022 purports to raise 10 grounds against the respondent ICL.
In her application the mother also references counsel for the ICL, Mr B, barrister, although the face of the application is silent in respect of Mr B and who was not apparently served with the application. Mr B…
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- AGLC
- Gordon & Wayland [2022] FedCFamC1F 83
- Case
- [2022] FedCFamC1F 83
- Decision Date
CaseChat Overview and Summary
The Court considered the historical authorities in respect of contempt of court, and noted that the power of a court to convict and punish for contempt by summary procedure should be sparingly used and jealously watched. The Court also noted that the ICL is independent of the other parties in parenting proceedings, and is charged with presenting his/her own case unfettered by the parties. The Court found that the application was fundamentally misguided in its intent and flawed in its prosecution, as the mother had not alleged any wilful disrespect or disobedience in the respondent ICL towards the Court or in the face of the Court. The Court also found that the application did not raise a prima facie case for contempt, as disagreement between a parent/party and an ICL is common and might be seen as the fundamental role of the ICL being to present a case on behalf of the child relieved of the bias which the parents will inevitably bring to their own cases. The Court held that the ICL is “independent” and the Court is not obliged to accept the recommendations of the ICL.
The Court dismissed the application for contempt, and noted that the statutory test of “there is no reasonable likelihood of success” replaced the common law test of “doomed to fail” in rule 10.09(1)(d). The Court also noted that the authority of M v M and S & L supported the view that the power of a court to convict and punish for contempt by summary procedure should be sparingly used and jealously watched. The Court emphasised that the ICL is independent of the other parties in parenting proceedings, and is able to formulate and make recommendations to the Court independently and without influence of the parties. The Court held that the application must fail as not raising a prima facie case for contempt.
No orders were made.
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Ratio Decidendi
Legal Principle Established
The common law test of “doomed to fail” no longer applies but is replaced in the statute of rule 10.09(1)(d) as “there is no reasonable likelihood of success”.CONSIDERATION This is an application that the respondent ICL be dealt with for contempt under s 112AP of the Act. Any reading of the application does not have the applicant mother referencing any breach of a court order by the respondent. The Contempt Application alleged must therefore be of a type other than analogous to a contravention of an order in its most serious or “flagrant” form. I infer, therefore, that the application is in the form of a contempt involving acts, omissions or behaviours where the law of contempt is concerned with the maintenance of an effective legal system and to protect the administration of justice but where the remedy of contempt is generally seen as being the ultimate sanction. Where the applicant here grounds her application for contempt on the alleged acts or omissions by the ICL, it is pertinent to note the authority of M v M[9] where the Full Court said:… we would emphasise that a considerable body of authority exists to support the view that the power of a court to convict and punish for contempt by summary procedure should be sparingly used and jealously watched. It should be exercised only in rare cases when there is no other remedy to preserve the dignity of the court and protect the public as it is an inherently despotic and arbitrary power in which the judge often acts as prosecutor, witness, judge and jury. Lord Denning expressed this concept succinctly in Balogh's case (footnotes omitted) when he said:“Insults are best treated with disdain - save when they are gross and scandalous.''[9] (1990) FLC 92–106 at 77,709. A later Full Court in S & L[10] noted that whilst M v M (supra) dealt with an insult to the Court, the general principle expressed there has a wider application.[10] [1998] FamCA 147. I have carefully read the application and supporting affidavit of the applicant in light of the historical authorities in respect of contempt of court. I am of the view that the application is fundamentally misguided in its intent and flawed in its prosecution. I can infer from the application no allegation of wilful disrespect or disobedience in the respondent ICL towards the Court or in the face of the Court. Rather the theme of the material is of personal grievance in the applicant. Consistent with her conduct of the trial, the applicant takes issue with a number of recommendations of the ICL. She raises issues with the way in which the ICL presented his case. By implication she argues a form of pre–determination or bias on the part of the ICL. The applicant differs from the ICL in what weight the Court should have placed on particular facts in evidence. The applicant differs from the ICL on occasion as to what findings of credit the Court should make in respect of particular witnesses. In all of these respects the application must fail as not raising a prima facie case for contempt. That is, it is well-established that an ICL is independent of the other parties in parenting proceedings and charged with presenting his/her own case unfettered by the parties in being able to adduce evidence unconstrained by those parties at his/her discretion. The ICL is able to formulate and make recommendations to the Court independently and without influence of the parties but where, as with the arguments of the parties themselves, the Court is not obliged to accept such recommendations. Put simply, disagreement between a parent/party and an ICL is common and indeed might be seen as the fundamental role of the ICL being to present a case on behalf of the child relieved of the bias which the parents will inevitably bring to their own cases. To this end, an ICL is “independent”.