Gordon & Wayland
[2022] FedCFamC1F 83
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 did not appear on this application.
The applicant mother appears to be seeking the remedy of a term of imprisonment for the ICL where at the foot of her particularised claim appears the following:
My Childs (sic) been denied access to adequate representation for years. [Mr Wayland] has never met the Child ….he was first appointed in 2017. His 'misconduct' has inflicted significant harm, and caused delays.
Offences flagrantly committed by [Mr B] and [Mr Wayland] are punishable by imprisonment.
The mother represents herself in this application as indeed she did throughout the lengthy trial process where final orders were made on 1 February 2022.
The respondent, Mr Wayland, is represented by Dr Alexander of counsel.
The father in the completed substantive proceedings, Mr Callas, appeared in person but is not a party to the application and remained simply as an observer.
The previous substantive proceedings were firstly before Judge Baker (as she then was) and myself in the Federal Circuit Court and then transferred to the Family Court and involved parenting issues in respect of the parties’ one child X (DOB 2012, aged 9 years) on the father's application and together with the mother’s applications for orders pursuant to s 79A of the Family Law Act 1975 (Cth) (‘the Act') and for spousal maintenance.
Those proceedings occupied over 10 days of hearing time. The mother represented herself throughout those long and arduous proceedings and my Reasons for Judgement will show that she did so with a high degree of competence. The father was represented by solicitors and counsel at all times. The Court had the benefit of Mr Wayland as ICL represented by Mr B of counsel at the trial.
Prior to the hearing of the mother’s Contempt Application, counsel for the respondent ICL made a preliminary application and submissions that the Contempt Application be summarily dismissed as not making out a prima facie case on the material filed including on the lengthy affidavit of the mother in support of the Contempt Application.
The application for summary dismissal was, not surprisingly, opposed and argument proceeded before me by oral submissions. At this stage the respondent ICL had not been called upon to enter pleas. Given the nature of the application, the ICL had not filed a response or responsive affidavit.
THE RESPONDENT’S CASE
Counsel for the respondent ICL argues that the Application be summarily dismissed as being defective in failing to set out acts, omissions, or behaviour that can prima facie constitute contempt.
Counsel argues that the application is unparticularised and vague to an extent that the respondent ICL cannot and should not be called upon to enter pleas.
Given that the mother is unrepresented and for the sake of completion and context, I set out Part C of the mother’s application and the apparent charges of contempt in their entirety as follows:
1.Failed/refused to submit 'Independent Court Appointed Expert Witness' reports of [Ms E] and [Dr D] 2018, as evidence via Affidavits
a)[…] 2021, lied to the Court as to why, stating the ICL 'was not engaged to represent the Child at that time'
2.Entered knowingly false information into evidence in the Federal Circuit Court, via Affidavit material of [Ms G] and [Mr F],
a)mislead the Court throughout proceedings, stating "the Mothers harmed the Child by exposing the Child to multiple (protective) interviews",
b)Procured another to lie to the Court, [Ms G] (expert witness of the Fathers sole choosing) to state the DHS records support the false allegation of (above mentioned) 2.a); whilst simultaneously refusing to divulge requested brief
c)After attending a reading of the DHHS material and prompting, the ICL still Failed/refused to give full and frank disclosure to the Court regarding the false allegation, instead repeating the lie in final hearing13th Oct 2021
d)Requested to pass the reports of [Ms G] and [Mr F] onto [Ms H] (Childs psychologist) and [Ms J] (Mother's psychologist),
e)refusing to alter knowingly false information contained; negatively influencing the independently obtained, private support people, before he subpoenaed them
3.November 2019, requested this Court make excessive, mandatory, involuntary Mental Health Treatment Orders against myself, a self represented [woman from a disadvantaged minority group].
a)Failing to get the recommendations sealed. They were handed to myself and the Judge the morning of 1st Final Hearing […] 2019, knowingly requesting I be denied access to 'due process'
b)Having NO intention of subpoenaing [Mr F] for cross examination, despite relying SOLELY on his report to support his discriminative recommendations,
c)Failed to provide full and frank disclosure to the Court, and in my submission, "Act appropriately" regarding unlawful behaviour and contamination of 2nd court appointed "Expert" witness (of the Fathers sole choosing), particularly in regards to the independent obtainment of the "supplementary report", requesting and paying for a specifically worded document; with [Mr F] obliging
4.[…] 2020, informing the Court there's been "diagnosis", despite having a letter from the Mental Health Tribunal stating "record of No Diagnosis", and 3 full psychiatric examinations all stating 'no diagnosis'.
5.Despite being prompted, [Mr B] chose not to disclose to the Court sections of the Disability Discrimination Act that were being violated by his 'delinquent client'
6.[…] 2021, advocated for the breaching of Order stating "no reasonable holiday is to be denied"
a) Assisted in the perpetration of Domestic Violence
b) Advocating for cultural isolation and maternal family alienation
7.Mislead the Court regarding an expert from school ringing me. Presented to the Court that was an example of my alleged "parental alienation", [Mr B] breaching Conduct Laws, Discriminating against me and purposely misleading the Court to the detriment of the Child
8.[…] 2021, instructed the Court that there had been no full IVO Orders, and chose to mention the [Ms K] IVO. Discrimination, being further prejudicial to the administration of Justice.
a)Refusing to give full and frank disclosure when presented with evidence, should be taken into consideration in regards to the 'intent' and 'conviction' attributed to the professional misconduct of [Mr Wayland] and [Mr B].
9.Advocating for parental alienation, economic abuse and assisting in the perpetration of Domestic Violence, by stating the Child should stay in [L School] and the [M Region]/highly exclusive, highly sought after [region].
10.Final Recommendations- to remove the Child because of my alleged, fabricated and presented "[disorder]". To remove the Child because "I think the Father would better shield her from the conflict" with NO evidence to support that, and evidence that suggests otherwise.
Remove the Child for record lengths of time, on a fortnightly basis.
If the Mother moves to independently obtained, financially sustainable housing, away from the [father’s residence].....remove the Child for longer.
My Childs (sic) been denied access to adequate representation for years. [Mr Wayland] has never met the Child......he was first appointed in 2017. His 'misconduct' has inflicted significant harm, and caused delays.
Offences flagrantly committed by [Mr B] and [Mr Wayland] are punishable by imprisonment.
THE RELEVANT LAW
Section 112AP of the Act sets out the jurisdiction and power for this Court to deal with contempt as follows:
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6)The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person’s discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person’s liability to make the payment.
(9) In this section:
order under this Act means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
Firstly, it is abundantly clear that the applicant mother does not allege any contravention of any order of the Court and certainly does not particularise any such allegation such that the respondent ICL could be called upon to plead.
This Court has no inherent power to punish for contempt but rather the power arises solely by statute limited to s 112AP.[1]
[1] In the Marriage of Vergis (1977) FLC 90–275.
The standard of proof applicable on a contempt application is the criminal standard of beyond a reasonable doubt.[2]
[2] Tate & Tate (2002) FLC 93–107.
The onus of proof rests with the applicant who, as in criminal matters, must prove all of the elements of the charge(s).
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) at rule 11.71 provide in respect of contempt application is as follows:
(1)If it is alleged that a person has committed a contempt of the court (whether or not the contempt occurred in the face or hearing of the court), an application may be made to the court for the person to be dealt with for the contempt.
(2)An application must:
(a)be in accordance with the approved form; and
(b)state the contempt alleged; and
(c)be supported by an affidavit setting out the facts relied on.
(3) An application may be made:
(a)if the contempt is in connection with a proceeding—by a party to the proceeding; or
(b)by the Marshal or another officer of the court; or
(c)by an officer or staff member of the Australian Federal Police; or
(d)by a member of the police force of a State or Territory.
(4)The court may direct the Marshal or another officer of the court to make an application.
(5)If the court considers that the person is likely to leave the jurisdiction of the court, the court may issue a warrant for the arrest and detention of the person in custody until the person:
(a)attends before the court to answer the charge; or
(b)gives security, as directed by the court, for the person’s attendance before the court to answer the charge.
(6) When the person attends before the court, the court must:
(a)tell the person of the allegation; and
(b)ask the person to state whether the person admits or denies the allegation; and
(c)hear any evidence in support of the allegation.
(7) After hearing evidence in support of the allegation, the court may:
(a)if the court decides there is no prima facie case-dismiss the application; or
(b)if the court decides there is a prima facie case:
(i)invite the person to state the person’s defence to the allegation; and
(ii)after hearing any defence, determine the charge.
(8)If the court finds the charge proved, the court may make an order for the punishment of the person.
The respondent ICL here argues for dismissal on there being no prima facie case established. Counsel for the respondent ICL did not seek to cross-examine the applicant mother on her material but argues only that the material itself does not raise a prima facie case and therefore should be summarily dismissed.
Rule 10.09 provides for summary dismissal including at subparagraph (2) if “there is no reasonable likelihood of success”. Generally such an application is to be made after a Response is filed but where there is no requirement for a Response to a Contempt Application and in this sense I respectfully agree without Altobelli J in Vail & Vail (No.4)[3] that in the circumstances of a Contempt Application the Respondent's oral application for summary dismissal can be treated as a Response.
[3] [2021] FamCA 106.
A prima facie case is one which, on the first appearance, does not offer sufficient evidence to prove the elements of the offence or a legally required rebuttable presumption. That is it is necessary for an applicant to place sufficient evidence of sufficient cogency before the Court of each element of each charge of her case in order to call upon the respondent to plead or answer the charges.[4] Put another way, the respondent argues that the applicant’s evidence in support of her allegations of contempt is so weak that no reasonable person could properly decide the issue in the applicant's favour without further evidence.[5]
[4] Wilson v Kuhl [1979] VR 315.
[5] Hawkins v Powells Tillery Steam Coal Company Ltd [1911] 1 KB 988.
Where Courts are often able to draw inferences, no inference should be drawn here unless there are objective prima facie facts and evidence from which to infer other facts. That is, the onus is on an applicant to set out a prima facie case properly particularised as to each element of each charge.[6]
[6] Smithwick v National Coal Board [1950] 2 KB 335.
Noting, of course, that the applicant here is self-represented but also considering the inherent seriousness of a contempt application and the ramifications of findings of guilt, I note the comments of Kirby J in Linden v Commonwealth (No.2):[7]
1.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, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading…
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit. (Footnotes omitted)
[7] (1996) 70 ALJR 541 at 544–545.
Similarly, the Full Court in Pelerman & Pelerman[8] at [46] opined in respect of summary dismissal:
… (a) The power for summary dismissal is a discretionary one.
(b)Relief “is rarely and sparingly provided”.
(c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial.”
(f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.”
[8] [2000] FLC 93-037.
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”.
It is not generally for the Court or another party to direct the ICL as to how to prosecute his/her case although the Court may make certain directions. It is ultimately a matter for the ICL as to whether he/she meets a child always informed by matters such as the child's age; previous exposure of the child to the Court process and experts; and other avenues for extracting a child's views and preferences.
Consequently, my reading of the application in its 10 particulars is that it is misguided as being more a screed of complaint by the applicant against the ICL. The applicant has recourse available to her other than by the remedy of contempt. Specifically, counts one, two, three, four, five, seven, and eight can be disposed of accordingly. Further, counts six, nine and 10 are vague and uncertain subjective criticisms by the applicant of the ICL such that the ICL should not be called upon to enter pleas for contempt. Similarly, count six is an allegation against the ICL which is unparticularised, vague, uncertain and arguably scandalous and again where the ICL should not be called upon to enter a plea. Counts nine and 10 are generic criticisms subjective to the applicant but where, in any event, she has other recourse in which to vent such criticism and where seeking remedy for contempt is inappropriate and misguided.
I point out again that the ICL is independent of each of the parents and certainly not an advocate of either of them. Disagreement between parties and an ICL is common and a part of the robust court process where, of course, cross-examination was always available to the applicant herself in respect of any evidence adduced by the ICL or, alternatively, where the applicant at all times had a discretion to adduce such evidence or evidence in rebuttal.
Fundamentally, therefore, I see the mother’s applications and allegations as a narrative of her own disagreement with the ICL or, more particularly, her misunderstanding of the role of the ICL. If she wishes to make complaint as to the behaviour or negligence of the ICL then she has remedies available other than by contempt application.
The application and supporting material does not, in my view, raise a prima facie case of contempt where the respondent ICL cannot and should not be called upon to enter any plea and therefore should be summarily dismissed as having no reasonable likelihood of success and where I am unable to find any of the allegations amounting to an affront of the administration of justice.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 25 February 2022
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