HUDA & HUDA (No.2)
[2020] FCCA 1804
•2 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUDA & HUDA (No.2) | [2020] FCCA 1804 |
| Catchwords: FAMILY LAW – Practice and procedure – order for referral to the Commonwealth Director of Public Prosecutions – whether the Court has a duty to refer certain conduct to the Commonwealth Director of Public Prosecutions (or other authority) – referral made. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: In the Marriage of P & P (1985) 9 Fam LR 1100 |
| Applicant: | MR HUDA |
| Respondent: | MS HUDA |
| File Number: | BRC 1238 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 28 May 2020 |
| Date of Last Submission: | 4 June 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 2 July 2020 |
REPRESENTATION
| Counsel for the Applicant | Mr Fisher of Counsel |
| Solicitors for the Applicant: | Raniga Lawyers |
| Solicitors for the Respondent: | Pullos Lawyers |
| Solicitors for the Independent Children's Lawyer: | Cornerstone Law Offices |
REPRESENTATION FOR OTHER INTERESTED PERSONS
| Trustee for Sale: | Doyle Family Law |
| Mr Laham: | Kalyans Lawyers |
| Child Supper Registrar: | Mills Oakley |
| Counsel on behalf of Bartels Lawyers: | Ms Shepherd |
ORDERS
That the Registrar of the Federal Circuit Court of Australia forward to the Commonwealth Director of Public Prosecutions the Reasons for Judgment delivered 9 April 2020 as well as the Transcript of the entire proceedings along with the Exhibits (relating to those proceedings) for a consideration by the Commonwealth Director of Public Prosecutions as to whether or not Mr Huda should be prosecuted having regard to the findings made by the Court against Mr Huda referred to in the Reasons for Judgment.
IT IS NOTED that publication of this judgment under the pseudonym Huda & Huda (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1238 of 2015
| MR HUDA |
Applicant
And
| MS HUDA |
Respondent
REASONS FOR JUDGMENT
The applicant in the current proceedings is Mr Huda. The respondent is Ms Huda. The parties were married in 2003. The parties have two children:
i)C born in 2005; and
ii)D born in 2007.
The parties separated on a final basis on 3 January 2015.
On 17 February 2015 Mr Huda filed an Initiating Application seeking parenting orders (pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”)) and also seeking an order for property adjustment under section 79 of the Act.
On 18 May 2016 the parties reached a final agreement in relation to parenting issues. A trial took place in May 2016 before another Judge of this Court. Judgment was delivered and final property orders were made on 17 June 2016. At that stage, in addition to the husband and the wife, there was also included in the proceedings an intervener, Mr Laham.
The husband and Mr Laham filed Notices of Appeal against the orders of the Court.
On 18 May 2018 the Full Court of the Family Court of Australia allowed the appeals of the husband and Mr Laham (appeal number NA47 of 2016 and appeal number NA49 of 2016 respectively). The Full Court ordered that a rehearing take place in the Federal Circuit Court of Australia.
By the time the final hearing commenced on 29 July 2019 Mr Laham was no longer a party to the proceedings. Parenting matters were again in issue. Both parents sought a variation to the earlier parenting orders.
Accordingly, the trial proceeded on the issues of parenting and property over the period of 10 days in July, August and October 2019. The final submission was received by the Court on 11 December 2019. Judgment was delivered at Brisbane on 9 April 2020.
In the Reasons for Judgment the Court made findings against Mr Huda. Findings against Mr Huda are contained in the following paragraphs of the Reasons for Judgment delivered on 9 April 2020. This list is not exhaustive but includes:-
a)Paragraphs 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 98 and 129.
In view of the findings made by the Court against the Mr Huda, the Court gave to the parties an opportunity to make a submission as to whether or not the Court should refer Mr Huda (and the Court papers) to the Commonwealth Attorney-General for investigation and possible prosecution. At paragraph 296 of the Reasons for Judgment the Court stated that it was seeking such a submission from the parties, “…in particular, having regard to the findings made by the Court concerning the husband's false allegations against the mother of sexual abuse of the children.”
On 23 April 2020 the Court received written submissions on behalf of Mr Huda relating to this issue. The submissions were settled by Mr Simon Fisher of counsel and were forwarded to the Court by Raniga Lawyers on behalf of Mr Huda. The submissions were in response to paragraph 296 of the Reasons for Judgment. In addition to the written submissions provided on behalf of Mr Huda, the Court also heard oral submissions by Mr Fisher on behalf of Mr Huda on 28 May 2020. Ms Huda (through her lawyers) also made a submission about this issue.
There are a number of cases where the issue of referral has been considered. In a case entitled In the Marriage of P & P (1985) 9 Fam LR page 1100 – Lindenmayer J stated from page 1108:-
“The first question which this poses for my consideration is whether I have a duty to refer the papers in this matter to the Commonwealth Attorney-General for consideration by him or his officers of whether proceedings should be commenced against either or both parties for the recovery of the income tax avoided and/or any penalties arising therefrom, or whether I should take any other, and what, steps designed to ensure the recovery of the unpaid taxes. The second question is, what effect, if any, should the fact that one or both parties may be liable to prosecution for income tax evasion have upon my determination of these proceedings.
…..
Mr Warnick, for the wife…went on to submit that the making of a referral in a case such as this does not involve the exercise of any inherent jurisdiction of the court. In support of this submission he relied upon the statement by Gibbs J (as he then was) in Taylor v Taylor [1979] FLC 90-674 at 78-590 that ‘the [Family] Court would not have any inherent power except such as might be necessary to enable it to do justice within the limits of the jurisdiction which the Act confers upon it’. Again, I agree with that submission.
However, in my opinion the issue for my consideration in this case is not one of jurisdiction or power, but one of duty or obligation. In my opinion, all courts of law, including the Family Court of Australia, in exercising their jurisdiction or powers, have certain fundamental duties. For example, all courts have a duty to act judicially and not arbitrarily or capriciously. Likewise, all courts have a duty (subject to certain specified and limited exceptions) not to make orders without hearing, or giving an opportunity to be heard to, any persons whose rights are affected by such orders. Admittedly, those duties arise in and for the purpose of proceedings in the court, and breaches of them may be enforced by way of appeal or, in some cases, by prerogative writ. Assuming that this court has a duty to make a referral in certain cases of breach of the revenue laws, a failure to carry out that duty would seem incapable, or at least unlikely, of enforcement at the instigation of either of the parties. In my opinion, however, the absence of any mechanism for enforcement does not itself negate the existence of a duty, and the question whether such a duty exists must be determined by reference to other criteria, including the historical origins of courts and an analysis of the composition, functions and place in society of those courts.”
At page 1114 of the decision In the Marriage of P & P (supra) Lindenmayer J concluded:-
“I am of the opinion that this court, as a Federal court exercising the judicial power of the Commonwealth, has a duty to protect the revenue of the Crown in right of the Commonwealth. That duty extends to requiring this court to take such steps as it is able to take to ensure that the revenue laws of the Commonwealth are not defrauded or evaded by litigants or others who come before it.
Where, as in this case, the evasion is by a party and has already occurred, the steps which the court might take in fulfilment of its duty are limited. It might, I suppose, upon becoming aware of the relevant evasion, adjourn or stay the proceedings and refuse to proceed further until satisfied that the party in question has made a full disclosure to the Commissioner of Taxation. Such a course, however, may work an injustice upon the other party. Furthermore, such a course may be seen as putting the offending party in the position of either being obliged to incriminate himself or being denied a hearing of his case by the court. I think that it would not be appropriate for a court of law to place him in that position.”
Lindenmayer J concluded that the Court, in that case, had a duty to refer the conduct of the litigants involved. This question was considered again Malpass & Mayson [2000] FamCA 1253 by the Full Court of the Family Court. At paragraph 31 the Full Court came to the conclusion that the Court does have the power to refer the commission of possible offences to relevant authorities – but the Court is not always under a duty to make such a referral or report. At paragraph 31 of the decision the Full Court stated:-
“31. Despite these authorities we do not think that it necessarily follows that the Court is always under a duty to report the fact of commission of possible offences to relevant authorities including revenue authorities, although it clearly has the power to do so. Questions of degree must be relevant. There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues. We think it unreasonable for the Court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities. We leave the determination of this issue to be determined in a case where the point arises directly. It does not arise here for there is no dispute as to the Court's power to make such a reference, as his Honour did.”
Of particular note in in the decision of Malpass & Mayson (supra) is the reference by the Full Court to the fact that, “questions of degree must be relevant”. In other words, every case is different. In the present case before the Court, the Court has made findings that Mr Huda (the father) has falsely accused Ms Huda (the mother) of sexually abusing the children. The Court's findings against Mr Huda relate (inter-alia) to his allegations:-
a)That Ms Huda engaged in sexual intercourse with a man in front of the children (note paragraphs 56 and 57 of the Reasons for Judgment);
b)That Ms Huda masturbated in front of the child D (paragraph 71 of the Reasons for Judgment); and
c)That Ms Huda had engaged in sexual relations with the children since the children were born (paragraph 129 of the Reason for Judgment).
These particular findings referred to above are not all of the findings made by the Court against Mr Huda.
An allegation that a parent has engaged in sexual abuse of their own child is an allegation of the most serious kind. The Court came to the conclusion that the father (Mr Huda) made these allegations even though the allegations are false – and even though Mr Huda knew them to be false.
There was no proper basis for the allegations made by Mr Huda against the mother in this case (as the findings referred to indicate).
In Australian Building and Construction Commission v Parker (No. 2) [2017] FCA 1082 (“ABCC v Parker (No.2)”) Flick J had made findings against a number of respondents in proceedings in the Federal Court of Australia. His Honour considered whether an order should be made referring those respondents to the Director of Public Prosecutions. Flick J at paragraph 87 stated:-
“87. Of particular concern was whether the Director should consider whether those persons had committed an offence under s 35 of the Crimes Act 1914 (Cth). Section 35(1) of that Act provides as follows:
Giving false testimony
A person commits an offence if:
(a) the person gives false testimony touching a matter; and
(b) the person does so:
(i) in a judicial proceeding; or
(ii) with the intention of instituting a judicial proceeding; and
(c) the matter is material in the judicial proceeding; and
(d) the judicial proceeding is a federal judicial proceeding.”
Flick J specifically referred to a decision of Hall J in the Supreme Court of New South Wales in a decision entitled Simpson v Hodges [2007] NSWSC 1230. Particular reference was made to paragraphs 268 and 269, where Hall J stated:-
“268. A judicial officer who believes that offences have been committed is under a duty to refer the proceedings to the relevant authority: Normandy Woodcutters (above) per Mildren J at [53]. Accordingly, where evidence is given in proceedings in this Court that reasonably suggests that an offence has or may have been committed in relation to proceedings conducted before it, the Court has a duty to refer the proceedings. As Mildren J observed in Normandy Woodcutters (above), referring the papers is not an exercise of judicial power and no findings are made and no injury to anyone’s reputation arises by a mere referral. Nor, as his Honour observed, is the judicial officer required to give anyone an opportunity to be heard in such a matter.
269. In light of the evidence to which I have referred and for the above reasons, the Registrar of this Court will be directed to forward a copy of these reasons for judgment to the Director of Public Prosecutions and to make available, as may be required, the full transcript of these proceedings and the exhibits for inspection by any officers authorised in that behalf by the Director of Public Prosecutions.”
Of particular note in Simpson v Hodges (supra) is the reliance by Hall J on a decision of the Supreme Court of the Northern Territory in NormandyWoodcutters Ltd v Simpson[2002] NTSC 43. Flick J in ABCC v Parker (No. 2) supports the observation made by Hall J in Simpson v Hodges (supra) to the effect that referral of papers is “not an exercise of judicial power and no findings are made and no injury to anyone's reputation arises by a mere referral”. Further, Flick J approved the observation made by Hall J that a Judge who is considering referring a matter to an appropriate authority is not “required to give anyone an opportunity to be heard in such a matter”.
The Court in this case has, of course, given to the parties (including Mr Huda) an opportunity to be heard in relation to the issue.
The submissions made on behalf of Mr Huda noted that he was a self-represented litigant. This is not a sufficient reason to prevent the Court from referring Mr Huda’s conduct to another authority for investigation. In fact, I am not persuaded by any of the submissions made on behalf of Mr Huda concerning this issue.
In view of the nature of the false allegations made by Mr Huda against Ms Huda and noting the findings made by the Court – I have come to the conclusion that in the particular circumstances of this case the evidence of Mr Huda, the findings made against Mr Huda (i.e. the Reasons for Judgment delivered on 9 April 2020), the Court Transcripts and the Court Exhibits are all papers that should be referred to the Commonwealth Director of Public Prosecutions (“Commonwealth DPP”). The Commonwealth DPP will be able to give proper consideration as to whether or not any matter should be pursued further against Mr Huda. I had considered whether the referral should be to the Commonwealth Attorney-General or to the Commonwealth DPP. On balance I came to the conclusion that it was more appropriate for a referral order to be made directing the Registrar of this Court to forward the papers to the Commonwealth DPP. If the Commonwealth DPP takes the view that the papers should be referred elsewhere I am sure that the relevant person or officer will attend to that duty.
In addition to section 35 of the Crimes Act 1914 (Cth) referred to by Flick J in ABCC v Parker(No.2) – I also note that section 36 of the Crimes Act 1914 (Cth) may need to be considered by the Commonwealth DPP. Section 36(1) of the Crimes Act 1914 (Cth) states:-
“Fabricating evidence
(1) A person commits an offence if:
(a) the person:
(i) fabricates evidence; or
(ii) makes use of fabricated evidence; and
(b) the person does so with the intention of misleading a court or judicial tribunal in a judicial proceeding; and
(c) the judicial proceeding is a federal judicial proceeding.”
I note that the mother in the present case (through her lawyers) made a submission that the Court should refer the papers to the relevant authorities.
I also note that the decision of Lindenmayer J In the Marriage of P & P (supra) concluded that referral of papers to the Attorney-General did not amount to a “publication” within section 121 of the Family Law Act 1975 (Cth). His Honour cited an earlier unreported Full Court decision of T v T (1984) FLC 91-588 in support of that conclusion.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 2 July 2020
Key Legal Topics
Areas of Law
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Criminal Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Intention
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Charge
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Statutory Construction
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Procedural Fairness
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