Jabbar and Gade (No.9)

FEDERAL CIRCUIT COURT OF AUSTRALIA

JABBAR & GADE (No.9)

[2017] FCCA 3403

Catchwords:
FAMILY LAW – Applications for contempt & contravention – respondent father found to have no case to answer in respect of the contempts – applications dismissed – applicant mother then elects to withdraw contravention applications.

Legislation:

Family Law Act 1975 (Cth), ss.70NAC

Federal Circuit Court Act (Cth), s.17

Applicant:

MS JABBAR

Respondent:

MR GADE

File Number:

NCC 2265 of 2015

Judgment of:

Judge Terry

Hearing date:

27 July 2017

Date of Last Submission:

27 July 2017

Delivered at:

Newcastle

Delivered on:

27 July 2017

REPRESENTATION

Appearance for the Applicant:

Counsel for the Respondent:

In Person

Mr Weightman

Solicitors for the Respondent:

NLS Law

ORDERS

The mother's application for contempt filed on 22 July 2016, the application for contempt filed on 29 August 2016 and the application for contravention filed on 9 March 2017 are dismissed.
The respondent’s application for costs is adjourned to 2.10pm on 28 July 2017 for delivery of an oral decision.
The applicant has liberty to attend by telephone on 28 July 2017.

IT IS NOTED that publication of this judgment under the pseudonym Jabbar & Gade (No.9) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2265 of 2015

MS JABBAR

Applicant

And

MR GADE

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I have to deal with an application by the respondent father who asks me to find that the applicant mother has not established a prima facie case in relation to the contempt allegations in her applications filed on 29 August 2016 and 22 July 2016.
The contempt applications are supported by an affidavit filed on 29 August 2016. I dealt with objections to that affidavit and as a result, there is simply no evidence to establish anything even vaguely in the nature of a contempt of Court.
The only evidence relevant to the contempt allegation concerning the videos is that the respondent produced two videos in February 2016. It is abundantly clear that there is no case to answer in relation to that contempt application.
The allegation in the contempt application filed on 29 August 2016 is that the respondent provided a false affidavit to Court in that he produced some text messages and the text messages are not true. The evidence in relation to that matter is as follows:
I, Ms Jabbar, did not send any of these text messages.
The applicant attached to her affidavit the affidavit in which the father asserts that he received the text messages on 25 July 2015. I accept the submission by the father’s counsel that when the evidence is taken together it simply does not establish a contempt of Court, in other words, it does not establish that the father deliberately or wilfully produced false evidence with a view to influencing the outcome of the proceedings. It does not establish this because as the father’s counsel rightly points out, the two statements made “I did not send the text messages” and “I received the text messages” are not mutually exclusive and could sit together.
When the parenting proceedings are heard the matter will not be nearly that simple or clear-cut. At the parenting hearing in a few weeks’ time, I will be able to receive a whole range of very different evidence on this issue. Both parties will be cross-examined and people will not be able to rely on technicalities to avoid confronting head on the issues to do with the videos and the text messages.
But the mother has brought two contempt applications. It is her obligation to establish a prima facie case before the father is even obliged to go into the witness box to answer questions. Ultimately she has to prove her case against the father beyond a reasonable doubt. The father does not have to prove anything and I am satisfied that there is no case to answer in relation to the text message issue.
As a result I dismiss both contempt applications.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 14 May 2018

In the matter of *Jabbar and Gade (No.9)*, Judge Terry of the Federal Circuit Court of Australia considered applications brought by the mother concerning alleged contempt and contravention of court orders. The specific applications dismissed were those filed on 22 July 2016, 29 August 2016, and 9 March 2017.

The central legal issues before the court were whether the respondent had contravened or been in contempt of existing court orders, as alleged by the mother in her various applications. The court was required to assess the evidence presented to determine if the threshold for contempt or contravention had been met.

The court dismissed all of the mother's applications. While the reasons for dismissal are not detailed in the provided text, the outcome indicates that the court was not satisfied that the respondent had breached the relevant orders. The court then adjourned the respondent's application for costs to a later date for an oral decision, granting the applicant liberty to attend this hearing by telephone.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established