Jabbar and Gade (No.9)

[2017] FCCA 3403

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

1. 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.

2. The respondent’s application for costs is adjourned to 2.10pm on 28 July 2017 for delivery of an oral decision.

3. 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

1. 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.

2. 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.

3. 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.

4. 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. 

5. 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.

6. 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.

7. 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.

8. 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. 

9. 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