K and K

[2008] FCWA 57

[2008] FCWA 57

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	K and K [2008] FCWA 57
CORAM	:	CROOKS J
HEARD	:	14 APRIL 2008
DELIVERED	:	20 MAY 2008
FILE NO/S	:	PT 3402 of 2006

BETWEEN : K

Applicant

AND

K

Respondent

Catchwords:

CONTEMPT - summary dismissal

Legislation:

Family Court Act 1997, s 100B, s 112AP
Family Law Rules, r 10.12

Family Law Regulations, 116(6)

Category: Not Reportable

[2008] FCWA 57

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:
Respondent	:

Case(s) referred to in judgment(s):

Bigg v Suzi (1998) FLC 92-799
In the Marriage of Cooper (1980) 6 Fam LR 288; (1980) FLC 90-870
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
Melnik and Melnik [2004] FamCA 843
Pelerman v Pelerman (2000) FLC 93-037

[2008] FCWA 57

Introduction

1 The dispute to be determined is the application of the husband’s daughter

(“[Ms K]”) seeking summary dismissal of the contempt application the husband has brought against her. [Ms K], who is a legal practitioner, is alleged to have prepared affidavits for behalf of the husband’s two younger children aged 11 and 10 years. Both the husband and [Ms K] were self represented at the hearing before me.

Brief background

2 In proceedings between [Mr K] (“the husband”) and [Ms H] (“the wife”), the

wife was represented by a legal practitioner, [Ms T]. The affidavits of two children the subject of the proceedings were handed up in Court to Magistrate Judges by [Ms T] with a bundle of other documents on 13 December 2007. The matter came back before the Court on 19 December 2007, when his Honour expressed concern about a breach of s 100B of the Family Law Act 1975.

Legal Principles - summary dismissal

3 In Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-5 (references omitted) Kirby J set out the principles which govern an application for summary relief:

“The approach to be taken by the Court to the Commonwealth's
application for summary relief is not in doubt:

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

[2008] FCWA 57

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. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and

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”.

4 The Family Court referred to those principles in Bigg v Suzi (1998) FLC 92-799 which were later set out by the Full Court in Pelerman v Pelerman (2000) FLC 93-037 at page 87,582 as follows:

“(a)	The power of a 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 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.”

5 The Family Law Rules 2004 also make provision for applications for summary orders in r 10.12 which provides that:

[2008] FCWA 57

“10.12 A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

…

(c)	it is frivolous, vexatious or an abuse of process; or
(d)	there is no reasonable likelihood of success.”

6 The issue for determination is therefore whether the evidence advanced by the

husband, if accepted, is sufficient to support the contempt application he has brought
against [Ms K].

Evidence relied upon

7 The husband relies upon his application filed 25 January 2008 and his supporting affidavit filed 25 January 2008.

8 The husband’s contempt application states as follows:

“[Ms T] (representing my ex-wife), presented to the court a bundle of unfiled affidavits among which were two affidavits from children: [S] (11years) and [A] (10 years). They were accepted by [Magistrate] Judges.

When subsequently questioned about the affidavits [Ms T] stated on 19 December 2007 that the affidavits had been prepared by [Ms K], a solicitor working for [a government agency].

[Ms K] knowingly and wilfully misled the court and by preparing the
children’s affidavit, even broke the law.

(S. 100B(2) Family Law Act – relating to affidavits from children. [Ms K] has herself lied in her own previous affidavits and has now shown the lengths she is willing to go to – breaking the law – to achieve whatever goal she has in mind. In both cases she displayed absolute contempt for the normal processes and procedures of the Family Law Court, the duties of a court appointed officer and of the truth.”

9 The husband’s affidavit filed on 25 January 2008 provides insofar as it relates to [Ms K] as follows:

“On the 13th December 2007, evidence was therefore entered into the hearing from my son [A] which should not have been. A subsequent phone call from me to him confirmed that most of the affidavit had been composed by my ex wife and my eldest daughter [Ms K] who is a solicitor with [a government agency], and was a series of outright lies and exaggerations. In a subsequent hearing on 19 December 2007, when advised by [Magistrate] Judges that she had broken the law by presenting evidence from children, [Ms T] advised that the affidavits had been

[2008] FCWA 57

prepared by my eldest daughter [Ms K]. Not only does this appear to be a conflict of interest for her, but also leaves her in contempt of court as she knowingly and wilfully broke the law, conspiring with [Ms H] to have inadmissible evidence from a child presented to the court.”

10 I have also considered the relevant portions of the transcript of the proceedings before his Honour on 19 December 2007 which I now repeat as follows:

“His Honour:	Well, could I ask why? It is against the law to have a child swear an affidavit.
[Ms T]:	Well, your Honour, I was given it and the person who had basically helped to do it was another solicitor and it was a solicitor and [Ms H]’s daughter and I thought well you know ---
…
His Honour:	Yes that’s the problem that – and can you go on reading the text that I’ve put in front of you, not only must you not file the affidavit of a child without the leave of the court, if you do want the leave of the court you have to do what I’ve photocopied on the second page. That’s the procedure. It’s academic because let us not beat around the bush; there is no way that leave would be granted for these children to swear affidavits. So ---
[Ms T]:	I didn’t suggest it. I’ve never even spoken to the children, sir.
…
[[Ms T]]	Well, considering a solicitor who is [Ms H]’s daughter, who works for [a government agency] was the person who drew up the affidavit, sir, I expected that ---
…
His Honour:	… The point is that the ethics of filing ---
[Ms T]:	Your Honour, I was unaware of that and I was not trying to circumvent the court’s rules. As I mentioned in the court, I wouldn’t have even had time to have done any affidavits for the client and generally I don’t take on Legal Aid cases, your Honour. But I am ---
His Honour:	But, [Ms T], are you saying that you did not know the law that I photocopied and placed in front of you?
[Ms T]:	I thought that that was the law, but seeing that I’d been given those affidavits and told to file them, I thought that

[2008] FCWA 57

it must have been all right seeing that the daughter, who

was a solicitor had ---

…

His Honour:	No, [Ms T], by coming to the bar table as counsel, one assumes the responsibility for the tender of the bundle of documents and what is in it and you did know there were the affidavits of the two kids.
[Ms T]:	Well, yes, I thought that and I should have known better, but because [Ms H]’s daughter, who is a solicitor with [a government agency], had been the person that had actually drawn those affidavits, that it must have been all right because she deals with those sort of matters on a day to day basis.”

11 In support of her Application for Summary Dismissal, [Ms K] has filed an

affidavit in which she denies having been aware of the existence of the children’s affidavits until after they were handed up in court. Notwithstanding this evidence, I will proceed on the assumption that the husband can establish that [Ms K] suggested that the children swear affidavits and assisted them to do so.

12 Whilst the husband alleges in his Application for Contempt that [Ms K] “has

herself lied in her own previous affidavits”, there is no evidence to suggest that such lies, if they did occur, form part of the present alleged contempt. The husband presented no evidence to support that proposition or to show that such lies, if they could be proved, amounted to contempt.

The law governing the husband’s contempt application

13 The husband’s contempt application is to be dealt with pursuant to s 112AP of the Family Law Act 1975, which provides:

(1)

Subject to sub-s (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.

14 In Melnik and Melnik [2004] FamCA 843, Carmody J said this in relation to

s 112AP(1)(a):

“23 The purpose of s 112AP(1)(a), by contrast, is not to uphold the dignity of a particular judge, order or even a court. Nor is it intended to support the enforcement of private rights of a litigant.

[2008] FCWA 57

It is to preserve and protect community confidence in the integrity of the administration of justice [1].

24. Thus, the question with respect to the interference contempt is whether the respondent's conduct in executing the Power of Attorney had the legal and practical effects alleged by the applicant and, if so, whether it was so blatant, so defiant of the authority of the judiciary as a whole, and so calculated to undermine public confidence in the court's capacity to protect and enforce their rights, that he should be punished as a contemnor.”

[1] Attorney-General v Leveler Magazine (1979) AC 440 at 449.

15 This quote from Carmody J reflects other authorities.

16 It is not alleged that [Ms K] contravened an order under the Act, but rather that she contravened s 100B of the Family Law Act 1975.

17 S 100B of the Family Law Act 1975 provides:

“100B(1) A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the court makes an order allowing the child to do so.

100B(2) A child must not be called as a witness in, or be present during, proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).

100B(3) In this section:
child means a child under 18 years of age.”

18 If it is assumed that [Ms K]’s conduct was in breach of s 100B of the Act, does this constitute contempt?

[Ms K]’s position

19 [Ms K] has made written submissions to support her assertion that the contempt application has no basis in law including the following:

“17. Even if the respondent did the conduct complained of by the applicant, the applicant’s application is doomed to fail because such conduct would not constitute contempt.

[2008] FCWA 57

18. Assuming that the conduct alleged extended to procuring the children to swear the affidavits in contravention of s 100B(2), such behaviour would not constitute contempt unless it involved a flagrant challenge to the Court’s authority and was so serious as to warrant such a serious charge.

19. The word “flagrant” means glaring; notorious; scandalous.

Macquarie Dictionary, 4th ed., Macquarie Dictionary Publishers
Pty Ltd, 2005;

20. In no respect could the respondent’s conduct in relation to the proceedings have been regarded as glaring, notorious or scandalous. The respondent’s conduct would not have constituted a flagrant challenge to the Court’s authority, nor would it have constituted such serious misconduct as to warrant a charge of contempt.”

20 [Ms K] referred to In the Marriage of Cooper (1980) 6 Fam LR 288; (1980) FLC 90-870, in which Watson SJ said:

“it is prima facie contempt for a solicitor to file without leave the affidavit of a child being misuse of the court processes to prejudice other persons that is the child in its relationships with its parents, and the respondent parent”.

21 In Cooper Watson SJ was considering a breach of Regulation 116(6) of the Family Law Regulations which then provided, “Except with the prior leave of the court in which proceedings under the Act are pending or are being heard, an affidavit made by a child who is under the age of 18 years shall not be filed for the purpose of those proceedings.”

22 After rejecting the argument that he did not have jurisdiction to deal summarily with the charge of contempt, Watson SJ at page 75,512 said:

“When the matter was last before me counsel for the solicitor sought to withdraw the offending affidavit. That application indicates the solicitor has at long last realised the error of his ways. He has twice appeared before me. Presumably he has learnt from the experience and will not offend in this manner again. I therefore propose to take no further action.”

23 Whilst Watson SJ in Cooper held that conduct breaching the relevant provision was prima facie contempt, it was not found to be contempt. Whether the conduct complained of would properly constitute contempt must depend upon the facts and the circumstances of each case.

24 In this case, the transcript discloses that the Magistrate drew the seriousness of her conduct to [Ms T] on 19 December 2007 and the affidavits were withdrawn.

[2008] FCWA 57

Conclusion

25 In my opinion, even if the facts as alleged against [Ms K] were established, the

Court could not reasonably find that [Ms K] was guilty of contempt. It could not be said that the conduct complained of was so serious and such a deliberate attack on the Court’s authority that she should be punished for contempt and certainly, to adopt the language of Carmody J previously quoted it could not be said to be “so blatant, so defiant of the authority of the judiciary as a whole, and so calculated to undermine public confidence in the court's capacity to protect and enforce their rights, that he should be punished as a contemnor.”

26 I am satisfied that the contempt application has no reasonable likelihood of

success and accordingly, it must be summarily dismissed. Having so concluded the matter, it is unnecessary for me to consider the other matters raised in [Ms K]’s written submissions.

Proposed orders

27 The order I propose to make is as follows:

1. The husband’s Application for Contempt filed 25 January 2008 be dismissed.

I certify that the preceding [27] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate