K and T
[2008] FCWA 106
•26 AUGUST 2008
[2008] FCWA 106
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY LAW ACT 1975 |
| LOCATION | : | PERTH |
| CITATION | : | K and T [2008] FCWA 106 |
| CORAM | : THACKRAY CJ | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN |
|
AND
T
Respondent
Catchwords:
CONTEMPT - In face of Court - where legal practitioner sought to hand up in Court
affidavits of children - whether legal practitioner breached
s 100B(2) of the Family Law Act 1975 - contempt not made out - application dismissed
Legislation:
Family Law Act 1975, s 100B, s 112AP
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self Represented Litigant |
| Respondent | : | Mr Rynne |
[2008] FCWA 106
Solicitors:
| Applicant | : |
| Respondent | :Case(s) referred to in judgment(s): |
Cooper and Cooper (1980) FLC 90-870
K and K [2008] FCWA 57
M and M [2004] FamCA 843
Witham v Holloway (1995) 183 CLR 525
[2008] FCWA 106
1 The Form 19 Application before the Court this afternoon is that of [Mr K] filed on 25 January 2008 which originally contained a series of complaints, but which today was narrowed down to one complaint. The complaint is that the respondent, [Ms T], was in contempt of Court for having on 13 December 2007 in this Family Court, handed up for filing affidavits of two children, [A] and [S] [K] who were 10 and 11 years of age, in knowing breach, it is alleged, of s 100B(2) of the Family Law Act 1975.
2 [Mr K] swore an affidavit on 9 January 2008 setting out the evidence in support
of the application. Most of the evidence has been struck out as either relevant to parts of the complaint that were not pursued or for formal reasons, but most of the factual material is not really in dispute.
3 I perceive that this is an application brought pursuant to the provisions of s 112AP of the Family Law Act 1975. Section 112AP(1) indicates that:
“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.”
4 There is no contravention here of an order of the Court, so the application is brought pursuant to the provisions of s 112AP(1)(a).
5 Section 112AP(2) indicates that “In spite of any other law, a court having
jurisdiction under this Act may punish a person for contempt of that court”, and it goes
on to make various other provisions for penalty and so on.6 A case of contempt under s 112AP(1)(a) is required to be established beyond
reasonable doubt. Apart from any other authorities there is that of Witham v Holloway (1995) 183 CLR 525 referred to in submissions that were made earlier by counsel for the respondent.
7 As I have said, much of the information upon which [Mr K] relies is
acknowledged. It is true that on 13 December 2007 [Ms T], who was then counsel for the former wife of [Mr K], appeared before his Honour Magistrate Judges and handed up to the Court for filing a number of affidavits, two of which are the affidavits of the children to whom I have already made reference.
8 [Mr K] has properly drawn attention to the fact that in handing up the affidavits,
[Ms T] made specific reference to two of the deponents who were adults. The other
witnesses were referred to by the expression “et cetera” on page 3 of the transcript.9 The evidence of [Ms T] is that she was exceedingly busy at the time. She said
she had worked to midnight the day before the hearing and that the affidavits were prepared by either her client or by her client’s daughter, who is a legal practitioner. She says these were all presented to her at her office on the afternoon prior to the hearing on 13 December 2007. She gave some evidence about having challenged her
[2008] FCWA 106
client in relation to the use of affidavits by children, but she seems to be saying that she was convinced by statements made by her client that all was in order because the affidavits had been prepared by a legal practitioner and because there was an Independent Children’s Lawyer.
10 She further says that she reflected on the matter again the following day when
she was attending another hearing at the Children’s Court and wondered why the affidavits had been prepared by her client or her client’s daughter in circumstances where there was an Independent Children’s Lawyer who might have been expected to have prepared the affidavits.
11 In any event, she says she then came to the Family Court and was involved in
another matter and then proceeded straight into this matter before Magistrate Judges. She says she handed up the affidavits without reading them, which is quite an extraordinary thing to say, of course. Whether or not she read them, she was aware that she was handing up affidavits that were sworn by children and she does not suggest that she was unaware of the legislative provision that is designed to prevent affidavits being sworn by children.
12 It was submitted on [Ms T]’s behalf that by handing up the affidavits she was,
in effect, seeking leave to file the affidavits and that if the affidavits were received, it would be perceived that leave had been granted and the statutory requirement thus satisfied. It is quite a clever submission but it entirely ignores the fact that the Magistrate was not told what leave was being sought, and in this case, of course, what was required was very specific leave to rely upon affidavits of children.
13 Watson SJ in Cooper and Cooper (1980) FLC 90-870:
“it is prima facie contempt for a solicitor to file without leave the affidavit of a child being a misuse of the court processes to prejudice other persons that is the child in its relationships with its parents, and the respondent parent.”
14 His Honour was there dealing with a Regulation similar to s 100B(2) of the
Family Law Act 1975, although there are some significant differences in that the Regulation then related to filing of an affidavit whereas the statute now refers to the swearing of the affidavit.
15 In any event, his Honour went on to say in his judgment that:
“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. Presumably he has learnt from the experience and will not offend in this manner again. I therefore propose to take no further action.”
16 So all his Honour did there, in what I think would necessarily be regarded as
obiter dicta, was to say that prima facie the filing of such an affidavit constituted a contempt of Court. I do not consider it necessary to indicate whether I am of the same view. I can proceed on the basis that it is possible that in appropriate circumstances
[2008] FCWA 106
the filing of such an affidavit or affidavits of children would amount to a contempt of
Court.17 Crooks J has earlier this year been required to rule on contempt proceedings
commenced by [Mr K] against [RK] who is the legal practitioner who is alleged to have prepared the affidavits. His Honour in K and K [2008] FCWA 57 referred to the judgment of Carmody J in M and M [2004] FamCA 843 as a convenient statement of the law relating to s 112AP(1)(a). In that matter his Honour said at paragraph 23:
“The purpose of s 112AP(1)(a), by contrast [to s 112AP(1)(b)], 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. It is to preserve and protect community confidence in the integrity of the administration of justice.”
18 His Honour went on to say at paragraph 24:
“Thus, the question with respect to the interference contempt is whether the respondent’s conduct … 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].”
19 What can be observed in this case is that there was, on the face of it, a breach of
s 100B(1) of the Act in that affidavits of children were sworn without the Court first having made an order allowing that to occur. It has been properly conceded that [Ms T] did not prepare the affidavits and by the time they came to her attention, s 100B(1) had already been breached. Section 100B(2), however, provides that: “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).”
20 There is some question in my mind as to whether or not the mere tendering of an
affidavit by a child constitutes the calling of that child as a witness, but that is a matter
that can be left for another day.21 A more important question, even if “all the other boxes are ticked”, is whether or
not the behaviour about which [Mr K] has complained is so blatant or so defiant of the authority of the judiciary as a whole or so calculated to undermine public confidence in the Court’s capacity to protect and enforce rights that this is an appropriate case for there to be a finding that the respondent is in contempt of the Court.
22 [Mr K] himself, when he wrote to the Principal Registrar about this matter,
apparently said that one of two things had occurred when the affidavits were tendered; either that there had been a contempt of Court or that the respondent was incompetent in her conduct of this matter.
[2008] FCWA 106
23 As I said at the outset, because these are quasi-criminal proceedings, the
complaint must be proved beyond reasonable doubt. If there is some explanation of the respondent’s behaviour that is reasonably open, other than that she was in contempt of the Court, then the respondent is entitled to be given the benefit of the doubt and is therefore entitled to an acquittal.
24 This leads me necessarily to say something about the demeanour and evidence
of the respondent today. Her conduct by halfway through her cross-examination was such that her own counsel was moved, and I understand why, to seek an adjournment out of concern for the respondent’s state of health.
25 I appreciate that these proceedings are exceedingly stressful to the respondent
but there are some things which must be noted for the record. Firstly, that notwithstanding she was here today to defend a charge of contempt of the Court, she kept the Court waiting almost 15 minutes while she sought to obtain some documentation from her car that was apparently parked across the road. This ought not to have taken anywhere near the time to collect as was suggested had been taken.
26 Secondly, from the time she was first observed in Court, the respondent was not
only averting her gaze from the applicant but she was holding her hand up so that she could not see him. Whenever she moved around the courtroom she kept as far away from him as possible. She continued to hold her hand up between herself and the applicant during the time she was giving evidence. Then ultimately she picked up a tissue box and held the box adjacent to her head (i.e. between herself and the applicant) for the balance of her cross-examination - and then again whilst she was seated behind her counsel.
27 As I say, I can accept that the respondent finds involvement in proceedings with
[Mr K] to be stressful. I nevertheless have to say that the evidence that the respondent gave and the manner in which she gave it gives rise to, if I can put it at its lightest, considerable disquiet on the part of the Bench in relation to the respondent. It was very difficult to control the manner in which she gave her evidence. She was garrulous in the way in which she responded. She said some things that were fairly remarkable for a legal practitioner.
28 These things may well be able to be explained by virtue of the stress that the
respondent is feeling in relation to this particular part of the litigation. However, I have taken the opportunity to peruse parts of the transcript of 13 December 2007 that was handed up as Exhibit 1. I must say that there were also aspects of the manner in which she chose to present her case on that day which, to say the least, gave rise to disquiet on the part of the Bench. I note from reading the transcript that the Magistrate had to point out to the respondent that the way in which she conducted at least part of her case was not the manner in which one might anticipate that a legal practitioner would conduct themselves in proceedings.
29 In the ultimate analysis, I am satisfied that the respondent’s conduct in tendering
affidavits of children, although quite inappropriate and, as she admits herself, a serious error of judgment, was not so blatant and defiant of the authority of the judiciary and calculated to undermine public confidence in the Court’s capacity to protect the rights of the public as to make it appropriate for her to be seen as being in contempt of Court.
[2008] FCWA 106
On the contrary, it is not only an option available to me to consider, but my finding, that her behaviour resulted from her incompetence, rather than from any contempt. On that basis the charge is not made out and the application is dismissed.
I certify that the preceding [29] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
0
2
1