Kabir & Kabir
[2023] FedCFamC1A 45
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kabir & Kabir [2023] FedCFamC1A 45
Appeal from: Kabir & Kabir (No 2) [2022] FedCFamC1F 874 Appeal number(s): NAA 264 of 2022 File number(s): CAC 2337 of 2019 Judgment of: ALDRIDGE, ALTOBELLI & CAMPTON JJ Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from the dismissal of a contempt application brought against the respondent – Where the appellant asserted two instances of contempt of orders made in the context of parenting proceedings preventing disclosure of confidential documents – Whether the orders had been breached beyond reasonable doubt – Challenges to findings of fact – Challenges to weight – No error established – Appeal dismissed. Legislation: Children and Young Persons Act 2008 (ACT) ss 846
Family Law Act 1975 (Cth) s 93A, 112AP
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Family Law Rules 2004 (Cth) r 15.30(2)
Mental Health Act 2016 (Qld) s 3
Public Health Act 2005 (Qld) ch 4A
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Ibbotson and Wincen (1994) FLC 92-496
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 Appellate Jurisdiction Number of paragraphs: 55 Date of hearing: 29 March 2023 Place: Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 264 of 2022
CAC 2337 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KABIR
Appellant
AND: MS KABIR
Respondent
order made by:
ALDRIDGE, ALTOBELLI & CAMPTON JJ
DATE OF ORDER:
29 march 2023
ORDERS MADE ON 29 MARCH 2023:
1.The Application in an Appeal filed on 10 March 2023 is dismissed.
2.The Application in an Appeal filed on 16 March 2023 is dismissed.
3.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kabir & Kabir has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, ALTOBELLI & CAMPTON JJ:
INTRODUCTION
By Notice of Appeal filed on 7 December 2022, Mr Kabir (“the appellant”) appeals against the dismissal on 10 November 2022 of a contempt application that he brought against his former wife, Ms Kabir (“the respondent”). At the hearing of the appeal on 29 March 2023 we made an order dismissing the appeal and two Applications in an Appeal. These are our reasons for doing so.
The appellant’s contempt application was filed on 8 August 2022 pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Family Law Act”). In essence, the appellant asserted two instances of contempt of the orders made by Judge Hughes on 10 December 2019 and by Registrar Walker-Munro on 30 June 2020, which were made in the context of parenting proceedings preventing the disclosure of confidential documents. The appellant alleged that on two occasions on 30 July 2020, in the Magistrates Court of Australia in City E and during the course of family violence proceedings, the wife disclosed the contents of confidential documents by annexing them to her affidavit filed 22 July 2020, contrary to those orders.
The first charge was withdrawn by the appellant during the hearing, and was dismissed by the primary judge. Nothing more need be said about it.
At [17] of the reasons, the primary judge identified the second charge as follows:
17.…
The second allegation relates to the order of Registrar Walker-Munro in the Family Court of Australia dated 30 June 2020 being order 3. The allegation is that your affidavit dated 22 July 2020 being the affidavit in the [Region O] Magistrates Court was handed up to the Magistrates Court in [City E] [in] 2020, and the contents of those documents were under the order that the parties and their legal representatives were restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the court.
And the specific documents that you’re accused of providing to the [Region O] Magistrates Court are tags 6 being the CYP [Region O] welfare agency document, tag 7 being the Queensland welfare documents, tag 2 being documents produced by the [J Hospital] on subpoena, tag 3 being documents produced by [L Hospital], tag 4 being documents produced by [L Hospital]. Do you admit or deny that allegation?
(Footnotes omitted)
The respondent admitted she had used documents from the subpoenaed material insofar as it related to tag 2, being the records from the J Hospital, but denied all remaining charges.
In relation to the balance of the charges, the respondent submitted that the confidential documents attached to her affidavit were all obtained by her from independent sources, and thus she had not acted contrary to the order.
The basis of the second charge was the order made by Registrar Walker-Munro on 30 June 2020 in the following terms:
It is ordered that:
1.The legal representatives and the Independent Children’s Lawyer have leave to photocopy documents produced pursuant to the section 69ZW order made 25 November 2019 and documents produced pursuant to subpoena to [J Hospital] and [L Hospital].
2.Any photocopies are to remain in the possession of the legal representatives and are to be returned to the [City E] registry for destruction at the completion of the proceedings.
3.The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.
There were four separate bundles of documents that allegedly constituted the second charge, which were identified as follows:
(1)Documents produced by the J Hospital on subpoena – tag 2;
(2)Documents produced by L Hospital – tags 3 and 4;
(3)The Queensland Welfare Agency records – tag 6; and
(4)The Child Youth Protection Service Welfare Agency (“CYPS”) records – tag 7.
As to tag 2, the primary judge found that whilst the publication of the confidential documents was admitted, there was no flagrant challenge to the authority of the Court, and thus no contempt.
In relation to the documents at tags 3 and 4, the primary judge found that reasonable doubt had been established as to the provenance of the documents, and thus the contempt was not proven.
In relation to the documents at tag 6, no documents had in fact been produced by the Queensland Welfare Agency, and thus the respondent had not acted contrary to the order. This contempt was also not proven.
In relation to the documents at tag 7, the primary judge found that a legislative information sharing regime plausibly explained how the documents could have come into the possession of the respondent, and thus the charge was not established beyond reasonable doubt.
BACKGROUND
Whilst matters of background were not expressly dealt with by the primary judge in his reasons, the affidavits filed by both the appellant and respondent in the contempt application, and in the appeal, creates the impression of an acrimonious parenting dispute between them in which the respondent made serious allegations about family violence allegedly perpetrated by the appellant on her, which the appellant denied.
THE APPEAL
Scope of the appeal
As the Full Court of the Federal Court of Australia identified in Bahonko v Sterjov (2008) 166 FCR 415, it is for the appellant to identify the errors in the judgment under appeal and to persuade the appeal court that they were made. The Full Court said at [3]:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
This is an appeal from a decision of a primary judge who was faced with a binary choice: either the contempt was established beyond a reasonable doubt, or it was not. There was no scope for discretion in this regard, and hence it is not an appeal from a discretionary judgment.
It is also important to remember that generally, unless exceptional circumstances are established, a party will be bound by his forensic decisions and conduct of the trial (Metwally vUniversity of Wollongong (1985) 60 ALR 68, see also Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [51]).
Appellant’s applications to adduce further evidence in the appeal
The appellant filed an Application in an Appeal and a supporting affidavit on 10 March 2023 seeking to adduce further evidence in the appeal. The orders sought include:
1.That the Respondent Mother’s affidavit dated 15 November 2019 be adduced as further evidence.
2.That the Respondent Mother’s affidavit dated 28 April 2020 be adduced as further evidence.
3.That the Federal Circuit and Family Court of Australia's Transcript dated 12 September 2022 be adduced as further evidence.
4.That the subpoena material from Domestic Violence and Crisis Services, [City E] dated 22 November 2022 be adduced as further evidence.
5.That the subpoena material from the [T Medical Centre], Queensland dated 22 November 2022 be adduced as further evidence.
6.That the Federal Circuit and Family Court of Australia’s Transcript dated 10 November 2022 be adduced as further evidence.
7.That the Federal Circuit and Family Court of Australia Registry’s communication in relation to subpoena material access from Commonwealth Court’s Portal dated 19 October 2022 be adduced as further evidence.
8.That the Respondent Mother’s affidavit dated 2 December 2022 be adduced as further evidence.
(As per the original)
The power to admit further evidence on appeal is found in s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which is in terms analogous to those previously set out at s 93A of the Family Law Act. It is a discretionary power, the purpose of which was described by the majority in CDJ v VAJ (1998) 197 CLR 172 at [104] as being “to ensure that the proceedings do not miscarry”. They further described the power as being remedial in nature, such that its principal purpose:
109.… is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. …
The majority further considered that:
111.… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. …
The observations of the Full Court point to the necessity of giving consideration to the substantive impact of the proposed further evidence, and, in particular, its capacity to show that the original decision was in error.
The hearing before the primary judge took place on 21 October 2022. The material in Orders 4, 5, 6 and 8 of the appellant’s application all post-date the hearing. They cannot demonstrate error in the original decision. The material in Orders 1, 2, 3 and 7 of the appellant’s application were all available to the appellant at the time of the hearing but were not tendered, and he offers no cogent explanation for not doing so.
Moreover, it seems to us that the appellant must be limited to his grounds of appeal and nothing further, particularly in a criminal matter such as this one. The relevance of some of the material sought to be tendered is not, in any event, established by reference to those grounds.
We were not satisfied that if the further material were allowed it would show that the original decision was in error.
The appellant’s application to adduce further evidence was dismissed for these reasons.
Respondent’s application for an adjournment
The respondent filed an Application in an Appeal on 16 March 2023 seeking that the appeal be adjourned in order for her to secure funding from Legal Aid NSW. We determined to hear that application after we heard the appellant’s submissions. However, after hearing them, we found that we did not need to hear from the respondent and dismissed the appeal. In these circumstances there was no need to consider this application and it was dismissed.
Ground 1
Ground 1 states:
1.In regard to the [L Hospital] documents, the Primary Judge erred in:
1.1.Taking into account the Respondent’s contention that the [L Hospital] documents were obtained directly from the Hospital and the Respondent’s General Practitioner; and
1.2.Failing to take into account relevant legal principles in relation to the [L Hospital] documents. The relevant legal principles include:
a. Mental Health Act 2016 (Qld);
b.Emergencies Examination Authority, Chapter 4A of the Public Health Act 2005; and
c.Family Law Rules 2004 Rule 15.30(2).
The [L Hospital] documents that are pursuant to the above Acts cannot be released to the individual or a third party. The Trial Judge failed to consider these relevant legal principles when finding that the documents were not sourced from the subpoena material.
1.3.Taking into account irrelevant considerations in relation to the [L Hospital] documents. The Primary Judge erred in taking into consideration the outpatient letter as supporting the Respondent's contention that she obtained all the internal documents directly from the Hospital or her General Practitioner.
(As per the original)
This ground relates to the L Hospital documents. It is not in contention that these documents were disclosed in the respondent’s affidavit filed in the Magistrates Court. The respondent contends that the documents were provided to her by the hospital and her general practitioner (“GP”), and were not derived from the documents whose disclosure was prohibited by the order made on 30 June 2020. Doing the best the Court can to understand the appellant’s contention, he seems to be arguing that the primary judge was wrong to take into account the respondent’s evidence in circumstances where the alleged provision of those documents to the respondent was contrary to law and legal principle. In substance it is a challenge to a finding of fact in that it was not open on the evidence, a challenge to the weight given by the primary judge to the evidence, and possibly a failure to consider material evidence.
We note that the appellant faces a high hurdle in order to sustain a complaint about the attribution of weight to a piece of evidence (Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; Gronow v Gronow (1979) 144 CLR 513 at 519–520).
The primary judge deals with the L Hospital documents at [46]–[58] of the reasons for judgment. At [54], his Honour identifies the relevant question to be whether the respondent’s explanation should be rejected, or whether it leaves reasonable doubt about the provenance of the documents annexed to her affidavit. There is no challenge to that formulation of the question.
His Honour noted that there was not a precise correspondence between the L Hospital documents disclosed in the respondent’s affidavit, and the agreed bundle of subpoenaed L Hospital documents. Indeed, there was one more document in the former bundle as compared to the latter. The additional document was a letter from Dr M, the respondent’s psychiatrist. The respondent explained this on the basis that it was received following a request for documents from the hospital. His Honour concluded that the additional document made the respondent’s contention more plausible and that the respondent’s explanation as to the L Hospital documents “should not be rejected” (at [57]). Hence a reasonable doubt arose as to whether the documents had been sourced from the subpoenaed material. His reasons are clear and sufficient to explain his conclusion (Bennett and Bennett (1991) FLC 92-191 at 78,267). There is nothing “glaringly improbable” about this finding (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 (“Robinson”) at [43]).
The appellant’s main complaint was that the respondent’s evidence should not have been taken into account because it was contrary to the appellant’s submissions. That, of course, does not identify error.
The appellant also refers to what he described as legal principles including the Mental Health Act 2016 (Qld) (“the Mental Health Act”), the Emergencies Examination Authority; ch 4A of the Public Health Act 2005 (Qld) (“the Public Health Act”); and r 15.30(2) of the Family Law Rules 2004 (Cth) (“the 2004 Rules”) which he said prevented the wife from being given the documents but also precluded her from using them, regardless of the source (Appellant’s Summary of Argument filed 15 February 2023, paragraph 7). We do not need to consider the latter aspect of this submission because it goes well beyond the scope of the charges which allege breach of court orders limiting the use of subpoenaed material.
During the appeal hearing the appellant could neither indicate the relevant section or sections of the Mental Health Act, nor even explain its relevance other than to say it prevented use of the documents. We note that the main objects of that Act are set out in s 3, none of which have any obvious application to the present case.
There are sections in the Mental Health Act which restrict the dissemination of information by certain people but they are far from absolute in their terms. It is not for us to trawl through the Act to try and determine which sections might bear upon the present issue. More importantly, the only relevance of these sections can be that the respondent could not have received the documents from a source other than the subpoenaed material because no one could have lawfully given her, as the patient, the records. That does not exclude the possibility that someone did, in fact do so.
Likewise, in submissions the appellant could not enlighten the Court about the applicability of ch 4A of the Public Health Act which deals with the health of persons with major disturbance in mental capacity.
The appellant did not take the primary judge to any section of either of these Acts. Had he done so, it is possible that further evidence could have been called to explain any release of the documents. It is now too late to rely on them.
The appellant’s reference to r 15.30(2) of the 2004 Rules is irrelevant as the appellant is alleging that the respondent was in contempt of an order made on 30 June 2020.
As his Honour correctly identified, the onus of proof was on the appellant to demonstrate that the order had been breached beyond reasonable doubt. His Honour found that the respondent’s explanation was sufficient to create a reasonable doubt for present purposes.
No error is apparent. This ground has no merit.
Ground 2
Ground 2 states:
2. In regard to the CYPS documents, the Primary Judge erred in:
2.1.Failing to consider the [appellant’s] evidence relating to the 50 pages of CYPS documents produced under subpoena matching the 50 pages of the Respondent’s affidavit.
2.2.Failing to consider relevant legal principles contained in Family Law Rules 2004 Rule 15.30(2) relating to child welfare records, criminal record, medical record or police record.
2.3.Taking into account the Respondent’s contention that the Domestic Violence Crisis Service (DVCS) had access to the CYPS records and that she was able to obtain the CYPS records through DVCS.
Ground 2 relates to the CYPS documents.
The appellant’s ground of appeal in this regard is unclear. At Ground 2.1, he asserts that the primary judge failed to consider the appellant’s evidence that the documents produced on subpoena matched the documents annexed to the respondent’s affidavit, however, the primary judge found precisely that. Ground 2.1 fails. At Ground 2.2, the appellant asserts, once again, that the primary judge failed to consider relevant legal principles contained in r 15.30(2) of the 2004 Rules relating to child welfare records. As noted above, the rule is irrelevant. Ground 2.2 fails. The appellant also conceded during the hearing that Grounds 2.1 and 2.2 must necessarily fail.
Lastly, at Ground 2.3 the appellant asserts that the primary judge erred in considering the respondent’s contention that the Domestic Violence Crisis Service (“DVCS”) had access to CYPS records who then, presumably, made them available to the respondent.
The primary judge found that there was a precise correspondence between the documents annexed to the respondent’s affidavit and the documents, disclosure of which was prohibited. Whilst the respondent was clearly confused about whether these documents came from CYPS, a government department, or DVCS, an external community based organisation, nothing ultimately turned on this. His Honour correctly focused on the documents, all of which bore a warning that the information in the documents was subject to the confidentiality requirements of the Children and Young Persons Act 2008 (ACT) (“the CYPA Act”). It is clear that his Honour was considering the possibility that the information in question was shared pursuant to the information sharing regime of the CYPA Act.
We note that Div 25.3.2 of the CYPA Act is entitled “Sharing safety and wellbeing information”. This Division outlines that the Minister or director-general can share information that is relevant to the health, safety or wellbeing of a child or young person (including protected or sensitive information) to an information sharing entity, which includes, but is not limited to, the parent of the child or young person, or a community based service which provides services to the child or young person or their family. An information sharing entity can also ask for the Minister or director-general to share this information with them.
The appellant was unhelpful in cherry-picking supposedly relevant provisions of the CYPA Act rather than referring to all relevant provisions. For example, he referred to s 846, which makes it an offence to divulge “protected information” but did not take us to other sections which permit that information to be released in the circumstances set out in those sections. Moreover there is no indication in the transcript that he referred the primary judge to what he contended to be the specific sections of that Act.
At [71] his Honour correctly, in our opinion, concludes that the effect of the above legislative provisions may well have permitted the sharing of the documents such that they came into the possession of the mother through either CYPS or DVCS. His Honour was very careful not to find that the respondent did get the documents from a source other than the confidential documents. He acknowledged there was a doubt and was thus entitled to conclude at [73] that there was no solid basis to reject the account given by the respondent that she had obtained the CYPS material annexed to her affidavit other than through the documents provided to the court. The finding was open on the evidence before the primary judge. Once again, there is nothing “glaringly improbable” about this finding (Robinson).
Ground 3
Ground 3 states:
3. In regard to the [J Hospital] documents, the Primary Judge erred in:
3.1.Failing to take into account relevant considerations in relation to evidence relating to the subpoena material being disclosed to [Ms P], [Mr Q] and in the community. The Trial Judge concluded that the second aspect of contempt was not established due to the manner in which the documents were disclosed not representing a flagrant challenge to the authority of the Court. The Trial Judge stated that the disclosure of the material was to a court, in proceedings being conducted between the same parties (Reasons at #92). However, the Trial Judge failed to take into account evidence of the Respondent sharing the subpoena material beyond the parties to the proceedings.
This ground relates to the J Hospital documents. In substance, this ground contends that in finding that there was no flagrant challenge to the authority of the Court, the primary judge failed to take into account evidence which the appellant contended demonstrated much wider publication of the confidential material than asserted by the respondent.
The primary judge discussed at [80]–[92] what he described as the second aspect of establishing that the respondent was in contempt, namely that the breach of the order in question was a flagrant challenge to the authority of the Court. His Honour correctly observed that this was a matter of fact that needed to be proved beyond reasonable doubt. The primary judge concluded that whilst the respondent was sufficiently aware of the circumstances governed by the orders, the manner in which the documents were disclosed did not establish a flagrant challenge to the authority of the Court because the material was disclosed in court proceedings between the appellant and the respondent. Indeed, his Honour specifically held at [92]:
92.In this case the disclosure of the material was to a court, in proceedings being conducted between the same parties. It was not a publication of the material beyond the parties and a court seized with a dispute between the parties. The restricted nature of the disclosure, being a disclosure in the course of the administration of justice renders a factual conclusion that the breach is a flagrant challenge to the authority of this court, as opposed to a mere breach of the court’s order, as uncertain. That uncertainty means that it cannot be taken that the element of flagrant challenge is made out.
The only evidence of disclosure to the third parties identified by the appellant in this appeal ground was ruled inadmissible by the primary judge on the basis of lack of relevance (Transcript 21 October 2022, p.23 line 45 to p.24 line 25). The appellant accepted his Honour’s ruling, saying “That’s fine, your Honour. I’m in his Honour’s capable hands” (Transcript 21 October 2022, p.24 lines 26–27). No ground of appeal seeks to challenge this ruling.
In any event, quite plainly, such evidence went beyond the scope of the charges and was properly rejected.
There was no admissible finding of fact that could support this ground of appeal. No error of law or principle is apparent. As the Full Court observed in Ibbotson and Wincen (1994) FLC 92-496 at 81,162:
The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s.112AD [of the Family Law Act].
His Honour plainly considered this. This ground has no substance.
COSTS
The respondent was not legally represented and had no costs to recoup, so there will be no costs order.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Altobelli & Campton. Associate:
Dated: 6 April 2023
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