Kabir & Kabir (No 2) - [2022] FedCFamC1F 874

Federal Circuit and Family Court of Australia
(DIVISION 1)
Kabir & Kabir (No 2) [2022] FedCFamC1F 874

File number: CAC 2337 of 2019

Judgment of: GILL J

Date of judgment: 10 November 2022

Catchwords: FAMILY LAW – CONTEMPT – Where the applicant asserts the respondent’s use of material produced under subpoena and s 69ZW material is a breach of Court orders and in contempt of Court – Where the respondent allegedly used the material as annexures to an affidavit in support of a protection order in the Region O Magistrates Court – Where the respondent admits use of some material produced under subpoena without the permission of the Court – Where not otherwise established that material used in Region O Magistrates Court was sourced in material produced under subpoena or pursuant to s 69ZW – Where respondent’s use of material in breach of a Court order – Where no reliance on Hearne v Street obligations – Where respondent asserted a lack of knowledge of obligations under the order – Relevance of lack of knowledge – Where manner and extent of use of material means that breach should not be regarded as a flagrant challenge to the Court’s authority – Contempt application dismissed

Legislation:
Evidence Act 1995 (Cth) s 141

Family Law Act 1976 (Cth) ss 69ZW, 112AP, 102NA

Children and Young People Act 2008 (ACT)

Cases cited:
Hearne v Street (2008) 235 CLR 125

Medlow & Medlow (2017) FLC 93-796

Ibbotson and Wincen (1994) FLC 92

In the Marriage of Tate (2002) 29 FamLR 195

Division: Division 1 First Instance

Number of paragraphs: 93

Date of hearing: 21 October 2022

Place: Canberra

Counsel for the Applicant: Mr Howard appeared only for the purpose of cross-examination

Solicitor for the Applicant: InPrivate Law appeared only for the purpose of cross-examination

Solicitor for the Respondent: Litigant in Person
ORDERS

CAC 2337 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KABIR
Applicant

AND:
MS KABIR
Respondent

order made by:

GILL J

DATE OF ORDER:

10 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The application that Ms Kabir be dealt with for two counts of contempt filed 8 August 2022 is dismissed and each count therein 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kabir & Kabir (No 2)

Details

AGLC: Kabir & Kabir (No 2) [2022] FedCFamC1F 874
Case: [2022] FedCFamC1F 874
Decision Date

CaseChat Overview and Summary

In the case of Kabir & Kabir (No 2), the parties involved were engaged in legal proceedings before the court, where the nature of the dispute centred around the disclosure of certain materials. The proceedings were conducted in the Federal Court of Australia, and the issue at hand was the alleged contempt of court by one party in disclosing restricted material to the court. The court was required to determine whether the disclosure constituted a flagrant challenge to its authority, which would justify a finding of contempt.

The legal issues before the court involved the interpretation of the term "publication" in the context of the court's orders and the threshold required for a finding of flagrant contempt. The court needed to assess whether the restricted disclosure of the material to the court and the parties involved constituted a breach of the court's order, and if so, whether it amounted to a flagrant challenge to its authority. The court also had to consider the implications of the restricted nature of the disclosure, which was limited to the parties and the court, in determining whether the disclosure was a flagrant challenge.

The court's reasoning was that the restricted disclosure of the material was made in the course of the administration of justice and was limited to the parties involved and the court. This limited disclosure meant that the breach did not amount to a flagrant challenge to the authority of the court, as it was not a publication beyond the parties and the court. The court held that the uncertainty surrounding the flagrant challenge element meant that it could not be taken that this element was made out. Consequently, the remaining charge of contempt was dismissed.

The final orders of the court were that the remaining charge of contempt against the party who disclosed the restricted material was dismissed, as the court found that the disclosure did not amount to a flagrant challenge to its authority. The court emphasised that the restricted nature of the disclosure meant that it was uncertain whether the disclosure constituted a flagrant challenge, and therefore the charge was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.COnclusion The remaining charge of contempt is to be dismissed.

Ratio Decidendi

Legal Principle Established

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File number:	CAC 2337 of 2019
Judgment of:	GILL J
Date of judgment:	10 November 2022
Catchwords:	FAMILY LAW – CONTEMPT – Where the applicant asserts the respondent’s use of material produced under subpoena and s 69ZW material is a breach of Court orders and in contempt of Court – Where the respondent allegedly used the material as annexures to an affidavit in support of a protection order in the Region O Magistrates Court – Where the respondent admits use of some material produced under subpoena without the permission of the Court – Where not otherwise established that material used in Region O Magistrates Court was sourced in material produced under subpoena or pursuant to s 69ZW – Where respondent’s use of material in breach of a Court order – Where no reliance on Hearne v Street obligations – Where respondent asserted a lack of knowledge of obligations under the order – Relevance of lack of knowledge – Where manner and extent of use of material means that breach should not be regarded as a flagrant challenge to the Court’s authority – Contempt application dismissed
Legislation:	Evidence Act 1995 (Cth) s 141 Family Law Act 1976 (Cth) ss 69ZW, 112AP, 102NA Children and Young People Act 2008 (ACT)
Cases cited:	Hearne v Street (2008) 235 CLR 125 Medlow & Medlow (2017) FLC 93-796 Ibbotson and Wincen (1994) FLC 92 In the Marriage of Tate (2002) 29 FamLR 195
Division:	Division 1 First Instance
Number of paragraphs:	93
Date of hearing:	21 October 2022
Place:	Canberra
Counsel for the Applicant:	Mr Howard appeared only for the purpose of cross-examination
Solicitor for the Applicant:	InPrivate Law appeared only for the purpose of cross-examination
Solicitor for the Respondent:	Litigant in Person

CAC 2337 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KABIR Applicant
AND:	MS KABIR Respondent

order made by:	GILL J
DATE OF ORDER:	10 NOVEMBER 2022