Marshal of the Family Court of Australia & Kendling

[2007] FamCA 1128

FAMILY COURT OF AUSTRALIA

MARSHAL OF THE FAMILY COURT OF AUSTRALIA & KENDLING [2007] FamCA 1128

FAMILY LAW - CONTEMPT in the face of the Court – leave to Marshal to withdraw charge

FAMILY LAW - COSTS - Marshall wholly unsuccessful – timely concession – behaviour of witness considered

Family Law Act 1975 (Cth) s 117 (2A)(c), (e) and (g)

Witham v Holloway (1995) 183 CLR 525

APPLICANT: The Marshal of the Family Court of Australia

DEFENDANT: Ms Penelope Kendling

FILE NUMBER: SYF 2903 of 2003

DATE DELIVERED: 21 August 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 21 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wigney

SOLICITOR FOR THE APPLICANT: Australian Government Solicitor

COUNSEL FOR THE DEFENDANT: Mr Mater

SOLICITOR FOR THE DEFENDANT: Broun Abrahams Burreket

Orders

1.By consent, the Marshal have leave to withdraw the charge made orally by Justice Cronin on 19 July 2007 against Penelope Kendling for flagrantly challenging the authority of the Court. 

2.The Marshal pay to Penelope Kendling an amount of $1,187.00 being the assessment of one half of her costs from 2 August 2007 until today on a party/party basis. 

IT IS NOTED that publication of this judgment under pseudonym The Marshal of the Family Court of Australia & Kendling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2903 OF 2003

THE MARSHAL OF THE FAMILY COURT OF AUSTRALIA

Applicant

And

MS PENELOPE KENDLING

Defendant

EX TEMPORE REASONS FOR JUDGMENT

1.In this matter I made an order on 30 July 2007 that the Marshal of the Family Court of Australia be appointed as prosecutor in relation to the charge of contempt of Court against Penelope Kendling which was orally made by Cronin J on 19 July 2007.  The Marshal appeared before me on 2 August 2007.  On that day, Ms Kendling was represented by Mr Mater and his instructing solicitor.  The Marshal on that day sought an adjournment to today so that he could obtain advice in relation to the future of the prosecution. 

2.Today I have made an order, by consent, that granted leave to the Marshal to withdraw the charge that had been made orally by Cronin J on 19 July 2007 against Ms Kendling.

3.That charge was laid following an incident that happened on 18 July at around about 4.40 pm in the afternoon.  Ms Kendling was giving evidence in the matter of Kendling & Kendling.  She was being cross-examined by Mr Richardson SC.  In response to a question from Mr Richardson she said the words, "I'm finished with this.  I don't want to listen to this any more.  I'm sorry, I've had enough of this." 

4.It is common ground that she then, without permission, left the witness box.  His Honour then said to Mr Richardson that he intended to adjourn and he addressed counsel for the husband indicating to her that she should have a chat with Ms Kendling about her obligations as a witness.  The following day, when the matter resumed, Ms Kendling was in the witness box but before anything else happened, senior counsel for the wife invited his Honour to take a certain course of action.  It was asserted that, as Ms Kendling was leaving the witness box, she uttered the words, "You fucking bitch" and directed those words towards the wife.  It is not disputed by Ms Kendling that she said those words as she left the witness box. 

5.As a result of the behaviour of Ms Kendling, Cronin J charged her with deliberately acting in a grossly insulting manner, flagrantly challenging the authority of the Court whilst it was sitting by uttering the words, "You fucking bitch" to the wife, a party to the proceedings before the Court, and did so in an offensive manner, and in doing so committed a contempt of the Court. 

6.As counsel for the Marshal has pointed out, in order to establish the charge, the Court has to be satisfied that there was real tendency to interfere with the course of justice.  I would add that because the alleged interference is a criminal rather than civil contempt, the Court needs to be satisfied as to each element of the charge to the standard of beyond reasonable doubt (see Witham v Holloway (1995) 183 CLR 525). The Marshal has obviously considered the matter and taken advice and has, on reflection, decided that it may have been that that the Marshal would not have been able to convince the Court, to the necessary standard, that there had been an interference with the course of justice.

7.As a result, by consent, I have granted the Marshal leave to withdraw the charge against the defendant. 

8.Mr Mater, on behalf of the defendant, has made an application that the Marshal pay the defendant’s costs.

9.Mr Mater relies on s.117(2A)(e) Family Law Act. I accept his submission that the Marshal has been wholly unsuccessful.

10.Mr Wigney for the Marshal relies on s.117(2A)(c) and (g).

11.Subsection 117(2A)(c) relates to the conduct of the parties during the proceedings.  Mr Wigney, in my view, correctly submits that the timely manner in which the Marshal has made the concession weighs in his favour.

12.Section 117(2A)(g) says I should consider:

“such other matters as the court considers relevant.”

13.I do consider it relevant that Ms Kendling behaved in the manner which I have described earlier. 

14.Tendered in this matter by consent was a schedule of estimated costs incurred by the defendant (Exhibit A) from 19 July 2007 on both an indemnity and party/party basis. 

15.No submissions have been directed to the issue of indemnity costs by Mr Mater and I do not see any basis for an order for indemnity costs in this matter.

16.The Marshal became a party to these proceedings on 2 August 2007, and in my view costs against the Marshal can only be ordered from that time. 

17.This is a discretionary matter for the Court. The general rule under s.117(1) is that each party would bear their own costs. However, balancing s.117(2A)(e) on the one hand and matters under s.117(2A)(c) and s.117(2A)(g) on the other hand, I consider that it is just to make an order that the Marshal pay one half of Ms Kendling's costs from 2 August 2007 until today on a party party basis.

18.Having regard to the issue of proportionality I think it appropriate that I assess those costs myself.  By reference to exhibit A, one half of the costs on a party party basis is in the sum of $1187.  I will make an order in that amount. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the extempore reasons for judgment of the Honourable Justice Watts

Associate

Date:  12 September 2007