Matthews and Norris
[2018] FamCA 341
•9 May 2018
FAMILY COURT OF AUSTRALIA
| MATTHEWS & NORRIS | [2018] FamCA 341 |
| FAMILY LAW – CONTEMPT – Where the mother alleges the father misled the Court in prior proceedings concerning their child – Where the father denies the allegations – Concluded the mother’s Application does not appear to enjoy any prospects of success and should therefore be summarily dismissal – Ordered the wife’s application dismissed |
| Crimes Act 1914 (Cth) s 35 Family Law Rules 2004 (Cth) rr 1.10, 10.12 |
| Allesch v Maunz (2000) 203 CLR 172 Lindon v Commonwealth of Australia (No.2) (1996) 136 ALR 251 Matthews & Norris(No.3) [2017] FamCA 461 Norris & Matthews (2017) FLC 93-810 Northern Territory of Australia v GPAO (1999) 196 CLR 553 Re: Colina; ex parte Torney (1999) 200 CLR 386 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Williams v Spautz (1992) 174 CLR 509 |
| APPLICANT: | Mr Matthews |
| RESPONDENT: | Ms Norris |
| FILE NUMBER: | NCC | 2226 | of | 2015 |
| DATE DELIVERED: | 9 May 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 9 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Flintoff |
| SOLICITOR FOR THE APPLICANT: | Oliver Campbell Heslop Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not Applicable |
| SOLICITOR FOR THE RESPONDENT: | Not Applicable |
Orders
The Application-Contempt filed on 8 March 2018 is dismissed with no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Norris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2226 of 2015
| Mr Matthews |
Applicant
And
| Ms Norris |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Pending before the Court is an Application-Contempt filed by the mother on 8 March 2018, in support of which she relies upon her affidavit filed on the same date.
Cursory examination of the Application reveals she alleges the father misled the Court in prior proceedings concerning their only child under Part VII of the Family Law Act 1975 (Cth) (“the Act”), for which perjury she presumably wants the father sanctioned.
The father denies he gave false evidence and resists the mother’s application. He seeks its summary dismissal and, for reasons I shall shortly explain, the mother’s Application should be dismissed.
There is no point making an order for costs in the father’s favour, even if it would be warranted, since the mother is an undischarged bankrupt who lives in New Zealand, so there is very little prospect it could be enforced.
Background
On 30 June 2017, I pronounced final orders between the parties in respect of their only child. The orders provided for the child to live with the father and for him to have sole parental responsibility for the child. No orders were made prescribing the nature of the child’s future interaction with the mother due to her evidence she would cut off contact with the child if she could not live with her (see Matthews & Norris(No.3) [2017] FamCA 461).
The mother appealed those orders but, on 13 November 2017, her appeal was stayed by the Full Court until she paid $20,000 to the father’s solicitors as security for his costs of the appeal (see Norris & Matthews (2017) FLC 93-810). The mother has not paid that sum, either in whole or in part, so the appeal remains stayed.
Application and Evidence
The mother alleged the father’s contempt in the following terms:
The Respondent wilfully made several misrepresentations under oath.
The Respondent wilfully told untruths under oath.
The Respondent made false statements in his affidavits.
She alleged the father did each of those things in June 2017, which is a clear reference to the evidence he adduced at trial before me in June 2017.
However, the mother’s evidence about the father’s alleged contempt was not confined to the trial. It extended to misrepresentations he allegedly made to the Full Court in the pending appeal. The mother deposed:
(1)The reasons of judgment delivered on 30 June 2017 had 33 errors of fact. The large numbers of these errors have come from the misrepresentation of statements and untruths by the Respondent under oath [sic]…
(2)I appealed the orders made, and again the Respondent used a number of untruths and misrepresentations that resulted in an order for me to pay $20,000 as security for the appeal to continue. As I do not currently have the resources or the ability to pay this sort of money, due to being on a disability benefit because of the last physical assault the Respondent inflicted upon me, and with being bankrupt, this has resulted in the appeal being stayed [sic].
(emphasis added)
Furthermore, the mother’s evidence was not confined to the father’s alleged turpitude. It extended to his lawyers. The mother deposed:
(3)I can substantiate that [the father] and his legal team have committed perjury and misrepresented the truth on several occasions and beyond reasonable doubt, in order to persuade the judges, ICL and family consultant [sic].
(emphasis added)
Discussion
The Family Law Rules 2004 (Cth) (“the Rules”) (r 10.12) allow the Court to summarily dismiss an application which amounts to an abuse of process or in relation to which there is no reasonable likelihood of success. Such power within the Rules is a reflection of common law principles, which should be used with “caution” or “rarely and sparingly” to provide relief (see Spencer v Commonwealth of Australia (2010) 241 CLR 118 at 129-132, 138-141; Lindon v Commonwealth of Australia (No.2) (1996) 136 ALR 251 at 255-256).
In this instance, the father applied for summary dismissal of the mother’s application but, even if he had not, the absence of such a formal application by the respondent would not stymy the Court because it is empowered to make orders of its own initiative (r 1.10). Again, such power within the Rules reflects the power enjoyed by all superior courts of record to control their own process (see Allesch v Maunz (2000) 203 CLR 172 at 182; Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 648; Williams v Spautz (1992) 174 CLR 509 at 518).
None of the mother’s allegations against either the father or his lawyers enjoy any reasonable likelihood – or even any realistic chance – of success in the guise of contempt applications and so her Application must be dismissed.
In respect of the father’s lawyers, none of them gave any evidence in the proceedings before me so they could not possibly have perjured themselves, as was alleged. If, alternatively, the mother maintains they made false or misleading submissions in the proceedings before me then she may report their allegedly unethical behaviour to their respective professional bodies for investigation of their conduct. In any event, my decision in relation to the parties’ child on 30 June 2017 was premised upon the law and the evidence, not the correctness of the lawyers’ submissions. It would be highly unusual for a lawyer to be in contempt of court or in breach of established ethical duties by making submissions consistently with their client’s instructions. No aspect of the mother’s evidence adduced in support of her Application revealed any basis upon which it could be rationally contended the father’s lawyers acted unethically, let alone in a way that was contemptuous of the Court. Her complaint about them, couched as an allegation of their contempt, is misconceived. That is to say nothing of the irregularity of the mother giving evidence alleging their impropriety without even joining them as parties to her formal application.
In respect of the father, the mother’s contempt application confronts two impediments. First, her mere belief in the father’s dishonest evidence does not prove his dishonesty. Parties often have quite different perceptions about the circumstances surrounding their litigious disputes. Their disparate perceptions may be capably explained by honest mistake, not just by dishonesty. The mother is wrong to presume that any inconsistency between the evidence given respectively by her and the father necessarily proves the father’s mendacity. Secondly, even if the mother is correct and the father did lie in his evidence in one or more respects, the remedy for the perjury is not a contempt application filed with this Court. The jurisdiction of this Court to punish a contempt committed in its face should be exercised with great caution and be resorted to in only the clearest of cases (Re: Colina; ex parte Torney (1999) 200 CLR 386). The intentional provision of false evidence could conceivably be construed as an abuse of process which tends to interfere with the due administration of justice, but is not the essence of contemptuous conduct. If it were otherwise, contempt applications for giving false evidence would be commonplace and not then reserved for cautious use in only the clearest of cases, as the High Court stipulated. Giving false evidence is an offence so, instead, the mother should report her allegation of the father’s perjury to the Director of Public Prosecutions (Cth) for investigation and, if thought warranted, his prosecution for an offence under s 35 of the Crimes Act 1914 (Cth).
Finally, this Court has no jurisdiction to entertain any contempt allegation made by the mother against the father or his lawyers in respect of their conduct in the appeal proceedings before the Full Court. That would be a matter for the Full Court, not me.
For those reasons, the mother’s Application does not appear to enjoy any prospects of success and is therefore amenable to summary dismissal. I make an order to that effect. The Application-Contempt filed on 8 March 2018 is dismissed with no order as to costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 May 2018.
Associate:
Date: 18 May 2018
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