Millar and Oakley (No 2)
[2018] FamCA 48
•6 February 2018
FAMILY COURT OF AUSTRALIA
| MILLAR & OAKLEY (NO. 2) | [2018] FamCA 48 |
| FAMILY LAW – CONTEMPT – where father refuses to sign authority as ordered to enable mother and children to endeavour to leave Country B – where there is no plausible explanation – respondent found guilty and matter adjourned for submissions relating to penalty and for respondent to obtain legal representation. |
| Family Law Act 1975 (Cth) |
| LGM v CAM (2006) FLC 93-267 | ||
| APPLICANT: | Ms Millar | |
| RESPONDENT: | Mr Oakley |
| FILE NUMBER: | MLC | 2195 | of | 2016 |
| DATE DELIVERED: | 6 February 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 30 January 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Goddard |
| SOLICITOR FOR THE APPLICANT: | Ebejer & Associates |
| THE RESPONDENT: | In Person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Taft Lawyers |
Orders
That paragraphs 2-4 of the application in a case filed 23 January 2018 are dismissed.
That the application filed 15 December 2017 is dismissed.
That the father’s application for an adjournment of the contempt application filed 20 November 2017 is refused.
HAVING FOUND THE RESPONDENT HUSBAND GUILTY OF CONTEMPT OF COURT:
The application for contempt filed by the wife on 20 November 2017 is adjourned to 9.00am on 12 February 2018 for sentencing.
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 Millar & Oakley (No 2) 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 MELBOURNE |
FILE NUMBER: MLC 2195 of 2016
| Ms Millar |
Applicant
And
| Mr Oakley |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
These reasons concern a finding that I made at 5.10pm on 30 January 2018 that Mr Oakley (“the father”) was guilty of contempt of court based upon an application brought by Ms Millar (“the mother”) on 20 November 2017.
There have been a number of judgments in proceedings between these parties (in addition to an order of Judge Burchardt in the Federal Circuit Court of Australia). Some of the remarks of his Honour set the background for the current application. On 16 May 2016, his Honour said:
[1]…
[2]…The mother, who is wholly supported by the Independent Children’s Lawyer, seeks that orders be made to compel the father to bring the two children with whom we are concerned back to Australia. It is implicit in that position that should the father fail to comply he would be coerced by the contempt path. The father resists any orders compelling him to return the children to Australia. He further resists the order presently in place and sought to be continued by the mother, that he himself be restrained from departing Australia should he wish to do so.
…
[6]The two children, [X], born … 2012, and [Y], born … 2014, were born in Australia. In September 2014 the parents and the children returned to [Country B]. There is a lot of dispute about exactly what occurred on that occasion, but what is not in dispute is that the father returned to Australia with the children leaving the mother behind. This is an interim hearing and nothing I say represents a final concluded view of the facts, but it would seem to me fairly clear on an interim basis that the father took steps to have the mother’s spousal visa cancelled and inter alia failed to inform the competent authorities of the existence of the children.
[7]…It took the mother until February 2016 to get back into Australia...The father departed to [Country B] with the children on 9 April. The children are presently living in [City A] with his mother…
…
[30]The mother and the Independent Children’s Lawyer seek to coerce the father, as I indicated earlier, by requiring him, within 48 hours, to take steps, in effect, to have the children returned. The father was, it seems, able to move the children to [Country B] pretty quickly when he decided he wanted to do so, but a period of 48 hours is manifestly insufficient. I am going to give the father 14 days to take the steps indicated in order 1 and there are a number of things that may be thought to be interrelated with that. First of all, it will enable him to find the funds he needs to do these things. Secondly, he can take further legal advice and consider his position. Third, should he be so advised, he may seek leave to appeal.
[31]I am giving him time to do that, because there is a very real prospect – and there is no way of obfuscating this – that if the father does not comply with order 1, he will go to jail for contempt and he would be likely to stay there until such time as he does comply. That is not an option that would be ruled out and it is a very serious option. It goes without saying that orders of this character are an enormous infringement of the father’s ordinary civil liberties....(my emphasis)
It will therefore be apparent that his Honour determined the interim parenting dispute after deciding that Australia was the appropriate forum. The father was ordered to facilitate the return of the children. He failed to do so. The proceedings were transferred to this Court.
I determined a number of matters and reiterated that Australia was the appropriate place for the parenting dispute to be heard but the dilemma has always been that the mother and the two children are restrained from leaving Country B. (see Oakley & Millar (and various derivations) [2017] FamCA 415, [2017 FamCA 513 and [2017] FamCA 1093)
It is therefore sufficient to say that the mother and the parties’ two children X aged five and Y aged almost four are caught in a political tangle. As will be evident from a reading of the judgments mentioned above, Australian courts have found that Australia is the appropriate forum for the determination of the parenting dispute between the mother and the father.
Subsequent to the judgment of this court, it would seem that a court in Country B has rejected the forum finding and held that it is appropriate for the jurisdiction over the children (and the mother) to be determined there. It remains unclear what that court has been told.
There is a dispute between the parties about the capacity of the mother to bring the children back to Australia. From the father’s perspective, a court in Country B has ruled that she will never be allowed to do so until the children attain the age of 18 years but from her perspective, upon receipt of a consent or an authorisation by the father (which I understand would mean he would be withdrawing his objection to her leaving Country B), the court would immediately allow her and the children to travel back to Australia. I am not in a position to determine which of those two versions is correct and am hampered by not only different processes but also arguments vociferously put by the father, that the mother has forged documents; that people have lied to obtain the orders of this court and of the Federal Circuit Court. I am not in a position to determine any of those issues notwithstanding the father says that he has “proof” of his assertions.
Before turning to the facts, I concede that the court has struggled with a number of matters. They include the interpretation of the translated documents, just what has been happening in Country B, and in which court proceedings have been conducted in Country B. The proceedings in Australia have been of unnecessary length and much time has been wasted because the father is argumentative and repetitive on many of the issues that he says forms the basis of an injustice to both he and his children.
The Federal Circuit Court initially restrained the father from leaving Australia and this court subsequently supported that court’s position. The father has made a number of applications for a discharge of that injunctive order all of which have been refused.
Significantly, on 4 July 2017, I dismissed the father’s application for a discharge of the injunction. Against that order, the father has appealed and there is a prospect that the appeal may be heard in March 2018. The father vociferously argues that orders other than those relating to the removal of the injunction precluding him from leaving Australia are the subject of the appeal. Interestingly, he filed an amended Notice of Appeal but did not change the fact that he was only seeking to appeal against the dismissal of his application.
Thus, the orders which are the subject of the enforcement by the contempt application are not the subject of appeal at present. On a number of occasions, I endeavoured to explain that to the father but he refused to listen until ultimately he indicated that if I was correct, he would go and rectify the problem by amending his Notice of Appeal. Having regard to the fact that I have presumed he has been through a directions hearing and would be well out of time in respect of the order made in earlier times, he faces difficulties, but at least, he is aware of them.
The focus of the law in relation to contempt lies in s 112AP of the Family Law Act 1975 (Cth) (“the Act”). It provides that in spite of any other law, a court having jurisdiction under the Act may punish a person for contempt of that court (s 112AP(2)). The applicable procedures are set out in the rules.
Section 112AP(4) provides that where a person is found to be in contempt, the court may punish that contempt by committal to prison or fine or both. The court may make an order for punishment on terms, suspension of punishment or the giving of security for good behaviour (s 112AP(6)). The court has power under s 112AP(7) to discharge a person from custody notwithstanding that they have not served the relevant ordered custodial time.
The coercive nature of the contempt power is designed to endeavour to have the court’s orders carried out. To succeed however, the applicant needs to establish that the contravention of any order involved a flagrant challenge to the authority of the court (s 112AP(1)(b)). The standard of proof applicable in such an application is the criminal standard of proof beyond reasonable doubt (Tate and Tate (2002) FLC 93-107 which follows Witham v Holloway (1995) 183 CLR 525). In this case, I am satisfied on the evidence to which I turn below that the wife has established beyond reasonable doubt that the father is flagrantly challenging the authority of the court.
It is also important to acknowledge the procedural requirements and in this case, having given the father an opportunity to indicate his position, he became argumentative. I have therefore concluded that he denied the allegation or at best, said he had a reasonable excuse for doing what he did. In any event, that position put the mother to the test of having to prove beyond reasonable doubt the challenge to the court’s authority.
It is interesting also to contemplate Nieuwstraten and Nieuwstraten (1987) FLC 91-826, where the court considered that as a prelude to being in contempt, warnings in relation to not complying with court orders were not really necessary. In this case, that does not matter anyway because on any reading of the judgment of Judge Burchardt above, the father was on notice that he had to cooperate in respect of the return of the children to Australia and a failure to do so, placed him in a situation of facing indefinite imprisonment.
When cross-examined, the father acknowledged that he was aware of the orders made by the court requiring him to cooperate in any way that would assist in the return of the children.
This is not a case in which there can be any doubt about the position adopted by the father. From the moment in 2017 when he was required to sign a document that may have assisted in the return of the children, he refused. He repeated that refusal in the courtroom including under oath in cross-examination saying that he would never sign the document. The father maintains adamantly that the orders should never have been made but they are not presently the subject of any appeal and even if they were, he has not satisfied me that the orders were based upon some false evidence at the time. On a number of occasions, I pressed him to indicate what it was that justified his position in refusing to sign the documents. As best I can discern, the father has four specific reasons. I reject all of them.
The first reason or ground was that if he signed the document, it may prejudice an application he says he has instigated with the Australian Federal Police who need to know whether or not the mother has lied to them or to a court relating to their involvement. To the extent that it is necessary to say so, it ought be obvious that the Australian Federal Police can take no action against the mother even if they were satisfied that she had so lied because she is not within Australia and on the father’s case, never will be. To the extent that it is argued that the father’s consent may act as a concession by him, it is hard to understand how that could be so, bearing in mind he is under compulsion of law to sign the documents requested of him. Accordingly, even to the extent that he may be prejudiced in some way, and I am unable to see what that prejudice is, I reject that it is a basis not to comply with the orders of the court.
His second reason was that at the Magistrates’ Court at Suburb C, an order was made under the state family violence laws precluding the mother from coming within 200 metres of the father and the children. A copy of the final order was not before this court. There was an interim order provided which seems to me to be of little or no consequence because it was made on an exparte basis. The father argued that there was a final order subsequently made, albeit he did not produce it, but in any event, it is asserted by counsel for the mother that that order expired in December. The father initially argued that there was some form of automatic renewal of the order each year but I reject that as being inconsistent with Victorian law. In any event, on the basis of his own evidence, it would seem that the father has not made any application to the Suburb C court for a renewal of the order which otherwise expired, on his version, in December 2017.
Even if one accepted that there was a basis to say that the mother could not come back into Australia with the children because she would be in breach of a state law, there are ample powers within this court’s jurisdiction to resolve that dilemma at law. However, the farce of what the father is putting to the court about the mother be required to keep away from the children can be seen in the fact that, resist as he may, these children have remained in their mother’s care in Country B. There is no better example of that than as follows.
It seems that through his relatives, the father sought some form of custody proceedings in Country B and the mother was ordered to deliver the children to their paternal grandmother and she refused. She was then arrested and imprisoned for three days. This arrest occurred only in December 2017. At the conclusion of the three days, for reasons that remain obscure, the paternal grandmother agreed with the court for the mother to be released. In my view, the only inference open is that the grandmother and the court had no concern about the mother not only coming back into contact with the children, but also having the possession of them because the mother had not handed them over in the first place.
Insofar as it is necessary for me to make any findings therefore in respect of the family violence aspect, I find there is no basis for the father to decline to sign the necessary documents based upon some spurious argument in relation to the intervention order made in the Suburb C Magistrates Court.
The third ground was that even if he signed the necessary document, it would not help the children because they could not get out of Country B. This is a disputed issue and one about which I am unable to make significant findings. However, in the course of the proceedings, it transpired that the mother was available by telephone from Country B and she gave evidence and was subjected to cross-examination by the father.
Whilst much of the father’s cross-examination of the mother was irrelevant to the issue in dispute, I asked the mother if the father signed the necessary document, what she understood a judge in Country B would do. Without hesitation, she said that the judge would lift the travel ban and she would be able to leave that country with the children immediately. She added that the father’s brother was resisting that occurring. However, if she is correct, the orders of this court, which are the subject of the contempt application, would be efficaciously implemented.
The father put to the mother in cross-examination that a judge of Country B court had indicated that the children would not be able to leave that country until they turned 18 years of age but she did not seem to agree. Just how relevant that is remains unclear because it seems that the custody case has now been “closed” in Country B and another jurisdiction is now handling a case the details of which also remain obscure.
Whichever version of the parties is correct, it defies logic not to at least endeavour to try the position that the mother urges and which has already been ordered. That was what was contemplated by Judge Burchardt in 2016. Accordingly, I reject that there is any foundation for the father’s concern that his actions may not help the children coming out of Country B.
It is also important to observe here that in submissions in an earlier application, the father told the court he just needed two weeks to go to Country B and therefore needed the lifting of this court’s injunction against him leaving Australia. When I asked him whether that meant that he could go to Country B to collect the children and bring them back to Australia, he indicated that that was not what he was saying. I therefore have no understanding of what position the father was adopting in relation to the return of the children if he did go to Country B.
The fourth point made by the father was that if he signed the document, the mother and her associates would ensure that, as he was in Australia, he would go to gaol for ten years. The father did not articulate the foundation for that assertion. There are certainly elements of paranoia about such a statement. He did not indicate what criminal offences were being contemplated such that he could face the prospect of imprisonment for ten years.
This court must focus on the parenting issue. To the extent that the Australian Federal Police may be involved or for that matter, Victorian Police have some interest in the welfare of these children, it remains obscure as to why the return of the children would prejudice the liberty of the father.
In the same context, the father said he was aware of the activities of the mother in Country B. He made reference to her association with “communists” and the actions of her “associates” who, as a result of social media, are said to have breached s 121 of the Act. I pointed out to him that this was a matter for the Commonwealth attorney-general and he seemed enlightened by that comment. It transpires however that he was aware of the political issues surrounding his children because he mentioned the name of the Honourable Ms Bishop as the Australian Foreign Affairs Minister whom he intends to approach for assistance. It is difficult to understand why the political process is a problem here but I am satisfied that the father does not want to bring the children out of Country B or at least if he does, he does not want the mother brought as well.
In my view, the assertions of the father about what litigation he may face in Australia could not be seen as prejudicing the welfare of the children. Judge Burchardt made findings in 2016 about the appropriate forum and his Honour’s orders have not been the subject of any appeal by the father.
Accordingly, in my view, the fourth point raised by the father is simply obfuscation and of no merit.
The mother’s evidence was that she had given instructions for the contempt proceedings and that had been undertaken by email instructions with her solicitor. Whilst her English was limited, I am satisfied she clearly understood the questions she was being asked including some convoluted ones put to her by the father. In response to a question by the father, she was unequivocal in saying that she made the decision to pursue contempt and no-one else was writing letters for her. In respect of an assertion by the father that her former Country B lawyer’s letterhead had been somehow fraudulently used, she rejected that and said that she had witnesses who would support her.
Whilst the father wanted to ask many questions about issues relating to the welfare of the children and the parties’ personal dispute, I constantly reminded him that the issue was about the signing of the document but he maintained his position that he wanted to ask questions. Having regard to the nature of the matters, I ruled that most of his questions were irrelevant and I would not allow him to put them.
The mother’s solicitor Ms Ebejer also gave evidence and she responded to the father’s cross-examination by indicating the sorts of instructions she had and the letters she had written. Most of her evidence was uncontroversial because the father does not dispute that he received the letters and requests for him to sign authorisations to be sent to Country B.
Nothing that was put to Ms Ebejer, even if it could be remotely seen to be relevant to the immediate issue, seemed to suggest that there was a basis for the father’s constant refrain that the solicitor was lying or somehow involved in unprofessional and inappropriate conduct. The father constantly made reference to his complaints to the Legal Services Commissioner. I do not know what that those are. Pejoratively, he constantly described the mother’s solicitors and counsel as “shifty” and “liars”. He said the legal aid authorities were being misled. He confirmed that as late as the day before the hearing, he had spoken to a number of people of the Legal Services Commission whom he described as being very concerned with the conduct of the mother’s lawyer. I am uncertain as to what those concerns are and the father did not bring any evidence to indicate that the Legal Services Commissioner wanted to intervene in the proceedings or delay the proceedings whilst their investigations continued.
In the circumstances, I can find no reason to be critical of the solicitor for the mother. She gave evidence about the people to whom she had spoken which formed the basis of her view that the letter she had drawn would enable the release of the children and the mother from Country B.
Of the witnesses I heard, I accept the evidence of the mother and Ms Ebejer and for the reasons that I have set out in relation to the four points of the father, I reject his evidence.
It is important to observe that the authorities indicate that the father must be proved to have known not only the contents of the order but also their meanings (LGM v CAM (2006) FLC 93-267). I am satisfied on the evidence that the father was not only present when the orders were made and acknowledged their existence but that he understood very clearly the philosophy behind them which was to ensure that whatever was necessary, was to be done to enable the return of the children to Australia. It is important to observe that knowledge of an order must be looked at from an objective point of view in the context of a person of reasonable intelligence at least on the question of knowledge and understanding. The father is not just articulate, he has professional qualifications of the highest academic standard. I find he knew clearly what was required of him and he is deliberately thwarting all activities of the court and the mother to ensure that these children are brought home as was originally order by the Federal Circuit Court.
Insofar as the mother is required to establish a flagrant challenge to the authority of the court, the Act does not define those words. In my view, it must mean what is simply defined in the dictionary as “glaring, notorious or scandalous” (See Macquarie Concise Dictionary). I find the father knows well that there is no argument here of any substance because even if there was, it ought first be tested to see whether the nature of the document required of the father would assist in the implementation of the court’s order. His prevarication does him no credit and I again point to the four points he raised which I have rejected. I find he has adopted a view that only he will decide what occurs because he alone will decide what is good for his children. That flies in the face of a just outcome which ought enable both parties to have their determination made under a system in which both parties should be able to participate. Whilst he would argue that Country B is the appropriate place for that determination to be made, this Court and the Federal Circuit Court have already found to the contrary. It is timely to remember that these children are Australian citizens.
The father orchestrated their removal from Australia and on my reading of Judge Burchardt’s reasoning, ought not have done so. The father was insistent that he was a good citizen but that statement flies in the face of not only his unilateral determination not to comply with a court order but his absolute insistence that only he is right. His position is perplexing from two perspectives. First, he refuses to comply with an order of the court which has not been the subject of any appeal. Secondly, his continued absence from his children in circumstances where he was seen as a significant figure in their life is troubling. It is now bordering on two years since he had any time with them. It is also troubling because the time the children last had a close and loving relationship with him, they were very young. I do not know the nature of their current relationship with him but his continued resistance, for whatever motive, means that they are being denied their rights not just as citizens of Australia but also their rights under the intention of the Parliament of Australia as articulated in s 60B of the Act.
I find on the test of beyond reasonable doubt that the father is flagrantly challenging the authority of this court and that he has no defence for such an allegation.
Because I was uncomfortable about what order should then be made I adjourned the proceedings for two weeks to enable the father to obtain advice and/or representation. He wanted five weeks but again, gave no reasonable explanation as to why that was necessary. This matter has had substantial judicial input and extraordinary resources allocated to it. Having regard to the finding above, the outcome ought not be delayed any longer. I have informed the father that he is facing the perilous situation contemplated by Judge Burchardt. I have an open mind on the outcome of such a sentencing process but I am conscious of the fact that the whole purpose of contempt powers, and probably more so in this court than in other jurisdictions, is to ensure that the court’s orders are implemented. The father therefore still has time to cooperate in respect of the implementation of the orders of the court. For that reason, I will hear submissions either from him or from his legal representatives on the next occasion on what is the appropriate course of action.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 February 2018.
Associate:
Date: 6 February 2018
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