Newett & Newett
[2021] FedCFamC1F 11
•3 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Newett & Newett [2021] FedCFamC1F 11
File number(s): BRC 2179 of 2018 Judgment of: HOWARD J Date of judgment: 3 September 2021 Catchwords: FAMILY LAW – CONTEMPT – Application for Contempt – where the applicant failed to distinctly state the specific charges against the respondent – where the application must be dismissed on that ground alone – a consideration of section 121 of the Family Law Act 1975. Legislation: Family Law Act 1975 (Cth) ss , 35, 112AP, 121
Family Law Rules 2004 (Cth) r, 21.08
Judiciary Act 1903 (Cth) s, 24
Cases cited: Best & Best (2015) FamCAFC 1164
Best & Best [2016] FamCAFC 190
Colina, Re; Ex parte Torney (1999) 200 CLR 386
Chang Hang Kiu v Piggott (1909) AC 312
Collins & Ricardo [2014] FamCA 786
Coward v Stapleton (1953) 90 CLR 573
Eagle & Scarlet (No.2) [2020] FamCAFC 291
Hearn v Street (2008) 235 CLR 125
In the Marriage of Gibb [1978] FLC 90 – 405LGM & CAM (contempt) (No.2) (2008) FamCAFC 1
Oates v Q & Anor [2010] FamCAFC 202
R v Foster; Ex parte Isaacs (1941) VLR 77
Re Pollard (1868) LR 2 PC 106
Schwarzkopff; Fitzgibbon v Barker (1992) 16 Fam LR 539Tate v Tate (2002) 29 Fam LR 195
Thornton & WorkCover Corporation South Australia [2009] FamCA 449
Witham v Holloway [1995] HCA 3Division: Division 1 First Instance Number of paragraphs: 96 Date of last submission/s: 24 August 2021 Date of hearing: 12 August 2021 Place: Brisbane The Applicant: Litigant in Person Counsel for the Respondent: Mr McGregor Solicitor for the Respondent: AZ Lawyers ORDERS
BRC 2179 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NEWETT
Applicant
AND: MR ARMSTRONG
Respondent
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
3 SEPTEMBER 2021
1.That the applicant’s Application for Contempt filed 9 February 2021 is dismissed.
2.That the respondent’s Application for Costs is adjourned to a date to be fixed.
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 a pseudonym Newett & Newett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Background
The applicant in this case is Ms Newett. Ms Newett is a party in proceedings in the Family Court of Australia file number BRC2179/2018.
The respondent in the current application before the Court is Mr Armstrong. Mr Armstrong is a lawyer admitted to practice in Queensland. Mr Armstrong is a solicitor working at the firm AZ Lawyers. AZ Lawyers are the lawyers on the record for Ms Newett’s former husband in the same mentioned Family Court proceedings.
The applicant (Ms Newett) filed an Application for Contempt of Court naming Mr Armstrong as the respondent. The Application for Contempt was filed on 9 February 2021.
The matter came on before me on 8 June 2021 for a Case Management Hearing. On that day the following orders were made:
1. That the Contempt Application filed 9 February 2021 be listed for Hearing before the Honourable Justice Howard commencing at 10:00am on 12 August 2021 in the Family Court of Australia at Brisbane.
2. That personal appearances in Court by the parties and their legal representatives (if any) are required on 12 August 2021.
3. That in the event that the Applicant intends filing an amended Contempt Application, she must do so by no later than 4:00pm on 22 June 2021.
At no stage did the applicant file an Amended Contempt Application.
The order of 8 June 2021 contemplated personal appearances at the final hearing scheduled for 12 August 2021. The pandemic intervened. The mother lives in New South Wales and it would have been practically impossible for her to be present in Queensland for the hearing. The Queensland border is currently closed to residents of New South Wales. In any event, even if there was no prohibition on travel between New South Wales and Queensland – the mother, for reasons that are not presently relevant, did not want to travel to Queensland for the hearing in any event.
At a Case Management Hearing that occurred by telephone on Wednesday, 4 August 2021 I directed that both parties appear at the hearing of the Contempt Application by electronic means – namely utilising Microsoft Teams.
On 12 August 2021 the mother appeared, self-represented, by Microsoft Teams from a place in New South Wales. The respondent also appeared by Microsoft Teams and Mr McGregor of Counsel appeared on behalf the respondent.
The applicant read and relied upon the following material:-
(a)The Application for Contempt filed 9 February 2021;
(b)Affidavit of Ms Newett filed 9 February 2021;
(c)Affidavit of Ms Newett filed 3 December 2020;
(d)Affidavit of Ms Adlam filed 3 December 2020;
(e)Written submission of Mr Armstrong's in the Family Court proceedings (BRC2179/2018) filed 18 June 2020; and
(f)Affidavit of Ms Newett filed 11 August 2021 (comprising two parts).
Notwithstanding that the last mentioned affidavit was filed on the afternoon before the hearing – the respondent did not object to the actual reading of the affidavit. As will be seen shortly – the respondent contends that many parts of the applicant’s affidavits filed 9 February 2021 and 11 August 2021 contain irrelevant material and are therefore inadmissible.
The jurisdiction of the Family Court of Australia to hear an Application for Contempt can be found in section 35 and in section 112AP of the Family Law Act 1975 (Cth) (“the Act”).
Section 35 of the Act states:-
Contempt of court
Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
The power of the High Court to punish the contempts of the High Court is found in section 24 of the Judiciary Act 1903 (Cth). That section states:-
Contempt
The High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England.
Section 112AP (1) of the Act states:-
Contempt
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5) Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6) The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7) Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
(8) To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.
(9) In this section:
"order under this Act" means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
Sections 35 and 112AP of the Act were referred to by Gleeson CJ and Gummow J in Colina, Re; Ex parte Torney (1999) 200 CLR 386. At page 394 Gleeson CJ and Gummow J (with whom Hayne J agreed) stated, inter-alia:-
15. That helps to explain the terms of the relevant provisions of the Family Law Act 1975 (Cth) (the Family Law Act) and the Family Law Rules in force under that statute (the rules). Section 21 of the Family Law Act creates the Family Court as a superior court of record, s 35 states that it has ‘‘the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court’’, and the relevant effect of s 112AP is to authorise provisions as to practice and procedure by the rules and to specify the forms of punishment. Section 24 of the Judiciary Act 1903 (Cth) (the Judiciary Act) states that the court shall have the same power to punish contempts of its power and authority as was possessed at the commencement of that statute by the Supreme Court of Judicature in England.
This Court has jurisdiction to hear the applicant's contempt proceedings brought against the respondent by reason of both section 35 and, in my view, section 112AP(1)(a) of the Act.
The procedure to be adopted at the hearing of a Contempt Application in this Court is set out in Rule 21.08 of the Family Law Rules 2004 (Cth). Rule 21.08 states:-
Procedure at hearing
At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:
(a) inform the respondent of the allegation;
(b) ask the respondent whether the respondent wishes to admit or deny the allegation;
(c) hear any evidence supporting the allegation;
(d) ask the respondent to state the response to the allegation;
(e) hear any evidence for the respondent; and
(f) determine the case.
At the hearing on 12 August 2021 the Court followed the procedure set out in Rule 21.08.
During the course of the proceedings on 12 August 2021 the applicant requested that she be permitted to respond to each submission made by Mr McGregor (on behalf the respondent). In other words – the applicant wanted to interrupt Mr McGregor's submissions – after he had made each point – and the applicant wanted to be heard. The Court had already explained the precise terms of Rule 21.08 to the parties and the Court reiterated (at this point) that the Rules of Court needed to be strictly applied. There was no strong reason – indeed, there was no reason at all – to do otherwise. The authorities on this point are clear. In this regard I note Tate v Tate (2002) 29 Fam LR 195 per Kay J at page 217 (paragraph 104); LGM & CAM (contempt) (No.2) (2008) FamCAFC 1 per Finn J at paragraphs 1, 2 and 3; Best & Best [2016] FamCAFC 190 at paragraph 49 and thereabouts.
On 12 August 2021 the Court, in accordance with Rule 21.08(a) informed the respondent of the allegations made against him by the applicant. The Court did this by reading to the respondent the charges as stated in the Application for Contempt filed 9 February 2021.
The Court then asked the respondent whether the respondent wished to admit or deny the allegations (rule 21.08(b)). The respondent, by his counsel, Mr McGregor, stated that he denied the allegations.
The Court then heard the applicant’s evidence supporting the allegation. In that regard, the applicant relied upon the evidence which she read and which has been referred to above in paragraph 9 of the Reasons for Judgment. (Rule 21.08(c)).
The Court then asked the respondent to state his response to the allegations (Rule 21.08(d)). At this stage Mr McGregor made submissions on behalf of the respondent – specifically stating in both his oral submissions and his accompanying written submissions why the Court should dismiss the Application for Contempt brought against his client.
The standard of proof to be applied in contempt proceedings is proof beyond reasonable doubt. That this is so, was confirmed by the Full Court in Tate & Tate (2002) 29 Fam LR 195 (especially at paragraph 76); Witham v Holloway [1995] HCA 3; Best & Best (2015) FamCAFC 1164 per Le Poer Trench J (at paragraph 40). The appeal against Le Poer Trench J’s decision was dismissed.
The details of the alleged contempt are stated by the applicant in the Application for Contempt filed 9 February 2021. The form[1] itself contains within Part C the following:–
[1] In order to assist the reader of these Reasons for Judgment I have designated numbers to the various boxes contained in the form which comprises the Application for Contempt filed 9 February 2021. The numbered boxes commence on page 6 of these Reasons for Judgment.
State precisely what the respondent did or did not do which you allege amounts to a contempt of court, including the date, time and place, if applicable. See the example below.”
Do not set out the evidence upon which you rely to prove the alleged contempt. This must be set out in an affidavit filed with this form (see Rule 21.02(2)).
Date
26/11/2020Time
9:AM – 3 PMPlace
Suburb NN01/02/2021 9AM – 3 PM Suburb NN (1) On both dates listed above, the Respondent, Mr Armstrong, without leave of the Court, used the details of Family Court case BRC2l79/2018 of which he is the Applicant Father's solicitor, to attempt to exonerate himself of authentic criminal charges in an alternate jurisdiction, and falsely claim Abuse of Process against the Applicant. (2) Mr Armstrong and Mr Newett made full admission of their multiple acts of criminal activity against the Applicant under Oath in affidavit to the Family Court, therefore cannot claim "Abuse of Process". The use of private Family Court details was an Abuse of Process by Mr Armstrong. Mr Armstrong sought to use his role as an officer of the Family Court to allege he was not responsible for the Crimes he intentionally and vexatiously committed. (3) Mr Armstrong also threatened to use the judgment he sought against the Applicant in the Criminal Proceedings to negatively affect her Family Law Case BRC2179/2018 to further his own client's agenda in keeping the Children from the Applicant in contravention of Human Rights Act 2019 and in an act of Torture towards the Applicant and her children; and also for the purposes of obtaining control of all the Applicant's assets. (4) Mr Armstrong also threatened to use the judgment he sought against the Applicant in the Criminal Proceedings to prevent her admission to the Law Society of Queensland upon graduation. (5) Mr Armstrong made false claims of misconduct pertaining to the Applicant, where the Applicant seeks that the Respondent act in full duty towards the professional and ethical requirements of his role, which includes not committing criminal acts in the course of his representation, and not committing family violence on behalf of his clients. It is Mr Armstrong's conduct that is entirely unbefitting of a Legal Representative. (6) Mr Armstrong has also committed serious acts of criminal defamation against the Applicant for the past three years in many jurisdictions and defamed her to various QLD State authorities using Family Court documents.
In Coward v Stapleton (1953) 90 CLR 573 the High Court of Australia (per Williams ACJ, Kitto and Taylor JJ) stated at pages 579 and 580 stated:-
…it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: Re Pollard (1868) LR 2 PC 106, at p 120; R v Foster; Ex parte Isaacs (1941) VLR 77, at p 81. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott (1909) AC 312, at p 315. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.
Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon….
The reference above by the High Court to the decision in Chang Hang Kiu v Piggott (1909) AC 312 refers to the fact that the "…gist of the accusation must be made clear to the person charged" – needs to be noted. In that particular case, the Judicial Committee of the Privy Council was hearing an appeal from the Supreme Court of Hong Kong, and pursuant to a specific "Ordinance" of the Hong Kong Supreme Court (Ordinance 3 of 1873) – it was sufficient in that jurisdiction at that time for the "gist of the accusation" to be made clear to the person charged. No such latitude exists in the case currently before the Court. Accordingly, the applicant was required in the present case to distinctly state the specific charge or charges against the respondent. That this is so has been confirmed by a number of previous decisions of this Court including Best & Best (contempt) [2016] FamCAFC 190 (especially at paragraphs 38 and 40). Also note the decision in Best & Best (2015) FamCAFC 1164 at first instance.
I agree with the submission made by Mr McGregor of counsel on behalf of the respondent that the Application for Contempt is unintelligible. (Note paragraph 13(b) of the written submissions on behalf the respondent handed to the Court on 12 August 2021).
As to the details contained in the first box under the heading "Statement of the Alleged Contempt.”
(a)The applicant has not been sufficiently clear as to precisely when the respondent used the details of the Family Court case. What has been provided are two possible dates (26 November 2020 and 1 February 2021). The times are broad. The times stated are 9:00am to 3:00pm on both of those dates and the place is reasonably large – namely Suburb NN;
(b)The applicant has not provided particulars as to what "details" of the relevant Family Court case the respondent used;
(c)There are no particulars of how the respondent is said to have "used the details”;
(d)There are no particulars as to how the respondent attempted "to exonerate himself of authentic criminal charges”;
(e)There are no particulars as to how the respondent falsely claimed "abuse of process against the applicant”.
As to the details contained in the second box under the heading, "statement of alleged contempt."
(a)There are no particulars as to what alleged admission was made by the respondent and there are no particulars as to the alleged multiple acts of criminal activity against the applicant.
(b)There are no particulars as to the alleged abuse of process by the respondent and nor other particulars of the "Family Court details" referred to in this part of the application.
(c)There are no details as to the crimes that the respondent allegedly "intentionally and vexatiously committed".
As to the details contained in the third box under the heading "statement of the alleged contempt."
(a)There are no particulars as to when, where, or how the respondent had allegedly made the threats referred to in this part of the application; there are no particulars as to "the judgment".
(b)The applicant provided no particulars as to how the respondent intended to assist his client “in keeping the children from the applicant";
(c)There are no particulars provided as to the contravention of the Human Rights Act 2019 (Qld);
(d)There are no particulars of the so-called "act of torture"; and
(e)There are no particulars as to how (precisely) the respondent was going to obtain (or assist his client in obtaining) "control of all the applicant's assets".
As to the details contained in the fourth box under the heading "statement of the alleged contempt."
(a)There are no particulars as to how it is that the respondent allegedly threatened to use "the judgment" referred to – to prevent the applicant's admission to the Law Society of Queensland upon her graduation.
As to the details contained in the fifth box under the heading "statement of the alleged contempt."
(a)There are particulars as to the "false claims of misconduct" allegedly made by the respondent in relation to the applicant;
(b)There are no particulars as to the "criminal acts" that it is alleged the respondent committed;
(c)There are no particulars as to the "family violence" which the respondent allegedly committed;
(d)There are no particulars as to the conduct of the respondent, which the applicant maintains is "entirely unbefitting of a legal representative".
“As to the details contained in the sixth box under the heading "statement of the alleged contempt."
(a)The applicant has provided no particulars as to the "serious acts of criminal defamation against the applicant";
(b)There are no particulars as to when, where, or how it is that the respondent criminally defamed the applicant. No dates are provided and nor are the "many jurisdictions" particularised.
(c)Furthermore, there are no particulars as to the manner in which or the way in which it is alleged that the respondent defamed the applicant to "various Queensland State authorities using Family Court documents". There are also no particulars as to which Queensland State authorities or when it is alleged that this occurred and nor are there particulars as to which Family Court documents were involved.
For the reasons stated above, I do not consider that the applicant in the present case has distinctly stated specific charges against the respondent as required (Best & Best [2016] FamCAFC 190; Best & Best (2015) FamCAFC 1164 and Coward v Stapleton (1953) 90 CLR 573). Further, the allegations and the charges contained in the Application for Contempt have not been "made sufficiently explicit" (again note Coward v Stapleton).
The applicant before the Court suggested (at one point during the hearing on 12 August 2021) that details and particulars of the charges were contained in her affidavit material. This is not permissible. I note what was stated by the Full Court in Best & Best [2016] FamCAFC 190 at paragraph 38:
38. Even recourse to the affidavit in support of the application would not have assisted the father, because the necessary detail must be in the application itself.
To put it another way, the accompanying affidavit material cannot be used to "prop up" the allegations in the application which, I find, have not been sufficiently particularised.
The Application for Contempt must fail on this ground alone. There are, however, further reasons as to why this Application for Contempt should fail.
The two affidavits relied upon by the applicant – both filed 3 December 2020.
Looking at the evidence – chronologically – as filed and read by the applicant – the first affidavit is an affidavit of the applicant herself, Ms Newett, filed 3 December 2020. In this affidavit Ms Newett provides evidence of events that occurred on 1 December 2020. That is not a date relevant to this Contempt Application. In the affidavit there is only a brief reference to the respondent in these contempt proceedings (Mr Armstrong). Those references appear in paragraphs 22 and 23 where the applicant stated:-
22. On approach to the coffee shop near the entrance, I realised Mr Armstrong was getting into a white taxi in front of me, and I was forced to walk past him.
23. I entered the lobby but then my Aunty Ms QQ called out, so I went back towards her, but asked her to quickly come into the building on account of my fear of Mr Armstrong.
Nothing contained in those paragraphs could in any way be construed as evidence of contempt of Court by Mr Armstrong. He was getting into a taxi in a public street.
The applicant also read an affidavit of her mother (Ms Adlam). That affidavit was filed 3 December 2020. That affidavit also relates to events which occurred on 1 December 2020. The respondent to this contempt proceedings (Mr Armstrong) is not mentioned in the affidavit of Ms Adlam. The affidavit of Ms Adlam is completely irrelevant so far as these contempt proceedings are concerned.
Applicant’s affidavit filed 9 February 2021.
The next affidavit read by the applicant is the affidavit filed 9 February 2021, which accompanied the Contempt Application itself. Counsel for the respondent submitted that the applicant's affidavit filed 9 February 2021, "is riddled with inadmissible material". (Note paragraph 21 of the written submissions on behalf of the respondent). I agree with the submission made on behalf the respondent. I have considered the affidavit in its entirety but will refer to only some parts of the affidavit filed 9 February 2021.
The events described by the applicant in paragraphs 6 and 7 of the relevant affidavit appear to relate to submissions made by the respondent (or perhaps on his behalf by his then counsel) in the Magistrates Court of Queensland, held at Suburb NN on 26 November 2020. Paragraphs 6 and 7 state:-
6. Mr Armstrong, in an attempt to exonerate himself from the Criminal Matters, used his status as solicitor and officer of the Family Court, to make an impromptu application claiming an "Abuse of Process" in an attempt strike out his proceedings, in spite of his serious criminal acts.
a. An abuse of process requires that action is being taken for collateral purpose, or is frivolous, or is vexatious, or is so utterly groundless that the prosecution would fail.
7. The Magistrate was informed that the case was a prima facie case, where evidence as available that included admissions to some of those crimes under Oath in Affidavit before the Family Court.
a. Despite this, instead of ordering a Brief of Evidence be supplied, she gave legal advice to Counsel representing Mr Armstrong during proceedings; and encouraged him to seek security for costs in order to assist Mr Armstrong to pervert and subvert the course of justice and avoid prosecution - in very clear acts of apprehended and actual bias.
b. That matter is now under Appeal, with Appeal lodged via email on 30 January 2021, formally filed (via Australia Post) on 4 February 2021.
The events described in those two paragraphs could not, on any view, be said to constitute a contempt of the Family Court of Australia.
As to paragraph 8 of the applicant's affidavit filed 9 February 2021 – this relates to events which occurred on 1 December 2020 in or near Tank Street, Brisbane. It appears to be the same event referred to by the applicant in her affidavit filed 3 December 2020. In the affidavit filed 3 December 2020, the applicant had stated that Mr Armstrong was "getting into a white taxi". In paragraph 8 of the affidavit filed 9 February 2021 the applicant alleges that “Mr Armstrong was involved in a planned assault against me, committed primarily by Mr Newett.…” This allegation of the "planned assault" was not mentioned by the applicant in her earlier affidavit. There is nothing contained in paragraph 8 of the affidavit of 9 February 2021 which could be construed as evidence of the respondent committing a contempt of the Family Court of Australia.
There is nothing contained in paragraph 9 of the affidavit of 9 February 2021, which is relevant to these contempt proceedings.
There is nothing contained in paragraph 10 of the applicant's affidavit filed 9 February 2021 that could be evidence of a contempt. None of the dates mentioned in paragraph 10 have anything to do with the current charge as pleaded in the Contempt Application filed 9 February 2021.
As to paragraph 11 of the affidavit filed 9 February 2021 – once again, the date (7 December 2020) has nothing to do with the current contempt proceedings brought by the applicant. Furthermore, nothing contained in that affidavit could be construed as evidence of contempt of this Court by Mr Armstrong. The deponent (the current applicant, Ms Newett) states in paragraph 11 of the relevant affidavit that an application for a recovery order (apparently filed by Mr Armstrong, I infer, on instructions from his client) was, according to Ms Newett "groundless". I note, for the record, that the Honourable Justice Baumann made the recovery order sought by the father in those parenting proceedings. The information contained in that paragraph has nothing to do with this Contempt Application.
In relation to paragraph 12 of the affidavit filed 9 February 2021 – the date referred to is 8 December 2020. There is nothing contained therein which could be construed as evidence of the respondent acting in contempt of the Family Court of Australia.
Paragraph 13 of the affidavit is irrelevant to the current contempt proceedings. In that paragraph there is merely a confirmation by the applicant that the children (the subject of the parenting proceedings) were recovered from her care by the police on 15 December 2020.
I note paragraph 14 of the affidavit filed 9 February 2021. The events alleged there occurred on 1 December 2020 – or at least that appears to be the case on a plain reading of the affidavit. That is not a date which is relevant for the current contempt proceedings.
As to paragraph 15 of the affidavit filed 9 February 2021 – the applicant makes reference to 26 January 2021. That is not a date which is relevant in respect of the current contempt proceedings.
In relation to the contents of paragraph 16 of the affidavit filed 9 February 2021 – the information contained therein relates to events on 28 January 2021. That is not a date which is relevant in respect of these contempt proceedings. Interestingly, the applicant deposes to the following in paragraph 16(c) of the said affidavit as follows:-
16. On 28 January 2021, an urgent hearing was held.
…
(c). Mr Armstrong acted in contempt of the Family Court, providing unauthorised disclosure and/or materials to the Magistrate in order to reduce credibility and to argue abuse of process of the Magistrates Court by me. (Charge 2)
This appears to be a complaint that the respondent in these contempt proceedings (Mr Armstrong) breached section 121 of the Family Law Act by providing documents containing information about Family Court proceedings to a third party. I will return to this allegation later in these reasons. For present purposes, the date in paragraph 16 (28 January 2021) makes the entire paragraph irrelevant so far as these contempt proceedings are concerned.
Paragraph 17 of the affidavit filed 9 February 2021 contains information which is irrelevant to the current contempt proceedings.
In paragraph 18 of the affidavit filed 9 February 2021 the applicant sets out evidence of submissions that she made herself to the Magistrate at Suburb NN on 1 February 2021. There is no evidence contained in that paragraph which could be construed as evidence of conduct by Mr Armstrong constituting contempt of the Family Court of Australia.
As to paragraphs 19 and 20 of the affidavit filed 9 February 2021 – again, there is nothing contained in either of those two paragraphs of any evidence of conduct by Mr Armstrong that could be said to amount to a contempt of this Court.
Reference by the applicant to the written submissions of Mr Armstrong filed 18 June 2021.
I note that the applicant read in these contempt proceedings the document which she described as "written submissions of Mr Armstrong in the Family Court of Australia filed 18 June 2021". I have had regard to the written submissions. Date of the filing of the submissions (as noted) was 18 June 2021. The alleged contempt occurred on 26 November 2020 and 1 February 2021 – as outlined in the Application for Contempt filed 9 February 2021. Nothing contained in the written submissions prepared by the respondent (Mr Armstrong) and filed on 18 June 2021 is relevant to the contempt which is alleged to have occurred on the two dates stated in the application.
Applicant’s affidavit filed 11 August 2021.
The applicant filed an affidavit on 11 August 2021. The affidavit is in two parts. The first part comprises 99 pages (including annexures). The second part comprises 54 pages (including annexures). There was no objection taken to the late filing. Many submissions were made as to the relevance of the affidavit.
I note paragraph 3 of the affidavit filed 11 August 2021. That paragraph states:-
3. For this Application, I read and rely upon the Evidence pertaining to the “Perversion of Course of Justice” by Mr Armstrong and Mr Newett on 1 December 2020, as deposed before this Honourable Court on 3 December 2020 in affidavits of Ms Newett and Ms Adlam.
Again, this relates to the events of 1 December 2020. This is not relevant to the current contempt proceedings before this Court.
I note paragraph four of the affidavit filed 11 August 2021. That paragraph states:-
4. I read and rely upon the Written Submission produced by Mr Armstrong, filed on 18 June 2021, Page 3 at [29] where the author states: "29. The Mother, at paragraphs 69 to 120 of her Affidavit, sets out voluminous excerpts she has taken from Mr AY's Facebook page, none of which are related directly or indirectly to these proceedings, the parties to these proceedings or any aspect of these proceedings. The conduct of the Mother is personally intrusive and should be clearly and definitively condemned by this Court in the strongest terms.
a) Noting: The Domestic Violence Order (Annexure A) prohibited Mr Newett from engaging any person, including his agents and associates, to stalk and monitor my social media, whereabouts, and personal life. Mr Armstrong was aware of all terms of the in-force Domestic Violence Order and willingly and deliberately broke the Orders of the Suburb NN Magistrates Specialist Domestic Violence Court.
b) Noting: Mr Armstrong advocates himself that this behaviour be "clearly and definitively condemned by this Court in the strongest terms" and as such I seek the strongest possible penalty for Mr Armstrong for knowingly and willingly breaking the law, and:
i. for causing significant stress and trauma against a heavily abused victim of Family Violence, and
ii. for causing the abduction of the children, and
iii. causing serious child abuse against the Children, and
iv. subornation of two fake lay-witnesses, and
v. subornation of medical professionals to write false Psychiatric Reports, and
vi. subornation of Police to fabricate QPRIME records and torture me for Family Court purposes and to elicit public reactions from me; and
vii. a myriad of other serious crimes to defeat the administration of justice in this case.
In relation to that paragraph it, again, relates to the written submissions filed on 18 June (prepared by the respondent). 18 June 2021 is not a date that is relevant in respect of the Application for Contempt before the Court.
In paragraph 5 of the affidavit the applicant refers to "annexure A". Annexure A includes transcripts of proceedings in the Magistrates Court of Queensland, dated 26 November 2020 and 28 January 2021. Nothing that occurred on 28 January 2021 could be relevant to the current contempt proceedings before the Court. Further, in relation to the proceedings that took place in the Magistrates Court of Queensland sitting at Suburb NN on 26 November 2021 – the conduct of Mr Armstrong in or during a hearing in that Court does not (in the present circumstances) amount to a contempt of the Family Court of Australia.
The applicant maintains at the commencement of paragraph 6 in the affidavit filed 11 August 2021 – "the materials demonstrate Mr Armstrong’s Contempt of Court…" There are no particulars provided as to precisely which materials demonstrate contempt of Court nor are there any particulars provided by the applicant as to precisely what conduct by Mr Armstrong amounts to a contempt of the Family Court of Australia.
It is apparent from page 30 of the affidavit filed 11 August 2021 that the applicant in these contempt proceedings had brought, or purported to bring, 48 criminal charges in a private prosecution against the respondent, Mr Armstrong. On that page of the annexures to the affidavit the learned Magistrate (Magistrate Kahlert) was delivering judgment. During the course of the hearing of this matter on 12 August 2021 I did not understand the applicant to contest the fact that she had (apparently) brought 48 charges against the respondent in a criminal prosecution in the Magistrates Court in Queensland. The learned Magistrate (on 26 November 2020) ordered that the applicant in these contempt proceedings (Ms Newett) pay the amount of $27,000 by way of security for costs to the Registrar of the Magistrates Court at Suburb NN. Those security for costs related to the applicant's private prosecution against Mr Armstrong.
I have had regard to all the annexures to the affidavit of the applicant filed 11 August 2021 (both part one and part two). There is nothing contained in those annexures to support the applicant's assertion that the respondent is guilty of contempt of the Family Court of Australia on the two specified dates – namely 26 November 2020 or 1 February 2021.
One further matter
The application for contempt must be dismissed. I have, earlier in these Reasons the Judgment, made reference to the fact that that the Application for Contempt must fail due to the fact that the applicant has failed “to distinctly state the specific charges” in the application filed on 9 February 2021. (It will be noted that I have used similar words to the words used by the High Court in Coward v Stapleton (supra)). Furthermore, once again using the wording of the High Court – the applicant failed to make the charges "sufficiently explicit” (Coward v Stapleton (supra)).
There is, however, one further matter to which I will refer for completeness. This further matter may become relevant in the event my conclusion (just stated) is not correct. Doing the best that I can with the words used by the applicant in the Application for Contempt it seems that her complaint is or may be (because it is unclear) that on one of the stated dates (or perhaps both the stated dates) the respondent provided to the Magistrates Court of Queensland sitting at Suburb NN information relating to proceedings in the Family Court of Australia in the file number BRC2179/2018. It will be apparent from these Reasons for Judgment that it is not at all clear to me (having regard to the words used in the Application for Contempt) precisely what is alleged by the applicant against the respondent. But, in very broad terms, it does appear to be the case that the applicant complains that the respondent used details of the said family law case in the criminal proceedings which (the applicant) had brought by way of private prosecution against the respondent in the Magistrates Court of Queensland. A closer consideration of section 121 of the Act is required.
Section 121 of the Family Law Act 1975
Section 121 of the Family Law Act is headed, "Restriction on publication of court proceedings".
Section 121 of the Family Law Act 1975 states:-
Restriction on publication of court proceedings
(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings; commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(2) A person who, except as permitted by the applicable Rules of Court, publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means (otherwise than by the display of a notice in the premises of the court), a list of proceedings under this Act, identified by reference to the names of the parties to the proceedings, that are to be dealt with by a court commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
(3) Without limiting the generality of subsection (1), an account of proceedings, or of any part of proceedings, referred to in that subsection shall be taken to identify a person if:
(a) it contains any particulars of:
(i) the name, title, pseudonym or alias of the person;
(ii) the address of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated;
being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b) in the case of a written or televised account or an account by other electronic means--it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account or an account by other electronic means--it is spoken in whole or in part by the person and the person's voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.
(4) A reference in subsection (1) or (2) to proceedings shall be construed as including a reference to proceedings commenced before the commencement of section 72 of the Family Law Amendment Act 1983 .
(5) An offence against this section is an indictable offence.
(8) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions.
(9) The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(aa) the communication of any pleading, transcript of evidence or other document to authorities of States and Territories that have responsibilities relating to the welfare of children and are prescribed by the regulations for the purposes of this paragraph; or
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d) the publishing of a notice or report in pursuance of the direction of a court; or
(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii) to a person who is a student, in connection with the studies of that person; or
(g) publication of accounts of proceedings, where those accounts have been approved by the court.
(10) Applicable Rules of Court made for the purposes of subsection (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.
(11) In this section:
"court" includes:
(a) an officer of a court investigating or dealing with a matter in accordance with this Act, the regulations or the Rules of Court; and
(b) a tribunal established by or under a law of the Commonwealth, of a State or of a Territory.
‘electronic means’ includes:
(a) in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or
(b) in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.
The prohibition on the publishing of details of proceedings in the Family Court of Australia is clearly stated in sections 121(1) and (2). But, as can be seen in section 121(9)(a) – those provisions (of prohibition) do not apply “to or in relation to”:
121(9)(a):
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or…
The term "Court" is defined in section 121(11). The Magistrates Court of Queensland comes within the definition of "Court" as defined in section 121(11) of the Family Law Act.
In the material before this Court on the hearing of these contempt proceedings I note that there is annexed to the applicant's affidavit filed 11 August 2021 an affidavit sworn by Mr BA. That affidavit was sworn 20 November 2020. There is a stamp noting that it was filed in the Magistrates Court's Office on 20 November 2020 at Suburb NN. There being no other affidavit put before this Court – I can only assume that it is, in fact, the affidavit of Mr BA which was relied upon (or appears to have been relied upon) by Mr Armstrong in the proceedings of the Magistrates Court – about which the current applicant (Ms Newett) complains. Paragraph 5(a) of the applicant’s affidavit filed 9 February 2021 (noted above) states that:
5(a). Mr Armstrong supplied an affidavit describing the details of proceedings and identifying parties of the BRC2179/2018 Newett v Newett case to the Magistrates Court, including description of the Children's matters - and referred to untested matters. (Charge 1)
I had, originally, thought that the applicant's complaint related to an affidavit sworn by Mr Armstrong. But I do note that the applicant used the words, "supplied an affidavit". I assume that the offending affidavit (so far as Ms Newett is concerned) is the affidavit sworn by Mr BA. It is apparent that the affidavit of Mr BA was filed in the Magistrates Court at Suburb NN. It is also apparent that the affidavit of Mr BA was utilised (by or on behalf of Mr Armstrong, the current respondent) in the proceedings at the Magistrates Court at Suburb NN – namely, the private criminal prosecution brought against him by the current applicant, Ms Newett. Section 121(9)(a) provides a complete answer to the applicant's complaint against the respondent in this regard. I agree with the submissions made by Mr McGregor of counsel in this regard.
The applicant (during the course of the hearing on 12 August 2021) appeared to argue that Mr Armstrong ought not be entitled to the benefit of section 121(9)(a) because on the day in question (I assume, although I am not certain – 26 November 2020) he was not acting in his capacity as a lawyer but was, at that time, the defendant in a private prosecution. The applicant's argument appears to be that the benefit and the protection provided by section 121(9)(a) is only available to lawyers acting in their capacity as lawyers. Not surprisingly, the applicant was not able to cite an authority to support this proposition. The proposition is wrong.
My conclusion in relation to section 121 is supported by the decision of the Full Court in Oates v Q & Anor [2010] FamCAFC 202. In that case details of proceedings in the Family Court were disclosed to a Legal Services Commission. In that instance, it was section 121(9)(b) which provided protection to the person disseminating the information. In the present case it is section 121(9)(a) which provides protection to the respondent, Mr Armstrong.
The decision of the Full Court in Schwarzkopff; Fitzgibbon v Barker
Even if the respondent (Mr Armstrong) did not have the protection of section 121(9)(a) (which he does) and even if the applicant had proven that the respondent had breached section 121(1) of the Act – there is a long line of authority in this Court to confirm that a breach of section 121 of the Act ought not be dealt with by the Family Court of Australia by way of contempt proceedings – or otherwise. In this regard I note the decision of the Full Court in the Marriage of Schwarzkopff; Fitzgibbon v Barker (1992) 16 Fam LR 539 – especially at pages 547 – 548. In that decision the Full Court (comprising Barblett DCJ, Nygh and Purdy JJ) stated, inter-alia, at page 547:-
For the prosecution reliance was placed on s 112AP(2) which provides that in spite of any other law, a court having jurisdiction under the Act may prosecute a person for contempt of that court.
Whatever may be the scope of that provision, it is in our view clearly undesirable as a general principle to proceed under s 112AP for an alleged contravention of s 121. In In the Marriage of Gibb (1978) 6 Fam LN 7; (1978) FLC 90-405 the Full Court consisting of Pawley, Dovey and Frederico JJ had to consider an injunction granted by the trial judge restraining the wife in the proceedings from communicating with the press in relation to the pending Family Court proceedings or in relation to the husband's mode of life or source of income. The Full Court set aside the injunction remarking at FLC 77,083:
‘Except in special circumstances this is a highly undesirable situation. It was not intended by Parliament that this court should enforce the provisions of s 121 relating to restriction of publication of evidence, as 121(4) specifically provides that proceedings for any offence against the section should not be commenced except by, or with the written consent of, the Attorney-General, and, of course, any such prosecution could not be brought in the Family Court.’
Although this is a somewhat different situation, the underlying principle is equally applicable here. Except in special circumstances it is not desirable that this court should enforce by way of contempt or otherwise the obligations arising under s 121. This case, in our view, presents no special circumstances in which to depart from that principle.”
In Schwarzkopff the Full Court had relied on the 1978 decision of the Full Court in the Marriage of Gibb [1978] FLC 90 – 405. The conclusion of the Full Court in Schwarzkopff was more recently supported by Loughnan J in Collins & Ricardo [2014] FamCA 786. It should be noted that the reference in Schwarzkopff and Gibb to section 121(4) should now be read as a reference to section 121(8) of the Act. By that subsection proceedings for an offence against section 121 of the Act "shall not be commenced except by, or with the written consent of, the Director of Public Prosecutions”.
In Schwarzkopff the Full Court stated that, "… Except in special circumstances, it is not desirable that this court should enforce by way of contempt or otherwise the obligations arising under section 121…" In the current case before the this Court – even if the applicant had been able to prove a breach of section 121 (which she has not) there are no "special circumstances" that would justify this Court departing from the general principle stated by the Full Court in Schwarzkopff. My view in this regard is supported by the decision of this Court in Collins & Ricardo and the cases referred to therein. In particular I note that the decision of the Court in Xuarez & Vitela [2012] FamCA 574 identified “special circumstances” – relating to the publication of material on the internet in breach of section 121. The facts in Xuarez bear no resemblance to the case currently before the Court.
Neither the applicant (self-represented litigant) nor the respondent (via his Counsel) made any reference to the decision in Schwarzkopff during the course of the hearing on 12 August 2021. Accordingly, I relisted the matter for a mention via telephone (a case management hearing) on 17 August 2021 and granted to the parties leave to provide a short written note by way of further submission in relation to the effect (if any) of the decision in Schwarzkopff in the current case. The parties were allowed seven days in which to provide such a submission.
At the Case Management Hearing on 17 August 2021 the Court made the following order (and notations):-
IT IS NOTED:
A. The parties attended by video link for the hearing of this application on Thursday, 12 August 2021;
B. On 16 August 2021 the Court wrote (via email) informing the parties that the matter was listed for a mention at 10:00a.m. on Tuesday, 17 August 2021;
C. That at 10:00a.m. on Tuesday 17 August 2021 the applicant (Ms Newett) did not appear. The respondent appeared via his counsel, Mr McGregor.
D. The Court issued the following directions.
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That the applicant and the respondent have leave to file a further brief written submission on the relevance (if any) of the decision: In The Marriage Of Schwarzkopff; Fitzgibbon V Barker (1992) 16 Fam LR 539 – in relation to the current application before the Court.
2. That in the event that a party decides to file and serve a brief written submission as contemplated in paragraph 1 – that party is specifically requested to address whether, in the view of that party, there are "special circumstances" that would apply in this case in the event that the Court came to the conclusion that there had been a breach of section 121 of the Family Law Act 1975 (Cth). In this regard, the parties are particularly referred to page 547 of the decision and the references therein to a further decision: In the marriage of Gibb [1978] FLC 90 – 404.
3. That in the event that the parties (or a party) chooses to file and serve a further brief written submission (as referred to herein) then such further brief written submission must be received by the Court (filed) and delivered to the other side (served) by no later than 4:00p.m. on 24 August 2021.
4. That the Court will proceed to decide the case after 4:00p.m. on 24 August 2021.
Following the making of the order the Court received correspondence from the applicant on 18 August 2021. The respondent received a copy of the same correspondence. In the correspondence, the applicant expressed her apologies to the Court for failing to be present at the hearing on 17 August 2021.
Subsequently, the applicant provided an email to the Court (and the respondent) containing some further submissions. There were in fact two emails sent to the Court on 19 August 2021 by the applicant. One at 1:26a.m. and one at 1:34a.m.
The applicant then provided further written submissions to the Court (and to the respondent) by emails forwarded on 24 August 2021.
In relation to the submissions made by the applicant (whether those submissions were made or provided by the applicant at the Hearing of 12 August 2021 or were made or provided subsequently) the Court is not required to mention or refer to every single argument relied upon by a losing party – in this case, the applicant. In this regard I note the decision of the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447. Note especially paragraph 62 (per Gleeson CJ, McHugh, Gummow JJ). At paragraph 62 the majority of the High Court stated, inter-alia:-
62…The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The Full Court of the Family Court of Australia in Eagle & Scarlet (No.2) [2020] FamCAFC 291 referred to the decision in Whisprun Pty Ltd v Dixon and at paragraph 103 the Full Court stated:-
At the outset, it is useful to state that it is not incumbent upon a trial judge to refer to every piece of evidence relied upon by the losing party, or to traverse every argument advanced by them (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
In her more recent written submissions/emails the applicant has referred to the decision of the High Court in Hearn v Street (2008) 235 CLR 125. That case concerned litigation in the Equity Division of the Supreme Court of New South Wales. In that case – certain businessmen in Sydney had provided documents which had been generated/disclosed for the purposes of litigation to government employees (members of the New South Wales public service among others). The businessmen were (it seems) trying to lobby the government to pass legislation to (as they saw it) address the problem they were encountering as a result of the litigation. The businessmen were connected with Luna Park. The applicants in the litigation were residents who lived near Luna Park. The residents pursued the businessmen in the Supreme Court of New South Wales in contempt proceedings. The High Court was required to consider the notion of an "implied undertaking" said to apply to the use of documents generated or disclosed for the purpose of litigation. At paragraph 96 the Court – per Hayne, Heydon and Crennan JJ stated:-
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discoverybookmark7, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.”
(Footnotes omitted).
The appellants in the High Court were the residents. The respondents in the High Court were the businessmen. The High Court found in favour of the residents and essentially held that the businessmen had breached the "implied undertaking".
It is an interesting point that has been raised by the applicant. It is, however, not relevant to the proceedings currently before the Family Court of Australia.[2]
[2] Now known from 1 September 2021 as the Federal Circuit and Family Court of Australia – Division One.
The applicant has the insight to understand that section 121(9) poses a significant obstacle to her case. In paragraph number 27 of the applicant's written submissions provided on 24 August 2021 she has stated that:-
7. A minor clause exempting solicitors from publication of matters in s121(9) is not sufficient to overcome this well entrenched principle embedded in the Common Law.
The applicant provided no authority to support the proposition stated in paragraph 27 of her written submissions. That is not surprising. The proposition is wrong. The Parliament has shown a clear intention to protect certain communications from the prohibition stated in section 121(1) of the Act. Those communications are described in section 121(9) of the Act.
To the extent that it might have been said (which I do not necessarily accept because I did not have the benefit of hearing full argument on the point from both sides) that there may have been an applicable common law rule concerning the “implied undertaking” which assisted the applicant's argument – in the particular circumstances of this case such common law rule (if it existed and was applicable here) is or would be overridden by section 121(9) of the Act. The conclusion which I have reached in this regard is consistent with the decision of Dawe J in Thornton & WorkCover Corporation South Australia [2009] FamCA 449.
I do not consider it necessary or appropriate to refer to any further submissions provided by the applicant – whether they be the applicant’s submissions provided before or after 17 August 2021.
Conclusion
Apart from the general complaint (not distinctly stated and not properly particularised) made by the applicant of a breach by the respondent of section 121 of the Family Law Act – I was not able to discern any cogent complaint (in the Application for Contempt filed 9 February 2021) which could, on any view, be construed as a properly particularised charge of contempt of the Family Court of Australia.
The Application for Contempt filed 9 February 2021 must be dismissed. I will list the respondent’s application for costs on a date to be fixed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 3 September 2021
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