Oakley & Millar
[2019] FamCAFC 12
•31 January 2019
FAMILY COURT OF AUSTRALIA
| OAKLEY & MILLAR | [2019] FamCAFC 12 |
| FAMILY LAW – APPEAL – CONTEMPT – Where the father’s Notices of Appeal do not contain competent grounds of appeal – Where the finding of contempt was properly made pursuant to s 112AP of the Family Law Act 1975 (Cth) – Where no question of general principle is raised and the reasons are given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Where the appeals have no merit – Appeals dismissed. FAMILY LAW – APPEAL – PENALTY – Where the father does not raise any grounds of appeal as to the penalty imposed – Where the primary judge sentenced the father to six months imprisonment, suspended for a period of two years – Where the primary judge did not err in the penalty imposed on the father. FAMILY LAW – APPLICATIONS IN AN APPEAL – FURTHER EVIDENCE – Where the evidence the father seeks to adduce is irrelevant to the proceedings – Where most of the evidence the father seeks to adduce was available to him at the time of the hearing – Applications dismissed. |
| Family Law Act 1975 (Cth) ss 93A(2), 94(2A), 112AP, 112AP(1)(b), 112AP(2), 112AP(4), 112AP(6)(b) Family Law Rules 2004 (Cth) r 21.08 |
| Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Cluny & Skinner (No.2) [2017] FamCA 547 Ganem & Ganem (No.2) [2013] FamCA 257 In the Marriage of Ibbotson and Wincen (1994) FLC 92-496; [1994] FamCA 103 Tate & Tate (No. 3) (2003) FLC 93-138; [2003] FamCA 112 Millar & Oakley [2016] FCCA 1283 Millar & Oakley [2017] FamCA 415 Millar & Oakley (No.3) [2018] FamCA 68 Oakley & Millar [2018] FamCAFC 47 |
| APPELLANT: | Mr Oakley |
| RESPONDENT: | Ms Millar |
| INDEPENDENT CHILDREN’S LAWYER: | Taft Lawyers |
| FILE NUMBER: | MLC | 2195 | of | 2016 |
| APPEAL NUMBER: | SOA 11 | & | SOA 12 | of | 2018 |
| DATE DELIVERED: | 31 January 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren CJ, Strickland & Macmillan JJ |
| HEARING DATE: | 27 August 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 January 2018 & 12 February 2018 |
| LOWER COURT MNC: | [2018] FamCA 68 & [2018] FamCA 122 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Ebejer & Associates Lawyers |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Taft Lawyers |
Orders
The Application in an Appeal filed on 13 August 2018 in appeal no. SOA 11 of 2018 be dismissed.
The Application in an Appeal filed on 13 August 2018 in appeal no. SOA 12 of 2018 be dismissed.
Appeal no. SOA 11 of 2018 be dismissed.
Appeal no. SOA 12 of 2018 be dismissed.
There be 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 Oakley & Millar 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 11 of 2018 & SOA 12 of 2018
File Number: MLC 2195 of 2016
| Mr Oakley |
Appellant
And
| Ms Millar |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
INTRODUCTION
These are appeals by Mr Oakley (“the father”) against orders together with a finding that the father was guilty of contempt of court made by the primary judge on 30 January 2018, and orders made on 12 February 2018.
Neither Ms Millar (“the mother”) or the Independent Children’s Lawyer (“ICL”), took any part in the appeals.
These proceedings are protracted, and have been punctuated by a vehement international dispute between Australia and African Country B involving the father, the mother, and the father’s family in Country B. It is unnecessary to recount the extensive factual background to these proceedings which has been canvassed several times (see Millar & Oakley [2016] FCCA 1283; Millar & Oakley [2017] FamCA 415; Oakley & Millar [2018] FamCAFC 47).
On 20 November 2017 the wife filed an application alleging contempt. The application contained one allegation of contempt, namely that the father failed to provide his written consent so that the children could travel from Country B and return to Australia as required by paragraph (5) of orders made on 9 June 2017. Importantly, the father had not appealed those orders.
On 30 January 2018 the primary judge heard and determined Applications in a Case filed by the father on 15 December 2017 and 23 January 2018, an oral application by the father to adjourn the mother’s application alleging contempt filed on 20 November 2017, and that application. His Honour dismissed the applications of the father, found the father guilty of contempt of court, and adjourned that application to 12 February 2018 for sentencing.
On 12 February 2018 the primary judge made orders as follows:
1)HAVING FOUND (RESPONDENT HUSBAND) GUILTY OF CONTEMPT OF COURT ON 30 JANUARY 2018, the husband is sentenced to six months imprisonment suspended for a period of two years from this date on condition that he complies with all orders of the court and does all things necessary to give effect to paragraphs (4) and (5) of the orders made on 9 June 2017.
2)That the wife’s application for contempt is otherwise dismissed (emphasis omitted).
The Notices of Appeal were difficult to comprehend. Each Notice contained repetitive grievances instead of properly formulated grounds of appeal. Many paragraphs raised allegations that had been dismissed in previous hearings.
It was also not readily apparent from the written Summaries of Argument or the oral submissions made by the father at the hearing of the appeals on what bases the father was appealing all orders made on 30 January 2018 and 12 February 2018, respectively. However doing the best we can, it would seem clear that the father was looking to challenge the finding of contempt and the subsequent penalty, and we will confine our consideration of these appeals to those issues.
As will shortly emerge, both appeals will be dismissed. There is no question of general principle that is raised, and therefore the reasons will be in short form as per s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”).
APPLICATIONS IN THE APPEALS TO ADDUCE FURTHER EVIDENCE
On 13 August 2018 the father filed identical applications in each appeal seeking leave to adduce further evidence in the appeals. The evidence comprises of six groups of documents which are annexed to affidavits filed on 13 August 2018. At the appeal hearing, the father argued that these documents were “totally different… [and] very new ones” from previous documents, and were relevant to the “falsified documents” that the father alleged that the primary judge relied on in making the earlier orders (Transcript 27 August 2018, p 2 lines 17 – 18).
The Court’s discretion to admit further evidence on appeal pursuant to s 93A(2) of the Act is explained by the High Court in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”). The discretion is remedial in nature, and its principal purpose is to admit evidence that, if accepted, would illustrate that the orders under appeal are erroneous (at [109]). Further evidence is more likely to be admitted when it is uncontroversial, and when it relates to events that have occurred after the trial (at [114]). Importantly, the discretion under s 93A(2) must be exercised judicially, and the evidence must be relevant and admissible according to the usual rules of evidence (at [115]). The Court may be disinclined to allow a party to adduce evidence on appeal that they could have, but did not, put before the trial judge, particularly where it has been deliberately withheld (at [116]).
We were not satisfied that any of the documents met the criteria for admission of further evidence by reference to the principles set down by the High Court in CDJ, and we indicated at the hearing of the appeals that we would be dismissing the applications and providing our reasons as part of our overall reasons for judgment in the appeals. We now set out those reasons.
Annexure MO 1
The first group of documents consist of three translated letters. Two of the letters relate to a complaint from the mother’s former Country B lawyer alleging that the mother and her brother forged a document using his details. One is written by the Chief of General Prosecution of the Public Prosecution – City A Section in Country B, and the other by the mother’s former lawyer. This is not new evidence. The primary judge considered the issue of the forged document on 30 January 2018 and was not prepared to accept that there was any basis for this allegation or that the Court had been misled (Millar & Oakley (No.3) [2018] FamCA 68 at [10]).
The third document is an undated letter headed ‘A report about suits of [the mother]’ written by a lawyer in Country B. It purports to summarise the proceedings in Country B against the mother and refers to a travel ban on the mother. The father made no submission as to the relevance of this document to the orders under appeal, and we are not satisfied of the same.
Annexure MO 2
The second annexure is a translated statement from Country B Attestation Department dated 20 March 2018 about a complaint that was issued against Mr M and that he is being investigated. The father made no submission about the identity of Mr M or how this document was relevant to the issues before the primary judge, and again we are not satisfied as to the same.
Annexure MO 3
Annexure MO3 contains three translated documents. The earliest document is a police statement dated 29 September 2016 relating to the allegation of neglect made by the paternal grandparents against the mother. Apart from the fact that the father failed to explain the relevance of this document to the contempt proceedings, he did not explain why he did not put this information before the primary judge or why, if it be the case, this information was not obtained before the contempt hearing or the sentencing hearing.
The second is a statement dated 13 May 2018 from a Child Court in Country B, referring to the mother travelling out of Country B before the next hearing on 22 May 2018. This document does not assist in demonstrating an error by the primary judge.
The third document is an arrest warrant request for Mr E to appear before a Country B Court on 22 May 2018. Again, the identity and relevance of this person is unknown and we were not provided with any submissions as to the purpose of this hearing.
Annexure MO 4
Annexure MO4 is an email from a police department in City A in Country B to a police department in Australia dated 1 May 2017. The email contains a request that the mother be arrested for removing the children out of Country B. Given the date of the email, the document was available or could reasonably have been obtained at the time of the hearing, but it was not presented to the primary judge. In any event, its relevance to the contempt proceedings has not been established.
Annexure MO 5
Annexure MO5 contains two summonses for the mother and Mr O to appear before another Country B Court on 15 May 2018. The identity of Mr O and the purpose of the hearing on 15 May 2018 are unknown.
The father did not establish that these documents were relevant to the contempt proceedings before the primary judge or that they had any bearing on the correctness of the orders under appeal.
Annexure MO 6
The final document the father seeks to adduce is a statement from the City C Court dated 19 June 2017. It states that the paternal grandmother is the only plaintiff in proceeding number …10/2017 against the mother. This document was already before the primary judge in earlier interim proceedings as it was annexed to the father’s affidavit filed 20 June 2017, and is therefore not new evidence.
CONCLUSION
For the reasons articulated above, we refused the father’s Applications in the Appeals for leave to adduce this “further evidence”.
THE APPEALS
To repeat, the Notices of Appeal against the 30 January 2018 orders and the 12 February 2018 orders contained a list of general grievances and no proper or competent grounds of appeal.
Neither the father’s written Summaries of Argument, nor his oral submissions made during the hearing of the appeals, cured the incompetence of his grounds of appeal. Balancing the obligation on the appellant to identify error in the reasons for judgment with the father’s position as a litigant in person, we have done our best to examine the father’s grounds that relate to the contempt finding and penalty (Bahonko v Sterjov (2008) 166 FCR 415 at [3]).
Of the 24 grounds of appeal listed in each Notice of Appeal, only ground 1, ground 16 and ground 23 are directed at the contempt proceedings:
1.I am not in contempt of the court order, as the document in question is not necessary and the court has relied on false evidence on oath from the biological mother and her Lawyer in Australia who presented falsified documents from [Country B].
…
16.The biological mother and the children on travel ban from several proceedings including one placed by the biological mother on the children since August 2016 when she was still in Australia and his Honour Judge Burchardt Said that step further complicated the case. So this paper is not necessary and I am not in contempt.
…
23.I provided crucially important facts and new materials that the court can change it’s [sic] finding of contempt and dismiss the application of contempt.
As the father’s applications to adduce further evidence have been refused, no new material is before the Court. Therefore, ground 23 has no merit.
As to the other grounds, for the reasons set out below, we are not satisfied that the primary judge fell into error in finding the father guilty of contempt pursuant to s 112AP(1)(b) of the Act, or that the sanction imposed was outside the wide ambit of the primary judge’s discretion.
Did the primary judge err in finding the father guilty of contempt?
The allegation of contempt contained in the wife’s application filed 20 November 2017 was that the father had failed to provide his written consent to the children travelling from Country B to Australia in deliberate breach of paragraph (5) of the orders made on 9 June 2017.
The principles applicable to deciding an application alleging contempt were aptly summarised by Aldridge J in Ganem & Ganem (No.2) [2013] FamCA 257 as follows:
10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195;(2002) FLC 93-107)
11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
·The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)
·The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75, 294)
·The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend [sic] to do the act which is alleged to be the contempt. In the Marriage of English, above.
·The act must involve a flagrant challenge to the authority of the court. …
The procedure to be followed in contempt proceedings is set out in r 21.08 of the Family Law Rules 2004 (Cth). Despite being provided with limited transcript of the contempt hearing, we are satisfied that the primary judge adhered to this procedure. It is clear that the father was informed of the allegation, responded to it, and was given ample opportunity to cross-examine the mother and her solicitor during the hearing of the application.
As to the first element, the father’s understanding of the terms of the orders is clear from the following exchange that occurred during the hearing of the application:
HIS HONOUR: She relies on the ‑ ‑ ‑
MR OAKLEY: No, no. I know that.
HIS HONOUR: ‑ ‑ ‑ facts that you have not signed the document.
MR OAKLEY: Yes, I know. And your order is clear the document necessary. What I’m trying to establish, the document is not necessary at this stage.
(Emphasis added)
(Transcript 30 January 2018, p 25, lines 18 – 25)
The primary judge was clearly satisfied beyond reasonable doubt that the father was aware of the terms of the orders and understood them. At [40] of the reasons for judgment delivered on 6 February 2018 (Millar & Oakley (No 2) [2018] FamCA 48), the primary judge stated:
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.
Additionally, during the hearing of the appeal, the father admitted that he understood the orders “really well” (Transcript 27 August 2018, p 13, lines 35 – 43).
As to the second and third elements, the primary judge found that the father was deliberately and intentionally refusing to sign the document as can be seen from [18] of those reasons:
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.
As to the fourth element, it is clear that the father’s contravention of the orders was of an “exceptional or striking nature” so as to amount to a flagrant challenge to the authority of the court (see In the Marriage of Ibbotson and Wincen (1994) FLC 92-496 at 81,162). The primary judge was mindful of the detrimental impact of the father’s noncompliance on the children, their relationship with their father, and their rights as Australian citizens. The primary judge concluded at [41] and [43] of those reasons:
41.… I find [the father] 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.
…
43.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.
The father’s Summaries of Argument and his oral submissions during the hearing of the appeal focused unflaggingly on the “necessity” of the orders of 9 June 2017. As the father was constantly reminded on appeal, he did not appeal the orders of 9 June 2017 and so submissions as to their necessity did not assist his case.
The father made the same arguments as to necessity to the primary judge during the contempt hearing and the sentencing hearing. The fact that signing the document might not facilitate the return of the children and the mother was rejected by the primary judge as not being a reasonable excuse for him refusing to sign the document. The primary judge concluded at [27] of those reasons:
27.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.
The primary judge found that the particular document the father was being asked to sign would have complied with the orders of 9 June 2017 at [4] of the reasons delivered on 12 February 2018 (Millar & Oakley (No 4) [2018] FamCA 122) as follows:
4.Mr Oakley declined to sign the document presented to him and, having had a look at that document on the previous occasion, it was clear that, whilst it would not bind Country B authorities and courts, if it had been signed, it would have complied with the orders of 9 June [2017]. Mr Oakley consistently declined to sign it, saying that it was all based on lies.
This paragraph was read out and explained to the father during the hearing of the appeal. Submissions as to necessity were therefore irrelevant to the father’s challenge to the trial judge’s finding of contempt.
Having found no error in the primary judge’s reasoning or ultimate finding, both grounds 1 and 16 are rejected and the father’s arguments as to the finding of contempt must fail.
Did the primary judge err in determining the father’s penalty?
To repeat, on 12 February 2018 the primary judge sentenced the father to six months imprisonment suspended for a period of two years on the condition that he complies with all orders of the court and does all things necessary to give effect to paragraphs 4 and 5 of the 9 June 2017 orders.
No transcript of the sentencing hearing was provided by the father, and very little of the father’s written and oral arguments were directed to challenging the sentence. Thus, we can do no more than examine the primary judge’s reasons delivered on 12 February 2018.
Pursuant to s 112AP of the Act the court has power to punish a person for contempt of that court, including by committal to prison (s 112AP(2), (4)). If a term of imprisonment is imposed, the court may make an order suspending punishment (s 112AP(6)(b)).
In Cluny & Skinner (No.2) [2017] FamCA 547 Kent J outlined the general principles that guide a sanction for contempt at [10]:
a) State and federal sentencing laws have no application (Abduramonoski and Abduramanoska (2005) FLC 93-215 (“Abduramanski”)); s 112AP of the Act provides the code for dealing with sentencing under the Act (Myers and Myers (2006) FLC 93-291 (“Myers”));
b) Section 112AP affords a sentencing judge a wide discretion which is to be exercised transparently and in light of the individual facts and circumstances of the case (Abduramanski (supra) at [80]); (Australian Securities & Investments Commission v Michalik [2004] NSWSC 1259 (“ASIC v Michalik”) cited with approval in Myers (supra));
c) “…review of the punishments in other cases is of limited assistance, as each case really depends upon the Court’s assessment of the relevant facts”. (ASIC v Michalik (supra) at [49] cited with approval in Myers at [34]);
d) “This is particularly so where, as in the case of s 112AP of the Act, there is no provision for a maximum term of imprisonment. The difficulty which confronts courts exercising criminal jurisdiction in sentencing for offences for which maximum penalties are provided is thus even greater for courts exercising the sentencing powers conferred by s 112AP of the Act”. (Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384 (“Kendling”));
e) Normally, the purpose of contempt proceedings is to coerce a person in breach of an order to comply with it. Another purpose may be punishment. The purpose of imposing punishment reflects the need for individual and general deterrence and retribution for the party’s failure to comply with the order. Retribution is called for because it is essential to the proper working of the court system that court orders are obeyed (Kendling (supra)). In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107 Gibbs CJ, Mason, Wilson & Deane JA stated the purpose of proceedings for civil contempt of an injunction was as follows:
…Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced…
As stated above, the primary judge is afforded a wide discretion when exercising power under s 112AP of the Act. The father raised no challenge to the primary judge’s exercise of this discretion and we are not satisfied that the decision to sentence the father to six months imprisonment suspended for two years was outside the ambit of his Honour’s discretion.
Although the father eventually signed the document in question in compliance with the 9 June 2017 orders, it is well accepted that another purpose of contempt proceedings is punishment. Imposing punishment reflects the need for individual and general deterrence, and retribution for that party’s failure to comply with the orders of the court (Tate & Tate (No. 3) (2003) FLC 93-138 at [57] – [67]). It is clear from the primary judge’s reasons that his Honour viewed retribution as an important consideration:
14.… this is a case where retribution is called for, because it is essential for the proper working of the court system that court orders are obeyed. Mr Oakley does not seem to accept that, even though he certainly says that he respects the system. I have doubts about that.
15.His argument is that the whole basis of the orders in 2016 and 2017 was lies and forgeries. There is a real risk that he, through his servants and agents, may endeavour to thwart this process instigated by the document he has now signed. I understand that document will not guarantee the return of the children to Australia.
16.In my view, retribution is called for here, but at the same time there is still an element of coercion about the orders, because I want to ensure that every attempt now made by the wife to leave that country with her children is not thwarted by some further conduct on the part of Mr Oakley.
Given the father’s past behaviour and brazen disregard for the authority of the court, a suspended sentence was appropriate to reflect the primary judge’s concern that the father may attempt to thwart the return of the mother and children to Australia.
CONCLUSION
We find no error in the primary judge’s finding of contempt and subsequent penalty. Consequently, both appeals should be dismissed.
COSTS
As the father was self-represented on appeal, and the mother and the Independent Children’s Lawyer did not participate in the appeal, there will be no order as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 31 January 2019.
Associate:
Date: 31 January 2019
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