Perica & Perica (No 2)
[2023] FedCFamC2F 1010
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perica & Perica (No 2) [2023] FedCFamC2F 1010
File number(s): HBC 984 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – contempt – property – where the husband seeks to proceed with an amended Contempt Application in respect of twenty counts – where wife legally represented – prima facie case established Legislation: Family Law Act 1975 (Cth), pts XIIIA, XIIIB, ss 112AP(1), 112AP(1)(b)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.02, 11.71(3), 11.71(7), 11.71(7)(a)
Cases cited: Bande & Cade [2011] FamCAFC 93
Fierro & Fierro (No 7) [2023] FedCFamC1A 24
Kendling and Anor & Kendling (Contempt) [2008] FamCAFC 154
LGM & CAM (Contempt) [2008] FamCAFC 1
Stradford & Stradford [2019] FamCAFC 25
Division: Division 2 Family Law Number of paragraphs: 51 Date of hearing: 26 July 2023 Place: Hobart For the Applicant: In person Counsel for the Respondent: Mr McKenna Solicitor for the Respondent: Murdoch Clarke ORDERS
HBC 984 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR PERICA
Applicant
AND: MS PERICA
Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
11 August 2023
THE COURT RULES THAT:
1.There is a prima facie case against the Respondent for Contempt.
THE COURT ORDERS THAT:
2.The Contempt Application filed 31 May 2023 is listed for finalisation of hearing to 25 August 2023 at 3:00pm.
3.The Respondent Wife file and serve any affidavit material upon which she relies in her defence to the Contempt filed 31 May 2023 by 4:00pm on 23 August 2023.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
In his Contempt Application filed 31 May 2023 (“the Contempt Application”), the Applicant Husband Mr Perica (“the Husband”) alleges that the Respondent Wife Ms Perica (“the Wife”) contravened court orders on numerous occasions and accordingly is liable to be punished for contempt under the Family Law Act 1975 (Cth) (“the Act”).
The Contempt Application sets out 24 alleged counts of breach on the part of the Wife. At the outset of the hearing of the Contempt Application on 26 July 2023, I sought clarification of the grounds of the Contempt Application as the document confusingly referred to a multitude of contraventions of the Central Practice Directions, Rules of the Court, and court orders.
The Husband clarified that he sought to confine his application specifically to an alleged contempt pursuant to Part XIIIB of the Act. Following discussion with me about the terms of s 112AP(1) of the Act, upon which he relied, the Husband confirmed that certain paragraphs of the Content Application should be dismissed and others confined to asserted breach of particular orders made in the property proceedings, either by myself or by Judicial Registrars.
Accordingly, the Contempt Application specifically proceeded on a reduced scope in accordance with allegations which I have summarised for convenience and attached to these reasons marked as Annexure “A”.
As I doubted whether Part XIIIB of the Act was the appropriate forum for pursuing what I understood was the Husband’s grievance and motivation for bringing the Contempt Application, I asked for clarification about this. He confirmed that he sought to bring the Wife to account for continuing to breach numerous general and specific orders for disclosure and discovery over a lengthy period. He maintained this continuing breach of orders was a flagrant challenge to the authority of the Court.
After the scope of the Contempt Application was clarified, Counsel for the Wife indicated that all allegations were denied. I clarified whether it was necessary to put each alleged breach to the Wife, and after taking instructions Counsel indicated that was unnecessary and reiterated that the Wife requested that the Court received her not guilty pleas to all alleged breaches through Counsel.
As the Wife was in court and specific instructions had been taken, I recorded denials and not guilty pleas to each alleged count identified in the Contempt Application and summarised in Annexure “A”.
The application by the Husband is competent as he is a party to the property proceedings in respect of which he alleges the Wife has contravened multiple court orders.[1]
[1] Rule 11.71(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
As I have noted, the Wife came before the Court at the hearing and denied each allegation against her. Accordingly, I received the Husband’s evidence in support of the amended Contempt Application. He relied upon his affidavit affirmed 25 May 2023 together with all its annexures, in totality consisting of 37 pages. He also tendered into evidence without challenge to their authenticity:
·The Undertaking as to Disclosure signed by the Wife and filed on 27 October 2021 pursuant to r 6.02 of the Rules; and
·The Genuine Steps Certificate signed by the Wife and filed on 27 October 2021 pursuant to the Court’s Central Practice Direction.
Following close of the Husband’s case, Counsel for the Wife made submissions for dismissal of the amended Contempt Application and also invited the Court to conclude that there was no prima facie case.[2]
[2] Rule 11.71(7)(a) of the Rules.
This ruling addresses Counsel’s submissions for dismissal.
CONTENTIONS FOR DISMISSAL
Counsel for the Wife submitted that the amended Contempt Application should be dismissed on the basis that:
(a)The amended Contempt Application and allegations lack clarity, are vague and ambiguous;
(b)All alleged breaches relate to procedural non-compliance, not matters of substance;
(c)The Wife was legally represented at all relevant times, and it can be readily inferred that her case was conducted according to legal advice. The sentiment of this submission was that, in the event that she did breach a number of the orders as set out in the amended Contempt Application, it was not a deliberate or intentional affront to the authority of the Court.
The grounds for dismissal were elaborated upon by Counsel. It was submitted that for all intents and purposes the contraventions particularised in the amended Contempt Application, if demonstrated, merely reflected procedural non-compliance and ought not to be subject to contempt application, but instead if to be prosecuted should proceed pursuant to Part XIIIA of the Act.
The authority of Bande & Cade [2011] FamCAFC 93 was cited as authority supporting the claim that the amended Contempt Application was defective in nature. It was submitted that the charges did not specify the nature of the contempt alleged.
Further, if contempt of the orders was established, it was not of substance as the Court had conducted a defended hearing in the substantive property proceedings in the preceding two days and the parties had relied on a joint agreed balance sheet which identified assets and liabilities for that purpose. Implicit in this submission was a contention that any non-compliance with Court’s procedural orders had not prejudiced or jeopardised conduct of the defended hearing.
Finally, Counsel for the Wife submitted that the Husband had not proved contempt on a prima facie basis as there was no evidence before the Court as to whether the Wife had received the orders or had advice given to her about what was required of her by the terms of the orders.
Counsel submitted that where a party is legally represented, the party is dependent on a legal practitioner and in the absence of evidence of an intention by the party to deliberately disobey the Court’s orders, contempt cannot be made out. He submitted that the Wife is the “wrong person”, meaning the wrong person as the target of the Contempt Application in this case.
The Husband was invited to make submissions in reply, but simply relied on the evidence tendered in his case. He did not seek to make any submissions or address the authorities relied upon by Counsel for the Wife.
LEGAL PRINCIPLES AND EVALUATION
At this juncture, noting the submissions by Counsel for the Wife, it is important to observe the contentions were advanced in a global manner, without distinguishing whether they merged, stood alone or relied on an express power or legal principle to dismiss.
Counsel did refer to Fierro & Fierro (No 7) [2023] FedCFamC1A 24 (“Fierro”) and although he initially invited the Court to summarily dismiss the amended Contempt Application, he subsequently appeared to accept the guiding principles in Fierro and the need not to confuse summary dismissal with the procedure and power of the Court on a Contempt Application.
In respect to the Court’s function and power, the Full Court in Fierro at [37] to [42] explained that contempt in either civil or criminal proceedings are quasi criminal in nature and not amenable to dispensation on a summary dismissal basis. Relevantly, the Full Court stated:[3]
Absent the citation of binding or persuasive authority saying otherwise, the quasi-criminal nature of contempt applications warrants their differential treatment from conventional civil suits: they may be dismissed if the counts are inherently defective (and hence it would be an abuse of process to prosecute them) or if there is no case for the respondent to answer, but should not be dismissed because the counts ostensibly lack reasonable prospects of success. The proper procedure is recognised within rr 10.09(1)(c), 11.70(2), 11.71(6) and 11.71(7) of the Rules.
[3] At [43].
I took the Wife’s Counsel to abandon the submission as to summary dismissal and instead confine his contentions to urging the Court to dismiss on either basis explained in Fierro as cited above.
Accordingly, the task is to ascertain if the amended Contempt Application is inherently defective or if there is no case to answer or as referred to in r 11.71(7) of the Rules.
Whether the amended Contempt Application is inherently defective relates to the terms and form of the allegations made and whether there is clarity about what is alleged to constitute the contempt.
Whether the amended Contempt Application and evidence in support of it establishes a prima facie case, however, involves consideration of the merits of the grounds alleged. This is explained by the Full Court in Fierro at [41] to [42].
It is also pertinent to observe that, as this is a Contempt Application expressly brought pursuant to s 112AP of the Act, for the application to succeed the Husband must show that the contraventions involve flagrant challenge to the authority of the Court.[4]
[4] Section 112AP(1)(b) of the Act.
The Full Court of the Family Court of Australia considered the concept of flagrant challenge to the authority of the Court in Kendling and Anor & Kendling (Contempt) [2008] FamCAFC 154. The entire judgment is exceedingly instructive, but for the current purpose of assessing if there is a prima facie case, paragraphs [182] to [200] are particularly helpful.
If the evidence fails to rise to the level that may persuade the Court that one or more contraventions of orders is able to be classified as “flagrant”, then the application will necessarily fail, because a statutory element of s 112AP of the Act will never exist.[5]
[5] Ie s 112AP(1)(b) of the Act not satisfied.
EVIDENCE OF CONTEMPT
The amended Contempt Application originally alleged breach of the Court Rules, Central Practice Direction, and orders of the Court. The amended Contempt Application was limited to alleged contempt of orders.
The multiple contraventions alleged by the Husband in the amended Contempt Application specifically identify what are alleged to be:
(a)Continuing failure over many months to satisfy the terms of various orders made on 3 November 2021, 21 February 2021, 13 April 2022, 18 May 2022, 1 June 2022 and 20 September 2022; and
(b)Provision of false statement in an affidavit about custody or control of particular documents.
The affidavit affirmed on 25 May 2023 sets out in a relatively logical and chronological manner the events occurring before the Court and communications between the Husband and the solicitor for the Wife about disclosure and trial preparation.
In particular, the evidence contained within the affidavit states when requests for documents or actions were made after relevant court orders were made. In addition, it states whether the requests were either not replied to or not replied to within timeframes required by orders, or were wholly or only partially complied with.
Reading the many annexures to the affidavit together with the orders on the court record referred to in the amended Contempt Application, it is clear that the Husband alleges failures by the Wife in contempt of orders as follows:
·Failure to disclose certain documents within timeframes required by court orders dated 3 November 2021, 21 February 2022, 18 May 2022, and 20 September 2022;
·Failure to lodge an updated Financial Statement within timeframe ordered on 18 May 2022;
·Failure to arrange inspection of the matrimonial home for building inspection within the time ordered on 20 September 2022;
·Failure to confer for the purpose of preparing for and identifying issues for the Compliance and Readiness Hearing as required by order dated 1 June 2022;
·Ongoing failure to comply with provision of most of the documents identified in Order 1 made on 20 September 2022, until at least the date of filing the Contempt Application; and
·On 2 November 2022, swearing an affidavit purportedly in compliance with the order made on 20 September 2022, which:
·Did not in fact comply with the requirements of the order; and
·Was alleged to be untrue in respect of the existence of documents evidencing rent paid to her in respect of the matrimonial home by other persons and her father’s estate.
Accordingly, I reject the submission that the allegations are vague, ambiguous and lack clarity such that the amended Contempt Application should be dismissed because it is defective or an abuse of process.
Turning to whether the Husband has established a prima facie case and, if not, dismissal of the amended Contempt Application, it is salient to observe that apart from the contention relating to whether the Wife falsely swore an affidavit about not having possession or control of documents referred to in the order of 20 September 2022, I agree that the alleged contraventions relate to procedural orders that required disclosure or discovery of documents relevant to the property adjustment proceedings. Accordingly, I mostly, but not completely, accept the second contention by Counsel for the Wife referred to at [12] of these reasons.
There is no unqualified legal principle or authority to which I was referred which stands for the proposition that, where the contravention(s) relate only to procedural orders, Part XIIIB has no role and that instead Part XIIIA is to be invoked.
In Stradford & Stradford [2019] FamCAFC 25, the Full Court of the Family Court appears to have left open the use of Part XIIIB in cases confined to contravention of procedural orders. At [68] of the Court’s reasons for judgment, it stated:
It is difficult to envisage a case where failure to comply with orders for disclosure could be said to involve a flagrant challenge to the authority of the Court or where an established failure to fully disclose could be other than a contravention covered by Part XIIIA of the Act and not Part XIIIB.
By stating it was “difficult to envisage”, the Full Court did not rule out the possibility that failure to comply with orders for disclosure in certain circumstances could amount to a flagrant challenge of the authority of the Court.
It is notable that the failure to provide a number of documents required by the court orders persisted for at least eight months or more in some instances, as appears to be established by the affidavit of the Husband affirmed 25 May 2023 at [22]. The Wife’s Counsel did not take issue with the statement.
Further, when I conducted the trial management hearing on 12 July 2023 to confirm readiness for the defended property proceeding hearing scheduled for 24 July 2023, the Contempt Application was also listed for directions. I was informed by the Husband that he was agreeable to the Contempt Application to be adjourned to be heard during the days upon which the final property proceedings listed.
On 12 July 2023, the practitioner with usual carriage of the proceedings for the Wife had retired and another practitioner appeared for her. The Husband maintained his statement that disclosure of documents had still not been fully complied with and that the documents referred to in the Court’s order of 20 September 2022 had not all been received.
As it transpires, I am aware from the court record and case management of these proceedings in my docket that the balance documents were not provided to the Applicant until shortly after 12 July 2023.
In addition, the Amended Application and evidence in support conveys that false statements were made about custody or control of documents relating to rent received and the Respondent’s interest in her father’s estate.[6]
[6] Affidavit of the Husband affirmed 25 May 2023 at [23].
Concerning the third contention at [12] of these reasons, it is self-evident from the court record that the Wife was legally represented by B Lawyers until 9 December 2021 and from 17 December 2022 by Murdoch Clarke Lawyers.
There is no evidence before the Court that the Wife had direct notice of the orders made and alleged to have been breached. However, the court record shows that the Wife was legally represented at all times, and it might be properly inferred that she did have notice of the orders made because her legal practitioners, as officers of the Court and having duties of care and diligence to a client, would be expected to inform her of the relevant orders.
Whether an inference of this kind is open was the subject of the Full Court’s judgment on remission from the High Court in LGM & CAM (Contempt) [2008] FamCAFC 1. The judgment addressed the question of whether inference can be drawn about a party’s knowledge of an order in circumstances where there is no evidence to contradict imputed knowledge derived from a solicitor acting for the party, which issue had been considered by the High Court. At [20] of Full Court’s judgment, the High Court’s ratio is set out. Simply put, an inference is not prevented in these proceedings because of legal professional privilege and the Wife’s silence.
On remittal of the appeal from the High Court, the justices of the Full Court evaluated what inferences were open in the circumstances of that case where the respondent to the contempt application had not given evidence, was legally represented, and the applicant did not adduce evidence amounting to an admission on the respondent’s part of knowledge of the court orders. The court concluded at [34]:
In our view, in the exercise of the ordinary powers of human reason in light of human experience of the conduct of litigation by lawyers, the inference drawn by Cohen J beyond reasonable doubt was open to him.
At this juncture of these proceedings, the Court is satisfied that there is a prima facie case against the Wife because I am prepared to draw the inference that the solicitor on the record did notify her of the orders made and what was required of her because of the orders.
I am not considering if the Wife should be found to be in contempt, but rather whether she could be, as emphasised in Fierro.[7]
[7] At [41].
I have arrived at this view because, on the evidence, there is continued non-compliance of orders made by this Court as described at [33] of these reasons and the tender of exhibits at the property trial includes documents about the Wife having an interest arising from her father’s death. The value of that interest is a post-separation interest, and is disclosed as a financial resource in the joint balance sheet.[8]
[8] Tendered as Exhibit J-1 in the substantive property hearing.
In view of the conclusion at which I have arrived, the Wife will need to consider if she wishes to state a defence to the allegations and give evidence. The Court will then determine whether she should be convicted of contempt.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 11 August 2023
Annexure A
Contempt No Date Abandoned/Pursued 1 21 October 2021 Abandoned 2 27 October 2021 Abandoned 3 19 December 2021 Pursued in respect of Order 2 of the Orders made 3 November 2021 4 3 March 2022 Pursued in respect of Order 2 of the Orders made 3 November 2021 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) 5 6 January 2022 Pursued in respect of Order 2 of the Orders made 3 November 2021 6 24 January 2021 Pursued in respect of Order 2 of the Orders made 3 November 2021 7 4 February 2022 Abandoned 8 10 February 2022 Pursued in respect of Order 2 of the Orders made 3 November 2021 9 14 February 2022 Pursued in respect of Orders 3 and 6 of the Orders made 3 November 2021 10 21 February 2022 Abandoned 11 19 December 2021 to 21 February 2022 Abandoned 12 22 April 2022 Pursued in respect of Order 4 of the Orders made 13 April 2022 13 8 April 2022 Abandoned 14 2 May 2022 Pursued in respect of Order 2 of the Orders made 3 November 2021 15 21 February 2022 Pursued in respect of Order 2 of the Orders made 21 February 2022 16 13 May 2022 Pursued in respect of Order 3 of the Orders made 21 February 2022 17 18 May 2022 Pursued in respect of Order 6 of the Orders made 18 May 2022 18 15 June 2022 Pursued in respect of Order 1 of the Orders made 18 May 2022 19 15 June 2022 Pursued in respect of Order 5 of the Orders made 18 May 2022 20 10 August 2022 Pursued in respect of Order 3 of the Orders made 1 June 2022 21 14 August 2022 Pursued 22 19 December 2021 to 15 August 2022 Abandoned 23 18 October 2022 Pursued 24 18 October 2022 Pursued in respect of Order 1 of the Orders made 20 September 2022
4
0