Peters and Ortona (No 2)

[2015] FamCA 800

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA (NO 2) [2015] FamCA 800

FAMILY LAW – CONTEMPT – Mother’s application for contempt against the Independent Children’s Lawyer – where the mother alleges that the Independent Children’s Lawyer did not follow a direction of the trial judge – where the mother alleges that the Independent Children’s Lawyer’s failure to follow that direction denied the mother natural justice – where the mother’s application did not comply with the Rules – where the mother failed to file an affidavit in support –where the transcript demonstrates that no direction was made to the Independent Children’s Lawyer as alleged and that the Independent Children’s Lawyer gave no undertaking – no evidence to support the mother’s application – interim orders made that the mother’s application be dismissed

Family Law Act 1975 (Cth), s 112AP
Family Law Rules 2004 (Cth)

Friar & Friar [2011] FamCAFC 71

APPLICANT: Ms Peters

RESPONDENT: Independent Children’s Lawyer

FILE NUMBER: MLC 8590 of 2012

DATE DELIVERED: 6 May 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Macmillan

HEARING DATE: 6 May 2015

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Vohra

SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

IT IS ORDERED THAT

1. The application for contempt filed 23 March 2015 against the Independent Children’s Lawyer is dismissed.

2. The question of costs in respect of same is reserved.

3. All extant applications are adjourned for telephone mention before Justice Macmillan at 9.30am on 28 May 2015.

AND IT IS NOTED THAT

The mother will telephone the Court on the number provided to her this day at 9.30am on the adjourned date

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Ortona (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC8590/2012

Ms Peters

Applicant

And

Independent Children’s Lawyer

Respondent

REASONS FOR JUDGMENT

1. The application listed before me in the Judicial Duty List this day is the mother’s application that Caroline Smith who was, until final orders were made by Justice Thornton on 26 February 2015, the Independent Children’s Lawyer in this case, that she be dealt with contempt pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”).

2. It was counsel for the Independent Children’s Lawyer’s application that the mother’s application for contempt should be summarily dismissed.  The mother’s application, which was filed on 23 March 2015, alleged as follows:

   By verbal direction Caroline Smith, Independent Children’s Lawyer, was directed by Justice Thornton to inform the mother (namely the applicant in these proceedings, [Ms Peters]) the details of the case on the 30^th December 2014 and that the mother have the ability to re open and adduce further evidence regarding the Family Court case on foot. 

   Caroline Smith, flagrantly denied me of natural justice as she refused to comply with this direction. 

3. It was submitted by counsel for the Independent Children’s Lawyer that the mother’s application did not comply with the Family Law Rules 2004 (Cth) (“the Rules”) in that it had not been signed in the presence of the justice of the peace, notary public, or a lawyer and that she had not complied with rule 21.02 of the Rules in that she had not filed an affidavit in support of that application. Counsel for the Independent Children’s Lawyer, whilst noting the deficiencies in the matter’s application and supporting material, did not rely upon those deficiencies for the purposes of the application for summary dismissal.

4. Although the mother did not file an affidavit in support of her application she did attach to that application a document headed “Part D Evidence”.  That document was similarly not sworn before a justice of the peace, notary public or a lawyer.  Counsel for the Independent Children’s Lawyer submitted, correctly so in my view, that, apart from paragraph 7, 8 and possibly paragraph 26, the document attached to the mother’s application should be struck out on the basis on that it was not relevant to the issues in dispute. 

5. The mother made submissions with respect to various other paragraphs which she submitted were relevant but, ultimately, apart from the first sentence in paragraph 13 of the document, conceded that the balance of the document should be struck out.  On that basis the evidence before the Court for the purposes of determining the Independent Children’s Lawyer’s application for summary dismissal is paragraph 7, 8, the first sentence of paragraph 13 and paragraph 26 of the document attached to the mother’s application. 

6. In the case of Friar & Friar [2011] FamCAFC 71–Thackray CJ and Watts J, in their joint judgment, did not take issue with the trial judge’s findings that the principles relevant for the purposes of an application for summary dismissal. They were as set out in paragraph 8 of Finn J’s judgment in that same case as follows:

   17. … (a) The power for summary dismissal is a discretionary one.

   (b) Relief “is rarely and sparingly provided”.

   (c) The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”

   (d) A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.

   (e) “If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.

   (f) “If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings”.’

   In determining an application of this nature … the rule … is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the court to proceed on the basis that the respondent's version will ultimately be accepted at the trial of the action (see Webster vLampard (1993) 177 CLR 598 at 608).”

   …

   20. Further support for the proposition that an application for summary dismissal must be determined on the basis only of the material put forward by the respondent (to that application) is to be found in the passage from the judgment of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 (which was quoted by the Full Court in its judgment in Bigg v Suzi) where his Honour said:

   "... 2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.)”

7. That being said, their Honours Thackray CJ and Watts J pointed out that the test to be applied by the Court for the purposes of an application for summary dismissal is set out in Rule 10.12 of the Rules as follows:

   A party may apply for summary orders after a response has been filed if the party claims, in relation to the application and response, that:

   (a)the court has no jurisdiction;

   (b)the other party has no legal capacity to apply for the orders sought;

   (c)it is frivolous, vexatious or an abuse of process; or

   (d)there is no reasonable likelihood of success. 

8. The mother’s application in this case is that the Independent Children’s Lawyer should be dealt with by the Court for contempt. It is a serious matter indeed to allege that an officer of this court is in contempt. Section 112AP(1) of the Act provides as follows:

   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. 

9. The mother in this case initially submitted that she sought to proceed on the basis of s 112AP(1)(b). However, the mother ultimately submitted that her case rested on subparagraph (a) of that section. That being said her submissions did appear to be based upon there having been a direction made to the Independent Children’s Lawyer by Thornton J on 10 January 2014 which the Independent Children’s Lawyer had failed to comply with.

10. As previously discussed the evidence relied upon by the mother was as set out in paragraph 7, 8, the first sentence of paragraph 13 and paragraph 26 as follows:

    7. During the court proceedings held ex parte on the 30^th of December 2014, Caroline Smith, the Indpendent [sic] childrens [sic] lawyer was directed by Justice Thornton to inform me that the proceedings were able to be re-opened, and that Caroline Smith agreed to inform me as such. I have annexured [sic] herein a copy of the transcript referring to this matter marked as “DP-02”.

    8.I was never informed and this is a flagrant disregard to the directions given by Justice Thornton by an officer of the court, Caroline Smith. I asked Caroline Smith about these proceedings on a number of occasions, and she refused to assist me or provide me any information that would have enabled me to provide information required for my case. I have annexured [sic] herein a copy of emails referring to this matter marked as “DP-03”.

    13.I contacted the legal aid assistant to Caroline Smith by telephone, [Ms YY] about the 20^th of January 2015 …

    26.Justice Thornton on the 30^th of December 2014 informed Caroline Smith that she was allowing me to re-open my Family Law Trial to adduce further evidence. Under a Less Adversarial Trial, this verbal direction is deemed as the same as a written direction by a Judge. Yet Caroline Smith took it upon herself to defy Justice Thorntons [sic] Orders, and as a consequence, deny me and my children natural justice.

11. The mother, in support of her application, also relied upon a passage of the transcript of proceedings before Thornton J on 30 December 2014.  That passage, which was marked by the mother as DP-02, was as follows:

    Her Honour: But what I’m proposing to do is if I – if there’s no application by either party to reopen, just to be clear about this, by that date – I just wanted to make sure it wasn’t a public holiday, the date. So if there’s no further application by either party by 27 January, then I would propose notifying the parties soon after that, in February, and delivering judgment but without taking any further material. But if there’s an application to reopen, I will hear further material.

    [The father]: Yes, your Honour.

    Her Honour:  And so far as the Independent Children’s Lawyer is concerned, you might want to communicate that to the mother if you’re speaking – if the mother does contact you about this matter.

    Ms Smith:     Yes, your Honour, certainly.

12. That is the evidence upon which counsel for the Independent Children’s Lawyer based her application and the evidence to which I have had regard. 

13. Section 112AP of the Act gives this court a general contempt power. That power is to deal with a contravention in circumstances where that contravention involves a flagrant challenge to the authority of the Court (s 112AP(1)(b)). It also gives this court power to deal with a person for contempt where an order has not been contravened but where that person has challenged the authority of the Court or has interfered with the administration of justice (s 112AP(1)(a)). The wording of s 112AP(1)(b) in that although it involves a contravention, that contravention must also involve a flagrant challenge to the authority of the Court, indicates the nature of the actions that are contemplated.

14. There is, in this case, no order or direction made by Thornton J to the Independent Children’s Lawyer nor did the Independent Children’s Lawyer give any undertaking to the Court on 30 December 2014.  There is, on that basis, no evidence which would support an application for contempt based upon s 1112AP(1)(b).  I will again repeat the words of Thornton J in relation to what she said to the Independent Children’s Lawyer in Court that day. 

15. Thornton J did not order direct or even ask the Independent Children’s Lawyer to contact the mother.  There is similarly no evidence before me in support of the application for contempt that the Independent Children’s Lawyer has challenged the authority of the Court or interfered with the administration of justice.  Although the mother made broad and general submissions with respect to what she said was the improper conduct of the Independent Children’s Lawyer, these are contempt proceedings and the evidence upon which the mother relies must be relevant to the allegations she makes and bearing in mind the standard of proof is the criminal standard. 

16. This is not a case which rests upon the evidence not meeting the criminal standard.  There is, in this case, simply no evidence to support the mother’s allegations.  In all of the circumstances I am satisfied that not only is there no reasonable likelihood of its success, but that the mother’s application in this case is misconceived and doomed to fail.  On that basis I propose to summarily dismiss the mother’s application. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 May 2015.

Associate: 

Date:  1 September 2015