Pitman & Hynes
[2022] FedCFamC1F 188
•21 March 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pitman & Hynes [2022] FedCFamC1F 188
File number(s): … Judgment of: SCHONELL J Date of judgment: 21 March 2022 Catchwords: FAMILY LAW – CONTEMPT – Contravention of Court orders – Where the wife contended 13 alleged contempts by the husband – Where the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) require service of an Application – Contempt along with a supporting affidavit – Where the Rules require personal service of the documents – Where it was not satisfied that the husband had been served – Where service of documents is essential in a contempt application under s 112AP of the Family Law Act 1975 (Cth) – Where the contempt application and supporting affidavit did not comply with the Rules – Application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Family Law Act 1975 (Cth) s 112AP
Cases cited: Ganem & Ganem (No. 2) [2013] FamCA 257
Ibbotson & Wincen (1994) FLC 92-496; [1994] FamCA 103
LGM & CAM (Contempt) (No. 2) (2008) FLC 93-355; [2008] FamCAFC 1
Division: Division 1 First Instance Number of paragraphs: 28 Date of hearing: 21 March 2022 Place: Sydney Applicant: Litigant in person Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Reheby Solicitor for the Independent Children's Lawyer: Legal Aid NSW Wollongong Family Law ORDERS
… FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PITMAN
Applicant
AND: MR HYNES
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
21 MARCH 2022
THE COURT ORDERS THAT:
1.The Application – Contempt filed on 10 August 2021 is dismissed.
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 the pseudonym Pitman & Hynes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings brought by the applicant Ms Pitman (“the wife”) against her former husband (“the husband”) seeking that he be dealt with pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”). The wife’s Application – Contempt was filed on 10 August 2021 in the Family Court of Australia, Sydney Registry (as it then was).
The Application contended 13 alleged breaches arising out of orders made by Judge Lapthorn on 13 February 2015 and 18 June 2015 in the Federal Circuit Court of Australia (as it then was). The alleged contempts were said to cover a range of dates between 23 March 2016 and 26 July 2019.
The Application – Contempt is but one application in a broader dispute between the parties in relation to their two children.
The alleged contempts include allegations that the husband was involved in “unconscionable acts of corruption with the New South Wales Police”, that the husband perjured himself, that the husband obtained benefit by deception, that the husband perpetrated heinous acts of family violence, and that he perverted the course of natural justice.
The wife appeared in person as did the husband. An issue was raised at the commencement of the hearing in relation to the question of service and compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) more generally.
The wife sought to rely upon an Application – Contempt, an affidavit filed 10 August 2021, and an affidavit of service filed 1 September 2021.
An application under s 112AP involving as it does “a flagrant challenge to the authority of the court” is a most serious application.
The words “flagrant challenge” were the subject of comment by the Full Court in Ibbotson & Wincen (1994) FLC 92-496, where their Honours said at 81,162:
… The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s. 112AD.
The seriousness of the application is underscored by the provisions of s 112AP(4), which provides as follows:
Contempt
…
(4)where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
In Ganem & Ganem (No. 2) [2013] FamCA 257, Aldridge J observed:
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 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. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” … is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.
In light of the seriousness of the application, the Rules of Court are required to be adhered to. As Finn J observed in LGM & CAM (Contempt) (No. 2) (2008) FLC 93-355:
123. … I endorse the following remarks by his Honour in his reasons for judgment:
8.It is the case, and has been for well over a century, that procedural requirements in contempt proceedings are to be strictly adhered to unless there are strong reasons to do otherwise. As proceedings in which the respondent faces the possibility of imprisonment or other penalty, the applicant and the Court must take them very seriously. As a mark of their seriousness the rules are generally strictly applied.
The Rules require service of not just an application, but also an affidavit setting out the facts relied upon. A respondent to a s 112AP Application – Contempt is entitled to know all that is alleged against him, and is entitled to and is required to be served with all documents said to be relied upon by the applicant. The Rules require that the documents be served personally.
A number of orders have been made in these proceedings in relation to service.
On 2 September 2021, on the first return date of the Application, there was no appearance by the wife. The husband and the ICL appeared. The Court noted that the documents had not been served, and the husband advised the Court that he would accept service of the documents if they were left at the front doorstep of J Street, Suburb H. Order 1 of the Orders made 2 September 2021 made specific provision for service:
1. The applicant mother is to effect service on the father by causing a copy of all the documents filed by her on 20 August 2021 to be left on the front doorstep of J Street Suburb H by no later than 4pm on
1017 * September 2021.The matter was adjourned to 21 September 2021 and on this occasion, the wife and husband appeared, as did the Independent Children’s Lawyer (“ICL”). The Court extended the time for service to 4.00 pm on 5 October 2021. The order identified that if service was not effected, the Contempt Application would be referred for summary dismissal. The matter was adjourned to 25 October 2021.
On 25 October 2021, there was an appearance by the wife and the husband and the ICL. The Court recorded the following:
B.The Respondent father and Independent Children’s lawyer advise the court that they have not been served by the Applicant in accordance with previous orders made on 2 September 2021 and 21 September 2021.
It is clear that as at 25 October 2021, the husband put in issue the question of service. On the appearance before me this day, the husband maintained the position that he had not been served.
The evidence before the Court as to service relied upon by the wife is an Affidavit of Service by the wife, who identifies that there was an attempt to serve the husband at 41 Burelli Street, Wollongong on 1 September 2021 at 12.00 pm. The affidavit annexes a letter dated 1 September 2021 from the Office of the Sherriff of New South Wales and records the following:
Sherriffs Officers sighted a sign at the door stating building’s closed until further notice.
Officer Hall contacted the defendant who advised he has already received the documents via email.
It is not clear what document that refers to. The affidavit of service identifies the only document that was allegedly attempted to be served was by reference to the box ticked an “Application – Contempt”.
The wife before me asserted that an email was sent to the husband on 20 August 2021, which attached an Application – Contempt, an affidavit of 10 August 2021, a notice to the Attorneys General, and submissions to the Attorneys General.
Before me the wife contended that the husband before the registrar on 2 September 2021 perjured himself and was involved in perverting the natural course of justice.
The Rules are quite clear. The Application and supporting affidavit are to be served personally. A respondent may waive compliance with the Rules, an applicant may not. It is clear by the orders of 2 September 2021, that the husband indicated that he would accept service in a particular way. The wife has chosen not to avail herself of such a proposal in the allotted time.
I am not satisfied that the husband has been served properly.
I further note that the Application makes reference to numerous documents said to support each of the alleged contempt’s. Those documents include amongst others, various affidavits, documents contained in subpoenas addressed to the New South Wales Police, a medical centre, a high school and other documents. It is apparent from the terms of the Application and from reference to the affidavit relied upon by the wife that these documents have not been served upon the husband.
I further note that the Application – Contempt and the affidavit in support do not comply with the Rules. The Application – Contempt does not attach the relevant orders. The affidavit does not set out the facts relied upon.
The husband, who faces a serious application that involves the establishment of the facts beyond a reasonable doubt, is required to be served with all of the documents that go to the case sought to be brought against him. I am comfortably satisfied that the husband has not been served with the documents that are necessary for the wife to proceed with her case. In my view, service is a fundamental requirement in an application under s 112AP.
In circumstances where there has not been compliance with the Rules, it must naturally follow that the Application should be dismissed and accordingly I will so order.
I note in passing, that there are a number of significant problems with the Application as framed. It does not identify whether it is an alleged contempt pursuant to s 112AP(1)(a) or s 112AP(1)(b). The affidavit in support asserts the contempt arises under s 112AP(1)(b). The affidavit identifies the orders are those made 18 June 2018. Assuming infelicitous drafting and it is to be read 18 June 2015, the further difficulty is that the Application charges breaches of orders made on 13 February 2015 and 18 June 2015. A respondent to an application of this type is entitled to know with clear precision exactly what it is that he is alleged to have done. It is further arguable, notwithstanding the tortious framing of the charges, that some would fail to meet the requirement of s 112AP(1)(b). It is further arguable, in circumstances where it is alleged that the contempt involves a flagrant challenge to the authority of the Court that made the order, that this Application has been filed in the wrong Court.
I dismiss the Application.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 21 March 2022
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