Wylie and Wylie

[2018] FamCA 627

FAMILY COURT OF AUSTRALIA

WYLIE & WYLIE [2018] FamCA 627

FAMILY LAW – CONTEMPT – Where a father filed an application seeking to punish the mother for contempt of Court after she acted contrary to Court orders and retained their children in her care – Where the father asserts that her contravention also involves a flagrant challenge to the authority of the Court – Where the mother seeks dismissal of the application or, alternatively, adjournment until after the determination of the mother’s criminal proceedings – Where a conviction for the criminal offences would not prevent this Court from making a finding of contempt against the mother – Where there may be a potential prejudice to the defence of the mother if the contempt proceedings are heard and determined before the criminal proceedings – Where the application is not considered urgent and will be adjourned to a date fixed after criminal proceedings against the mother are completed.

Family Law Act 1975 (Cth) ss 70NFB, 70NFH, 112AP
Criminal Code Act 1899 (QLD)

McClintock & Levier (2009) FLC 93-401
Sahari and Sahari (1976) FLC 90-086

APPLICANT: Mr Wylie

RESPONDENT: Ms Wylie

FILE NUMBER: TVC 1088 of 2011

DATE DELIVERED: 21 August 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gordon

SOLICITOR FOR THE APPLICANT:	Moloney MacCallum Abdelshahied Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Baston

SOLICITOR FOR THE RESPONDENT: Rennick Lawyers

Orders

1. That the Applicant father’s application for the mother to be punished for contempt filed on 5 July 2018 be adjourned for hearing on a date to be fixed after the completion of the criminal proceedings currently pending against the mother in the District Court in B Town.

2. That the Applicant father shall cause this Court to be notified when those criminal proceedings against the mother are completed and as to their outcome.

3. That after this Court receives notice from the Applicant father in accordance with (2) hereof, his application for the mother to be punished for contempt shall be listed for further mention for further consideration of its disposition.

4. That the Applicant father’s application for the mother to be punished for contempt shall, in any event, be listed for further mention before his Honour Justice Forrest at 9.30 am on Thursday, 18 April 2019.  

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 Wylie & Wylie 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC 1088 of 2011

Mr Wylie

Applicant

And

Ms Wylie

Respondent

REASONS FOR JUDGMENT

1. On 25 July 2018 I had listed before me for hearing an application brought by the father of twin girls seeking the punishment of the mother of those girls for contempt of Court.

2. The father alleges that the mother acted in contempt of this Court when on 4 April 2014 she collected the two girls from their school without the father’s consent, and contrary to final parenting orders of the Court made on 10 April 2013. On that day, the mother and the father had consented to final parenting orders being made after eight days of a trial of the contested parenting issues. Those final parenting orders provided for the father to have sole parental responsibility for the two girls and for them to live with him. They provided for the two girls to only spend time with the mother for a couple of hours at a time on a supervised basis at a Children’s Contact Centre.

3. There is no dispute that the mother collected the girls from their school and retained them in her care, contrary to, and in defiance of, the final parenting orders, until they were located by police on the coast of New South Wales in early May this year. In the four years from when the mother had taken the children from their school until they were located, a Recovery Order was made and renewed on four occasions, and a Publication Order was made pursuant to which relevant information about the missing girls was released to the media and published.

4. After the girls were found they were reunited with their father and they have lived with him here in Brisbane since then. The mother was arrested and extradited to Queensland. She was charged with two counts of unlawfully taking a child with intent to deprive the father of the custody of that child. They are offences under the Criminal Code Act 1899 (QLD) (“the Queensland Criminal Code”) and they carry penalty of imprisonment for seven years. After spending several days in custody, the mother was granted bail by a Supreme Court Judge, subject to stringent conditions. She awaits trial on the charges in the District Court in B Town. This Court was told that the mother intends to plead not guilty to the charges and that her trial is not expected to take place in B Town until sometime later than March next year.

5. Since the children were found and reunited with their father, they have spent no time with the mother. The existing final parenting order providing for them to spend supervised time with their mother has been suspended, and there are proceedings pending in this Court in which the father seeks the continuation of that suspension. The Court was told that the mother also seeks further orders, on an interim and final basis, providing for the two girls to spend time with her again on a supervised basis. The Court was told that a hearing of the interim applications of the mother and the father is currently listed for hearing before another Judge of this Court in September this year. However, my own review of that circumstance suggests that only the father’s application for continued suspension is listed for hearing before that other Judge in September.

6. The father’s application for the mother to be punished for contempt of Court was filed on 5 July 2018. It was listed for hearing on 25 July 2018. On the day before the listed hearing date, the Court received a request from the mother to be able to appear at the hearing by telephone. In support of that request, the Court was told that her bail conditions prevented her from travelling from B Town to Brisbane and the Court was provided with a copy of those bail conditions. I directed the mother’s legal representatives to be informed that the mother could appear by telephone but that the Court would require an explanation as to why the mother had not sought the consent of the Office of the Director of Public Prosecutions (Qld) to travel to Brisbane for the hearing as, on my reading, that possibility is something the bail conditions clearly contemplated.

7. At the hearing of the contempt application, the applicant father was represented by solicitor and counsel. The mother, too, was represented by solicitor and counsel who were in Court in Brisbane, though she personally appeared by telephone from B Town.

8. The mother’s counsel made application for the contempt application to be dismissed or, alternatively, adjourned until after the determination of the criminal proceedings the mother faces in the B Town District Court. The father’s counsel opposed the application.

9. After observing that it would be difficult for the hearing to proceed in the absence of the mother’s physical presence in Court, even if I rejected her application for dismissal or adjournment, I heard oral submissions. Both counsel, when invited to, informed the Court that they wanted to be able to prepare and file further written submissions. I reserved my decision on the dismissal/adjournment point and made directions for the filing of written submissions. I also ordered the mother to file an affidavit of evidence as to the reasons why she did not apply to the Office of the DPP for permission to be able to travel to Brisbane and I reserved the father’s costs thrown away by the adjournment caused by the mother’s non-appearance in person in Court.

10. Written submissions were received from counsel for the father. No further written submissions were received from counsel or solicitors on behalf of the mother.

The Mother’s Position

1. At the hearing, counsel for the mother referred the Court to s 70NFH of the Family Law Act 1975 (Cth) (“the Act”). He submitted that it applies in this case and compels this Court to dismiss these contempt proceedings against the mother or to, at least, adjourn them until after her criminal prosecution in the District Court has been completed.

2. With respect, I do not agree with that submission.

3. Section 70NFH provides:

   Relationship between Subdivision and other laws

   (1)This section applies where an act or omission by a person:

   (a) constitutes a contravention of an order under this Act affecting children; and

   (b) is also an offence against any law.

   (2)If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under section 70NFB in respect of the contravention of the order must:

   (a) adjourn those proceedings until the prosecution has been completed; or

   (b)     dismiss those proceedings.

   (3)      The person may be prosecuted for, and convicted of, the offence.

   (4) Nothing in this section renders the person liable to be punished twice in respect of the same act or omission.

4. I accept that the circumstances of this case make this a case to which s 70NFH applies. The acts of the mother constitute an alleged contravention of an order under the Act affecting children and it is alleged that they constitute an offence against the Queensland Criminal Code and the mother is being prosecuted in respect of the alleged offence in the District Court in this State. However, these proceedings that have been brought by the father in this Court are not brought under s 70NFB of the Act, therefore the mandatory requirement to dismiss or adjourn does not apply.

5. Division 13A of Part VII of the Act sets out the powers that a court with jurisdiction under the Act has to make orders enforcing compliance with orders under the Act affecting children. Whilst imprisonment for up to a maximum of twelve months is amongst the consequences that a person who has contravened a parenting order in circumstances which the Court is satisfied amount to a “more serious contravention” potentially faces, it has been said that the provisions contained in Division 13A have as their purpose “to enforce compliance with orders” whilst contempt proceedings under s 112AP of the Act have a “duality of purpose” in that they are “both coercive … and punitive, in that they punish for breaches of court orders.”[1]

   [1]McClintock & Levier (2009) FLC 93-401, [151] (Coleman J)

6. For the father, it was submitted that he invokes the Court’s power to punish contempt. That power is conferred by s 35 and s 112AP of the Act. Section 112AP(1) provides, relevantly:

   …, this section applies to a contempt of a court that:

   (a)   …

   (b)   constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

7. In this case, the father has made a decision to bring the application seeking to have the mother punished for contempt of court for that which he asserts is her contravention of an order under the Act, but which also involves a flagrant challenge to the authority of the court. In this respect, he has elected to invoke the Court’s power not to coerce or enforce the mother into complying with an order of the Court, as she is no longer acting in contravention of the order, but rather to punish her for those alleged actions.

8. Section 112AP(2) of the Act expressly empowers the Court to punish a person for contempt of the Court “[i]n spite of any other law”. I consider that provision confers power on the Court to hear and determine contempt proceedings against a party regardless of whether proceedings have or are being brought against the alleged contemnor pursuant to Division 13A of Part VII of the Act or a provision of any other State or Commonwealth legislation, such as the Queensland Criminal Code. As Coleman J went on to say in McClintock & Levier:

   In my view it is not without significance that the legislation does not exclude from the operation of s 112AP breaches of parenting orders. Nor does Division 13A of the Act purport to exclude any breaches of parenting orders from the operation of s 112AP. That state of affairs cannot have eventuated through inadvertence. I thus perceive there to be two kinds of proceedings with respect to breaches of parenting orders.[2]

   [2] Ibid [153]

9. I consider a person can choose to prosecute an action for contempt where he or she is alleging that the other party has contravened a parenting order in flagrant challenge to the authority of the Court without having to prosecute an action under Division 13A of Part VII (or any of the subdivisions of that Division). That is what the father has done in this case. Accordingly, as the action is not one brought under s 70NFB of the Act, the obligation contained in subsection (2) of s 70NFH is not mandated. The Court is not bound to dismiss or adjourn the application.

10. That said, I apprehend the argument of counsel for the mother to be that the contempt proceedings should be dismissed or adjourned in any event, just as contravention proceedings under s 70NFB would have to be if these proceedings were in fact such proceedings, as they could well have been. Indeed, counsel for the applicant father concedes that the Court has the power to adjourn the contempt proceedings as an exercise of its discretion. Unsurprisingly though, he submitted that the application should not be dismissed or adjourned.

11. In support of the application for the contempt proceedings to be dismissed, counsel argued that with both sets of proceedings on foot, the mother faces “double punishment” for the same action.

12. That said, I am quite satisfied that the father’s application should not be dismissed. As I have already observed, this Court is empowered to punish a person for contempt “[i]n spite of any other law”. Double jeopardy does not apply, as one proceeding is for the alleged commission of criminal offences in breach of the criminal law of the State, whilst the other proceeding is for the alleged contravention of a parenting order of this Court involving a “flagrant challenge to the authority of the Court”. Conviction for the criminal offences is not the same, in my judgment, as being found to have acted in contempt of this Court. Conviction for the criminal offences would not prevent this Court from making a finding of contempt against the mother.

13. As for the application for the contempt proceedings to be adjourned until after the criminal proceedings pending against the mother are completed, I respectfully accept that the arguments put for the mother in unsuccessful reliance on s 70NFH apply to its determination.

14. For the mother, it was submitted that hearing the contempt proceedings before the criminal proceedings would potentially prejudice her defence in the criminal proceedings as, in defending the contempt proceedings, she would naturally have to expose her defence or “show her hand”, as it was put to this Court. Counsel for the father submitted that the elements of the criminal offence are different to the elements of the contempt proceedings and, therefore, it is “not immediately apparent how the Respondent would be prejudiced in the manner that she alleges.” He also submitted that this Court could minimize any prejudice that might exist by making orders that the contempt proceedings be heard in closed Court. With respect, I am not convinced that such orders would actually remedy any such prejudice.

15. Significantly, as counsel for the applicant father pointed out in his written submissions, over forty years ago now, the Full Court said something authoritative on this point in Sahari and Sahari (1976) FLC 90-086. Their Honours said:

    Where the alleged facts constituting the contempt also constitute a crime the court has a careful and considered discretion to exercise. In some cases protection of the applicant will demand urgent action. In others the applicant’s protection can be left to the processes of the criminal law. Where only the affront to the court’s authority is involved and the same facts constitute a crime, the criminal processes should first be allowed to take their course. When they are concluded the court may then turn to the question whether the disobedience of its order merits further punishment in the public interest.

16. I apprehend that regard to the potential prejudice to the defence of a person charged with criminal offences arising out of acts or omissions that might equally constitute contravention of an order of this Court that flagrantly challenges the Court’s authority, that might occur if the contempt proceedings are heard and determined before the criminal proceedings, may very well be one of the factors that influenced the Full Court in forming that judgment.

17. Despite submissions for the father that urgent action is needed in the circumstances of this case, I am of the view that the father has invoked s 112AP so as to seek to have the Court punish the mother for her alleged contempt. It is not an application seeking some protection from the Court on an urgent basis. It is not an application for enforcement of an order on an urgent basis. It is, in my respectful view, an application to deal with an alleged “affront” to the Court’s authority.

18. Counsel for the father submitted that there is urgency arising from the mother’s application for interim orders that the children spend time with her again. Counsel for the father submitted that the question of whether the mother will be in prison or not ought to be considered a relevant factor in that proceeding, in that if she is to be sentenced to a term of imprisonment for the criminal offences or the contempt, then it would be best to happen sooner than later and for the parenting orders proceedings to be determined against greater certainty in respect of that potential outcome.

19. With respect, I am not persuaded by that argument to not follow the course outlined in Sahari; namely, to let the criminal proceedings conclude first. My colleague, Hogan J, will, with respect, determine the interim applications listed before her having regard to all of the facts in the case, including the circumstances of pending criminal proceedings and pending contempt proceedings, potential outcomes of which include the mother being imprisoned for lengthy periods of time. Her Honour will, according to law, do that with the best interests of the two children being her paramount concern.

20. I will adjourn the father’s application for the mother to be punished for contempt of this Court’s orders to a date to be fixed after criminal proceedings against her pending in the District Court at B Town are completed. I shall direct the father to notify this Court when those proceedings against the mother are completed and as to their outcome, after which his contempt application will be listed for further mention. For case management purposes, I will list the application for further mention, in any event, at 9.30 am on Thursday, 18 April 2019.

21. I make the orders set out at the commencement of these written reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 August 2018.

Associate:

Date:  21 August 2018