WYLIE & WYLIE

[2014] FamCA 174

FAMILY COURT OF AUSTRALIA

WYLIE & WYLIE [2014] FamCA 174

FAMILY LAW – PRACTICE AND PROCEDURE – Contempt – Where mother admitted to perjury in evidence given by her during earlier proceedings after the issuing of a certificate under s 128 – Where evidence in chief which the mother sought to give by her affidavit in subsequent proceedings was not protected by a s 128 certificate – Where the court accepted the mother was not competently represented and this would not have happened if she had been properly advised – Where the subsequent admission of perjury in the affidavit was unnecessary in the sense that it was irrelevant to the application – Where mother was a victim of extreme childhood sexual abuse and denied such under oath in a misguided attempt to protect her parents who were unaware of the abuse – Where the weighing of the factors did not in the Court’s exercise of discretion see the referral of the papers, it not being obliged to do so.

Family Law Act 1975 (Cth) s 128

Malpass v Mayson [2000] FamLR 288

APPLICANT: Ms Wylie

RESPONDENT: Mr Wylie

FILE NUMBER: TVC 1088 of 2011

DATE DELIVERED: 25 March 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 28 February and in Chambers on written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: 28 February 2014 in person.  Mr Fellows written submissions

THE RESPONDENT: In person

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 Act.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: TVC 1088 of 2011

Ms Wylie

Applicant

And

Mr Wylie

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 28 February 2014 I dismissed a Contravention Application which the mother had bought against the father in these proceedings.  That application had first come before me on 2 December 2013, on which occasion Ms Merkin of counsel then appeared for the mother.  At the outset I raised with her my concerns that in the mother’s affidavit filed on 7 November 2013 in support of her Contravention Application, she admitted to perjury.  In fact the mother had first admitted to perjury before me in evidence given by her during the course of the trial earlier in 2013, albeit that that evidence was only given after I had issued her a certificate under s 128 of the Evidence Act.  The perjury was a false denial that when the mother was a child and young adult, she had been the victim of horrific repeated rape and other sexual abuse by her older brother, over many years, culminating in the termination of a pregnancy.

2. As I pointed out to Ms Merkin on 2 December, the evidence-in-chief which the mother was seeking to then give by her affidavit of 7 November was not protected by a s 128 certificate.  Ultimately Ms Merkin did not read into evidence one of the two paragraphs in that affidavit which contained the admission of perjury, but there was still additional material in the affidavit from which that admission was established.  In any event, as I indicated to Ms Merkin, I was not necessarily of the view that merely not reading parts of an affidavit would thereby absolve the Court from having to consider whether or not it should refer the papers to the Director of Public Prosecutions for consideration as to whether or not a criminal prosecution should be commenced.

3. Sometime between 2 December 2013 and 28 February 2014, Ms Merkin ceased to be retained as counsel for the mother, who thereafter represented herself.  At the conclusion of the hearing on 28 February, I raised with the mother the prospect of the Court referring the papers to the DPP, and invited her to make any submissions that she may wish to make as to why I should not do so.  Mr Fellows of counsel, who had appeared for the mother at the trial in 2013, and had successfully sought to lead evidence of the mother’s perjury under the protection of a s 128 certificate, happened to be in Court waiting for the next matter to be called on, and heard my discussion with the mother.  He, on behalf of the mother, sought to again become involved in the case on a pro bono basis, and undertook to file written submissions within seven days in relation to the prospect of the papers being referred.  In due course he filed those submissions, together with some supporting material.

HOW DID THE FRESH ADMISSIONS COME TO BE MADE?

1. From Mr Fellows’ submissions it appears as though the mother’s affidavit ultimately filed on 7 November 2013 was initially drafted by Ms Merkin.  Precisely why, in an Application for Contravention, the affidavit was drawn so as to admit earlier perjury, is unclear.  Mr Fellows in his written submissions said that “[present] counsel does not understand why it was considered necessary,” and later submitted that such material added nothing to the allegation that the father had breached the relevant orders. 

2. Mr Fellows also queried in his written submissions why Ms Merkin chose not to read one of the paragraphs containing the admission of perjury, but continued to read the other.  He said:

   ..Ms Merkin sought a brief adjournment and withdrew reliance on para.4 of the affidavit filed 7 November 2013; though why she did not take a similar course with para.2 is a puzzle so far as present counsel is concerned.

3. He later said in his submissions “it would seem clear that the mother’s privilege against self-incrimination was not something that had been adverted to by either Ms Eccleston (the solicitor) or Ms Merkin.”   I accept that submission.

4. Ultimately, Mr Fellows contended that “[t]here is, at the least, a prima facie case that [the mother] was not competently represented”  both in the preparation of the 7 November affidavit and in Court on 2 December 2013.  He said that the situation which the mother now finds herself in – where there is a very real prospect of the Court referring the papers to the DPP –  “would not have happened if [the mother] had been properly advised.”  That appears correct.

THE LAW

1. Mr Fellows helpfully referred me to the decision of the Full Court in Malpass & Mayson [2000] FamLR 288 at [31] where the following passage appears:

   Despite the authorities we do not think that it necessarily follows that the Court is always under a duty to report the fact of commission of possible offences to relevant authorities including revenue authorities although it clearly has the power to do so.  Questions of degree must be relevant.  There are many cases where minor irregularities are revealed to taxation, social security and other issues.  We think it unreasonable for the Court to burden itself with a duty to report all of these matters.  Different considerations may apply in relation to more blatant and substantial irregularities.  We leave the determination of this issue to be determined in a case where the point arises directly.  It does not arise here for there is no dispute as to the Court’s power to make such a reference as His Honour did.

2. At paras.12 to 14 of his written submissions Mr Fellows said as follows:

   12. There are numerous cases in the reports showing that referrals have been made in cases of taxation fraud or irregularity and Centrelink fraud or irregularity.

   13. Counsel cannot find any significant case where a referral has been made for perjury though the possibility of such an event happening in an unreported decision cannot be precluded.

   14. Yet the cases are littered with judicial findings that a party has lied, been deceitful or been “less than candid.”  The usual penalty for a lie is that he/she loses (and sometime a costs order may result) – the more significant penalty of a prosecution referral appears, at best, a rare event if not non-existent. 

3. Under the heading “The Exercise of Discretion” at paras.19 to 23 Mr Fellows further submitted as follows:

   19. Counsel does not intend to suggest that the offence by my client ought be treated as insignificant.  But it is understandable and she is entitled to some sympathy.

   20. That the victims of childhood sexual abuse conceal their abuse even from their parents is a regular occurrence; it is a well-known facet of abuse cases – social science research informs us and the community understands that these victims feel blame and shame and are reluctant to re-experience the abuse through the telling of their stories.

   21. It is understandable that [the mother] set out to conceal the matters that are in her affidavit filed 9/3/13 – indeed, if there had been an earlier disclosure who could have predicted the events that might follow?  Would she have then experienced that the lawyers for [the mother] or the ICL called her (abusive) brother to testify against her?  Counsel’s memory (though a transcript is not available) for example is that counsel for [the father] and the ICL tested the veracity of [the mother’s] admission.

   22. In any event [the mother] has already suffered a very significant consequence from her behaviour – the “abandonment” of the trial and the Order made by the Court continuing the restrictions upon the children’s time with her.

   23. As well, properly advised, the content of paragraphs 2 – 4 of the affidavit filed 7/11/13 would never have appeared; or if relevant ought to have been the subject of the correct procedure under s.128 before its admission into evidence.

4. Therefore it can be seen that in essence Mr Fellows submitted:

   ·The initial admission of perjury had deliberately only been made by the mother after a s.128 certificate had issued in relation to that evidence;

   ·The subsequent admission by the mother in the 7 November affidavit by Ms Merkin was unnecessary (in the sense that it was irrelevant to the contravention application);

   ·The mother’s then lawyers had not adverted to the prospect that by admitting to perjury in a sworn affidavit, the mother would be incriminating herself;

   ·Competent counsel would not have drawn the affidavit in the first place in that form, or, upon it being brought to their attention, have continued to read into evidence such incriminating material.  The mother should not have that incompetence visited upon her in the form of the prospect of criminal prosecution;

   ·The Court should recognise that the mother was the victim of extreme childhood sexual abuse by her brother, and had only denied it under oath in a misguided attempt to protect her parents who were unaware of the abuse;

   ·That a proper weighing of those factors should not see the Court exercise its discretion to refer the papers, it not being obliged to do so.

5. I accept those submissions.  For those reasons I have determined not to refer the papers to the Director of Public Prosecutions.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 March 2014.

Associate: 

Date:  25 March 2014