ZABER & ZABER
[2017] FCCA 39
•13 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZABER & ZABER | [2017] FCCA 39 |
| Catchwords: FAMILY LAW – Contempt – onus of proof – beyond reasonable doubt – contempt established – issue of penalty stood over for further determination. |
| Legislation: Family Law Act 1975 (Cth), s.112AP Evidence Act 1995 (Cth), ss.69 & 141 |
| Cases cited: Bande & Cade [2011] FamCAFC 93 Briginshaw & Briginshaw (1938) 60 CLR 336 |
| Applicant: | MS ZABER |
| Respondent: | MR ZABER |
| File Number: | SYC 3308 of 2014 |
| Judgment of: | Judge Kemp |
| Hearing date: | 17 November 2016 |
| Date of Last Submission: | 17 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton SC |
| Solicitors for the Applicant: | Swaab Attorneys |
| Counsel for the Respondent: | Mr Timmins |
| Solicitors for the Respondent: | Patterson Byfield & Bryen |
THE COURT DECLARES:
With respect to Charge 2, as set out in the wife’s contempt application filed on 19 June 2015, that the respondent husband is guilty of a contempt of Court in that he deliberately disclosed the contents of documents obtained by way of discovery and the issue of a subpoena in these proceedings to another person, without permission of the Court.
With respect to Charge 3, as set out in the wife’s contempt application filed on 19 June 2015, that the respondent husband is guilty of a contempt of Court in that he deliberately provided copies of the contents of documents obtained by way of discovery and the issue of a subpoena in these proceedings to another person, without permission of the Court.
THE COURT ORDERS:
By consent, the matters the subject of Charge 1 as set out in the wife’s contempt application filed on 19 June 2015, are withdrawn and, otherwise, dismissed.
The husband file and serve any affidavit he wishes to rely on with respect to the question of penalty within 30 days of today’s date.
The matter be adjourned to 7 March 2017 at 9.15am for mention with respect to the question of penalty (if any) to be applied.
The wife have leave to issue a subpoena directed to any of the husband’s legal practitioners to produce documents, subject to any claim for legal professional privilege, such subpoena to be made returnable on the above date.
IT IS NOTED that publication of this judgment under the pseudonym Zaber & Zaber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3308 of 2014
| MS ZABER |
Applicant
And
| MR ZABER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a contempt application brought by the applicant wife in terms of her application filed on 19 June 2015, against the respondent husband.
That application first came before the Court on 29 October 2015 before Judge Monahan when the proceedings were transferred to my docket, and listed for 2 March 2016. Judge Monahan noted on that occasion that the husband did not intend to file any material in response to the said contempt application.
On 2 March 2016, when the matter came before me, it was then listed for hearing on 17 November 2016 at 10.00 am, with an estimate of 2 hours. The wife was directed to file and serve any trial affidavit on or before 30 June 2016. The husband to file and serve any responsive affidavit, if he elected to do so, by 31 August 2016. The parties were directed to forward a short case outline 7 days prior to the adjourned date, with any agreed bundle of documents to be prepared and filed on or before 28 October 2016. The Court reserved the parties’ costs. The Court noted, again, that both parties estimated the hearing would be no more than 2 hours.
On 17 November 2016, when the matter was listed for hearing, Mr Campton of Senior Counsel appeared for the wife and Mr Timmins of Counsel appeared for the husband.
The Law
The matter is being dealt with under section 112AP(1) of the Family Law Act 1975 (Cth) (“the Act”).
Section 112AP of the Act states as follows:
Contempt
(1)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.
(1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5) Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6) The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7) Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
(8) To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.
(9) In this section:
"order under this Act " means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
In Bande & Cade [2011] FamCAFC 93, the Full Court of the Family Court of Australia (Coleman, Ainslie-Wallace and Johnston JJ) stated:
“The standard of proof in s 112AP applications is that the charge must be proved beyond reasonable doubt. In Tate & Tate (2002) FLC 93-107 the Full Court stated as a matter of principle (at paragraph 63) that: “In our view, having regard to Witham v Holloway … the standard of proof to be applied in proceedings in the Family Court seeking that the respondent be dealt with for contempt of court is proof beyond reasonable doubt, unless the Evidence Act provides to the contrary.”
Section 141 of the Evidence Act 1995 (Cth) states:
(1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.
(2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.
The Court, therefore, accepts that the onus of proof is on the wife who must establish all elements of the contempt charge beyond reasonable doubt (as that standard is defined in Briginshaw & Briginshaw (1938) 60 CLR 336).
Mr Campton SC also relied upon the reasons for decision in an ex tempore (unpublished) judgment of O’Ryan J (11 April 2003) in Bentivoglio (forwarded to the Court and to the husband’s legal representatives by Mr Campton SC on 17 November 2016 and as referred to by him in his submissions made on that day). The Court accepts His Honour’s distillation therein that the obligation to use a document for the purposes of the proceedings before the Court extends to all information and knowledge acquired from the documents so discovered or produced as part of the compulsory processes of the Court.
The Court has had regard to the applicable rules of the Court for the practice and procedure as to charging with contempt and the hearing of that charge or charges.
Pursuant to Part 19.02 of the Federal Circuit Rules 2001, if it is alleged that a person has committed a contempt of the Court (other than contempt in the face or hearing of the Court) an application may be made to the Court for that person to be dealt with for the contempt. That application must be in the approved form, state the contempt alleged and be supported by an affidavit setting out the facts relied upon.
Evidence
The wife relies upon her affidavit sworn on 17 May 2016 and filed on that date. The wife also relied on an affidavit of Ms G (“Ms G”) affirmed on 28 June 2016, being the wife's treating psychologist. Ms G had prepared a report which appears as an annexure to her said affidavit.
The husband conceded that the contempt application had been duly served on him.
When the hearing commenced, the Court’s obligation was to inform the husband of the allegations, the subject of the contempt application. In dialogue with Mr Campton SC, it became apparent from the wording of the 3 charges the subject of the contempt application, that there was some duplication and uncertainty in the wording of charge 1. Mr Campton SC, accordingly, withdrew charge 1. That charge is, therefore, withdrawn and will be, otherwise, by consent, dismissed.
The matter then proceeded in respect of what was then identified as charges 2 and 3, being those the subject of paragraphs 2 and 3 of the said contempt application filed on 19 June 2015. Accordingly, the husband was informed of the allegations in the following terms:
Charge 2:On 19 May 2015, he deliberately disclosed the contents of documents obtained by way of discovery and the issue of a subpoena in these proceedings to another person without the permission of the Court.
Charge 3:On 19 May 2015, he deliberately provided copies of the contents of documents obtained by way of discovery and the issue of a subpoena in these proceedings to another person without the permission of the Court.
The husband was asked to state whether he admitted or denied the allegations the subject of the above identified charges. Mr Timmins responded that the husband denied the allegations and, otherwise, entered a plea of not guilty to both charges.
The Court then ruled on admissibility, after objections were taken, to the wife’s affidavit. Given that the Court at this stage of the hearing was dealing with the issue as to whether the contempt charges had been established, no reliance was placed on the wife’s affidavit in terms of paragraphs 13, 14, 15, 16, 17 and 18 which were not read. Mr Campton SC conceded that those paragraphs went to the issue of any punishment to be imposed, if the Court found that the contempt had, in fact, been established.
The wife deposed to she and the husband commencing cohabitation in 1991, marrying on (omitted) 2000 and separating on a final basis on 8 October 2013. A divorce order was made on 21 April 2015 which took effect on 22 May 2015. The wife filed an Initiating Application for property orders in this Court on 30 May 2014, with the husband filing his response on 20 August 2014.
The matter was listed for final hearing scheduled for 11, 12 and 13 May 2015. Trial directions were made for the preparation of affidavit material. On the first morning of the hearing, Mr Campton SC appeared for the wife and Mr Kearney SC appeared for the husband. The proceedings were resolved by agreement between the parties and final orders made in terms of a minute of consent order document signed by the parties on the first day of the hearing (“the final orders”).
The wife says that on (omitted) 1998, she had commenced employment with her employer, (employer omitted) and that she had remained employed there until about (omitted) 2015. The wife, further, says that her employer had a (country omitted) entity as its head office known as “(employer omitted)” and that the Australian managing director of her Australian employer, since the time that she commenced work there, was a Mr T (“Mr T”).
The wife says that on 18 March 2015, the husband had had issued from the Court a subpoena for the production of documents directed to her employer, (employer omitted) requiring the production of documents on 1 April 2015. A true copy of that subpoena forms annexure “A” to the wife's affidavit. Relevantly, that subpoena records at paragraph 12 of the notes in respect of the subpoena document itself (set out at page 14 of the wife's affidavit) the following:
A person who inspects or copies a document produced in response to this subpoena must:
(a)Use the document for the purpose of the proceeding only, and
(b)Not disclose the contents of the document, or give a copy of it to any other person without the Court's permission.
That notation is a direct reflection of Rule 15A.12(2) of the Federal Circuit Court Rules2001 which provides that that Rule applies to a subpoena for production of documents.
The wife says that, approximately, 4 weeks after the final orders were made, Mr T provided her with a copy of a letter dated 19 May 2015, together with copies of documents enclosed with that letter, addressed to a Mr R and Mr G at (employer omitted), (country omitted), (“the letter”).
Annexure “B” to the wife's affidavit encloses a copy of the letter. Objection was taken to the receipt of the letter, but the Court received the same as a business record pursuant to s.69 of the Evidence Act1995 (Cth). The Court accepted that the document so provided was clearly a document which formed part of the record of the business of (employer omitted) where the records of a business are documents by which activities of the business are recorded, including business operations, internal communications and communications between the business and third parties. The Court notes that a document may be:
Kept in the course of or for the purposes of a business, even if it is for the personal use of a particular employee.
See Gordon & Ross (2006) NSWCA 157 at 38.
Relevantly, the letter appears to bear the signature of the husband. The wife gave evidence, in terms of paragraph 10 of her affidavit, that she recognised the signature of the husband on page 2 of the letter as she had observed him signing his name on occasions during their marriage and also recognised his mobile telephone number and email address on page 2 of the letter.
The wife was, relevantly, not cross-examined as to her assertion in paragraph 10 of her affidavit and the Court accepts her evidence in that regard.
The Court sets out the terms of the letter in full as follows:
(omitted),
19 May 2015
Mr R, Mr G
(employer omitted)(country omitted),
Dear Sirs,
The purpose of this letter is to inform you of the apparent misappropriation of funds from your Sydney office by my ex-wife Ms Zaber.
Numerous details of these misappropriations of funds came to my attention when I was going through paperwork and bank statements belonging to Ms Zaber during the course of my divorce proceedings. These were funds deposited by Ms Zaber into our joint bank account of which I was unaware of until recently.
My main concern is that I discovered a cheque made out to myself (by Ms Zaber and co-signed by another staff member) for the sum of $6,721.00. When my lawyers issued a subpoena to (employer omitted) to Mr T, we received purchase orders relating to the purchase of computers and equipment for (employer omitted).
My line of business for the last forty odd years has been the (employment omitted) industry. I have never had any dealings with selling computers or equipment for same. Enclosed [a] copies of the purchase orders which I, along with my lawyers, believe to be false. Why would I jeopardise myself and my companies for any [alledged] misdealings
I would like my name to be cleared of any dealings with (employer omitted) including any tax implications.
There are also significant discrepancies in Ms Zaber's salary in that she received a much higher salary than was actually declared on her PAYG W statements from (employer omitted), and subsequently declared by her in her 2010 income tax return. This scenario has been repeated over several years. She has also transferred into her bank account the sum of $11,721.52 on 8th April 2005, stating advance (copy enclosed). On 11th July 2006, $4,536.00 (advance) was deposited into Ms Zaber's bank account (copy enclosed). My lawyers and forensic accountants have voiced their concern with these dealings.
Ms Zaber's birth date on her PAYG W certificates state her birthdate as (omitted). On her drivers licence and passport her birthdate is (omitted). I am enclosing copies of emails from my lawyers to me regarding salaries and payments made.
In the email dated Thursday, 30th April 2015, in the sentence relating to transactions into (omitted)’s account, he is my son who has a disability.
The information detailed in the email dated Wednesday, 29th April 2015, and the abovementioned email, are self-explanatory (copies enclosed).
Enclosed are copies of three cheques in the name of Ms Zaber, these we received from your Sydney office. Why is Ms Zaber using her name as Ms Zaber when her legal surname is Zaber, and she goes under the surname of (omitted)-Zaber on her emails? Is this legal?
Also enclosed are copies of correspondence between my lawyers and Mr T of your Sydney office.
I very much look forward to your response to this letter and hope you are able to help me clear my name from all legal [ramifcations]. I have been advised to let you know of the contents of this correspondence, and also in the future this information will be forwarded to the Australian Taxation Office.
Should you wish to contact me, please phone my mobile (omitted), or email (omitted).
Yours faithfully,
Mr Zaber
Encls.
There follows some 37 pages of annexures to the wife’s affidavit. The wife deposes, in paragraph 11 of her said affidavit, that the documents attached as part of those annexures were all documents which had been produced in this Court in response to the subpoena to her employer, being (employer omitted), except for the following:
a)The email from York Law, the husband’s lawyers, dated 29 April 2015, which stated that the schedule referred to in the email was prepared from an inspection of documents produced by her employer in response to the said subpoena.
b)The bank statements from (omitted) Bank account number (omitted), in the wife's name, which were documents which were in her possession prior to the date of separation, and were documents which were removed and retained by the husband to be used in the property proceedings.
c)The emails dated 13 and 18 April from York Law to Mr T as they were emails from the husband’s lawyers to her employer in relation to the payment of conduct money relating to compliance by her employer with the subpoena.
d)The last email from York Law to Mr T dated 29 April 2015 which related to further documents required by the husband’s lawyers which were produced to the Court by her employer in response to the subpoena.
The wife also deposed in paragraph 12 that during the course of the proceedings in the Court, and on about 5 January 2015, prior to the final orders being made on 11 May 2015, the husband had said to her, amongst other things, words to the following effect:
“You may get some money out of me but I would ensure that you end up with nothing at the end.”
The wife was not, relevantly, cross-examined about that conversation and the Court accepts her evidence in that regard.
Mr Timmins' initial cross-examination of the wife sought to raise issues as to her overall credit. As indicated to Mr Timmins, credit had to be relevant to disputed facts in issue. The husband did not challenge the wife over the veracity of the letter which she says was handed to her by Mr T on 11 June 2015. Relevantly, it was put to the wife as to whether it was her understanding that the husband had asserted the fact that she had been dishonest about disclosing her earnings from her employer. Mr Campton SC took objection to that question. The Court allowed the question, and the wife’s response was “Yes”.
It is relevant that that assumption of fact as put by Mr Timmins to the wife was in accordance with his client’s instructions. That is, the husband believed that the wife had been dishonest. That appeared to be the justification for him taking the step, which the Court accepts he did, namely, to forward the letter to the wife's employer at its (country omitted) head office, containing the documents and information therein referred to.
At the conclusion of Mr Timmins’ cross-examination of the wife, the Court, having heard the evidence in support of the contempt application, heard submissions from Mr Timmins as to whether a “prima facie” case had been established. Appropriately, Mr Timmins conceded that on the material such a prima facie case had been established. The Court so finds.
The Court, therefore, then dealt with the matter in terms of Rule 19.02(7) of the Federal Circuit Court Rules2001, having determined that there was such a prima facie case, invited the husband to state his defence to the allegation. Mr Timmins indicated that there would be no defensive material lead either by way of direct evidence from the husband or from any other evidence including by way of the tender of any documents. He then sought to submit that the Court could not find the contempt proved on the requisite standard of proof, namely “beyond reasonable doubt”.
The Court notes that the husband is entitled to exercise his privilege against self-incrimination; that is, his “right to silence”. The mere exercise of that right does not give rise to any inference of guilt. As Mr Timmins submitted, the Court has to be satisfied (notwithstanding any failure to provide an explanation by the husband) that the information provided in terms of the letter was a breach of Part 15A.12 of the Federal Circuit Court Rules2001 in that documents had been included in that letter - used not for the purposes of the proceedings and by way of disclosing the contents of such documents to another person, without the Court’s permission.
It is an agreed fact that no permission from the Court had been obtained to the release of the documents and the distribution of the information contained therein. The Court accepts that the documents produced by (employer omitted) in response to the subpoena issued on 18 March 2015 were used by the husband in forwarding the same to the two individuals, namely, Mr R and Mr G, care of (employer omitted) in (country omitted). No issue was taken as to the forwarding of such documents to individuals outside the jurisdiction of this Court.
Nevertheless those persons have then provided the said documents and the Court would accept that they were under an obligation to do so, to Mr T, as the Australian managing director of the wife’s employer, being (employer omitted), the entity the subject of the subpoena itself. To the effect that the documents were so published to other persons, and those documents were obtained in response to the subpoena, the Court is of the view that the husband has used the documents so produced not for the purpose of the proceedings but for other purposes and he did so by disclosing the contents of the documents and/or providing a copy of those documents, without the Court’s permission.
The documents so produced are set out at pages 19, 20, 21, 24, 25, 26 29, 30, 31 and 32 of the wife’s affidavit. The Court, further, accepts, given that the husband provided a copy of the relevant subpoena as an attachment to the letter, that he was well aware of the obligations on him not to use the documents so inspected or copied as part of the subpoena process for purposes other than the proceedings and, further, that he was aware that there was an obligation on him not to disclose the contents of the documents or give a copy of them to any other person, without the Court’s permission. It was also clear that the documents were not then being used by the husband for the purposes of the proceedings, as the proceedings had concluded by that time.
The Court is of the view that the husband intended to use the documents for the purposes of harming the wife, in terms of her employment or to effect some other adjustment in terms of his own tax affairs, to “help him” to clear his name from all legal ramifications, as he asserted in the letter. He further sought to raise issues with the wife’s employer via its (country omitted) head office to the effect that she, as an (employee omitted) in the employ of the Australian company at its Sydney office, had approved fraudulent purchase orders to receive payments of money into her and the husband’s account.
As Mr Campton SC submitted, if the husband had been so concerned as to those matters, appropriate leave could have been sought from the Court at the time that the final orders were made. The Court notes, in that regard that from Exhibit “B”, no such application was made. Further, in terms of Exhibit “A”, the Court notes that the documents, not the subject of the subpoena, but part of the documents referred to by the husband in terms of the letter appear to be documents which the wife has provided in accordance with Order 4 made on the 26 August 2014, requiring the parties to comply with Rule 24.04 of the Federal Circuit Court Rules2001 by serving on each other copies of the documents listed in that rule 14 days prior to the appointed conciliation conference.
Rule 24.04 of the Federal Circuit Court Rules2001 stipulates the documents so served as copies of the parties’ three most recent taxation returns, three most recent taxation assessments, completed superannuation information, copies of the last four Business Activity Statements for any party with an Australian Business Number, and copies of three most recent financial statements for any partnership trust or company in which the party has an interest (excluding a public company).
The documents which the Court accepts were provided by the husband as part of the letter, include calculations carried out by his solicitors from an examination of the documents produced to the Court, including schedules as to the wife’s monthly salary and bank deposit details. The Court accepts that those documents and the information contained therein could only have come (without any further explanation and the husband has not sought to adduce any evidence to the contrary either from himself, his solicitor, any other person or by way of the tender of any other documents) as asserted by the wife from the husband’s inspection of the documents produced either under the subpoena or pursuant to the above orders made on 26 August 2014. The Court is satisfied as to those matters beyond reasonable doubt.
Mr Timmins’ submissions, including his cross-examination of the wife, appeared predicated on the basis that his client, the husband, was incensed by an asserted fraud in that, he believed that, the wife had not acted honestly regarding her income and tax returns and that the only way he could expose this was by reference of those matters to her employer. The Court is, therefore, satisfied that the husband is guilty of a contempt of Court under s.112AP(1)(a) of the Act. To the extent that it is necessary the Court is also satisfied that the husband is guilty of a contempt under s.112AP(1)(b) of the Act in that the husband’s conduct in not approaching the Court for permission did amount to a flagrant challenge to the authority of the Court, in terms that a subpoena to produce documents has the force and effect of an order of the Court directed to a third party and that third party is entitled under the relevant rules of the Court to have a degree of confidence that documents so produced pursuant to the Court’s authority will not be used for purposes other than the proceedings and not distributed or given to other persons, without the Court’s permission. There is a need to ensure that the Court’s authority in this regard is maintained to ensure that there is public confidence in the subpoena production regime, otherwise, any loss in that confidence may, potentially, impact on the proper administration of justice.
Conclusion
Accordingly, the Court is of the view that charges 2 and 3 have been made out as to the requisite standard of proof, namely beyond reasonable doubt, to the effect that the Court finds that on or about 19 May 2015 the husband, deliberately, disclosed the contents of documents (the subject of the letter) where such documents had been obtained by way of discovery and the issue of a subpoena in these proceedings to another person, without the permission of the Court and provided copies of the contents of such documents to persons, again without the permission of the Court. Declarations will be made to that effect.
The Court accepts the submission of Mr Campton SC that the matter should now be set down for determination of any penalty.
The Court will direct the husband file and serve any affidavit, if he wishes to, in respect of the issue of penalty.
Further, the Court gives leave to the wife, as sought by her, to have issued a subpoena to the husband’s legal practitioners to produce documents, subject to any claim for legal professional privilege which can be determined at a later point in time.
The matter will go over for further mention on 7 March 2017 at 9.15am.
The matter will, thereafter, be listed to a further date when the Court can hear submissions on the issue of penalty. The Court notes that while Mr Campton SC relies on the decision referred to in paragraph 10 above, His Honour Justice O’Ryan noted that while it was submitted before him that a misuse of process or abuse of process of the Court would probably constitute tortious conduct resulting in a liability for damages against the perpetrator, it was not necessary for him to express any opinion in relation to that submission.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 13 January 2017
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