Zhong & Yao (No 3)
[2024] FedCFamC1F 188
•18 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhong & Yao (No 3) [2024] FedCFamC1F 188
File number: SYC 1477 of 2019 Judgment of: SCHONELL J Date of judgment: 18 March 2024 Catchwords: FAMILY LAW – CONTEMPT – Where the applicant did not serve the respondent in accordance with the Rules – Where the Rules require personal service – Where the Court is not satisfied that the applicant’s contentions support a finding of contempt – Where the conduct complained of was not exceptional or striking – Where the respondent was not in Court when the order she allegedly breached was made – Contempt application dismissed.
FAMILY LAW –INTERIM RELIEF – Where the applicant sought interim relief during the final hearing – Where the relief sought is subsumed by the final relief – Where the interim application is of no utility – Interim application dismissed.
FAMILY LAW –NON-COMPLIANCE – Where both parties sought final orders – Where both parties failed to comply with directions – Compliance with directions is not optional – Applications for final relief dismissed.
Legislation: Family Law Act 1975 (Cth), ss 70NEC(5), 102NA, 112AP
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Ganem & Ganem (No. 2) [2013] FamCA 257
In the marriage of Ibbotson, LG & Wincen, MD (1994) FLC 92-496
Zhong & Yao (No 2) [2023] FedCFamC1F 1060
Zhong & Yao [2023] FedCFamC1F 626
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 18 March 2024 Place: Sydney Counsel for the Applicant: Mr Friedlander Solicitor for the Applicant: Fletch Law The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Edwards Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
SYC 1477 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZHONG
Applicant
AND: MS YAO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
18 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 7 August 2023 is dismissed.
2.The Application in a Proceeding filed 6 December 2023 is dismissed.
3.The Application – Contempt filed 24 November 2023 is dismissed.
4.The Initiating Application filed 11 March 2024 is dismissed.
5.The Amended Response filed 3 December 2021 is dismissed.
6.Leave is granted to the Independent Children’s Lawyer to make an oral application for costs in the sum of $8,050, with such sum to be shared equally between the parties and to be paid within 28 days.
7.The Independent Children’s Lawyer is to advise the parties in writing, within 7 days, as to the basis upon which the sum is calculated, together with submissions of not more than 5 pages in duration as to why an order should be made.
8.The applicant and respondent are to each, within a further 7 days, file in reply written submissions as to costs.
9.Judgement as to costs is reserved.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings between the applicant father (“applicant”) and the respondent mother (“respondent”) in relation to two children aged 11 and nine years. At interviews with a Court Child Expert in February 2024, the father advised that he sought orders that the children live with him and he have sole parental responsibility. He advised the Court Child Expert that he suspects that the children are not his biological children. The parties have been litigating about parenting and financial matters since 2019.
On 27 October 2023 the Court made Orders pursuant to s 102NA of the Family Law Act 1975 (Cth) (“Act”). Despite these Orders, the mother appeared this morning unrepresented. She sought that the Court make orders for sole parental responsibility in her favour. When asked whether she sought an adjournment she said “No”. The mother says she has been unable to find legal representation. I find that an extraordinary proposition, given she has now had nearly six months in which to do so.
On 1 December 2023 the Court made a series of directions listing all extant applications for hearing in the Rolling List conducted by the Court, to commence on 18 March 2024. The directions included that on or before 19 January 2024, the applicant was to file and serve an Amended Initiating Application setting out with particularity the precise final orders he sought. The respondent was to file and serve an Amended Response by 2 February 2024 setting out with particularity the precise final orders she sought. Neither party complied with that direction. The directions also required that on or before 23 February 2024 each of the parties were to file and serve a single consolidated trial affidavit relevant to their case. Neither party complied with that direction. The parties were also directed to file, 14 days prior to the trial, a Case Outline document. Neither party complied with that direction.
On 11 March 2024 the applicant filed an Initiating Application, and at 8.15 pm on the Friday before the final hearing served the mother with an affidavit.
The extant applications that are before the Court are as follows:
(1)The applicant’s Initiating Application filed 11 March 2024 in which he seeks final parenting orders, including sole parental responsibility and that the children live with him and spend time with the respondent each Sunday. The Initiating Application also sought financial orders, but that aspect of the proceedings has been dealt with in judgments delivered by me in Zhong & Yao (No 2) [2023] FedCFamC1F 1060 and by Justice Altobelli in Zhong & Yao [2023] FedCFamC1F 626.
(2)An Application in a Proceeding filed 7 August 2023, which sought interim parenting orders. In circumstances where the matter is listed for final determination, that relief is subsumed by the final relief. The application is consequently of no utility and accordingly, I propose to dismiss that application.
(3)An Application – Contempt filed 24 November 2023, supported by an affidavit sworn 18 November 2023.
(4)An Application in a Proceeding filed 6 December 2023. That particular application seeks no orders, but merely recites that various applications were served on the respondent on 1 December 2023. The applicant’s counsel indicated that that application was not pressed and consequently it will be dismissed.
(5)The respondent’s Amended Response filed 3 December 2021.
Accordingly, in light of the applications that will be dismissed, there remains for determination the Application – Contempt filed 24 November 2024, the Initiating Application, and Response seeking final parenting orders. In circumstances where it is contended the respondent is in contempt, it is appropriate that application be dealt with first.
APPLICATION- CONTEMPT
The Application – Contempt asserts the respondent failed to comply with various orders made on 4 October 2023, which required her to complete a paternity testing kit, within seven days contact F Family Services, and to enter into a bond without surety but with security. The applicant contends that the respondent failed to comply with each of these orders.
An application under s 112AP involving as it does “a flagrant challenge to the authority of the court” is a most serious application (Family Law Act 1975 (Cth), s 112AP(1)(b)).
The words “flagrant challenge” were the subject of comment by the Full Court in In the marriage of Ibbotson, LG & Wincen, MD (1994) FLC 92-496, wherein 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 provide 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 as follows:
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 (Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). 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 them and is entitled to, and is required to, be served with all documents said to be relied upon by the applicant. The Rules require the documents be served personally.
The application has not been served on the respondent in accordance with the Rules. The applicant contends the respondent was served by email.
The Rules require service personally. The applicant has not served the application. The applicant contends there are difficulties in service and so he proposed to serve by email. The applicant has not made any application to the Court to proceed by way of substituted service.
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. I am not satisfied that the application has been properly served. In my view, service is a fundamental requirement in an application under s 112AP.
I further note that the Application – Contempt does not comply with the Rules in that it does not attach the relevant order. The affidavit does not set out the facts relied upon. It merely asserts various matters.
I note in passing, given that I intend to dismiss the application for failure to comply with the Rules by way of service, that the application faces more fundamental problems. I am not satisfied that the contentions that are advanced support the filing of an Application – Contempt. A flagrant challenge to the authority of the Court is an essential element to the charge that must be established beyond a reasonable doubt. The conduct complained of must be of an exceptional and striking nature, distinguishing it from contravention of orders that are intended to be dealt with under other sections of the Act. I am not satisfied, notwithstanding the other findings averted to, that the evidence, even at its highest, would, if accepted, meet the descriptor of exceptional or striking.
Another difficulty is that I am told by the applicant’s counsel that the parties were not in Court when the orders were made. Section 70NEC (5) of the Act is to the following effect:
(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii)having entered into the bond--fails to act in accordance with the bond.
In circumstances where the respondent was not before the Court at the time of the making of the order, the applicant would need to satisfy the Court that the requirements of the section have been satisfied.
The applicant and the respondent have failed to comply with every direction made on 1 December 2023. Compliance with directions is not optional. The directions made on 1 December 2023 contain the following provisions:
Non-compliance
8.The compliance with these directions is not optional. The consequences of non-compliance can include orders for costs, including on an indemnity basis.
9.In the event that a party does not comply with these directions the court will give consideration to proceeding with the matter on the basis of evidence filed to the date of non-compliance.
10.In the event that any party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated including non-compliance, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
Parties who fail to comply do so at their peril. There is simply no evidence beyond what is contained in the Family Report that would found the making of the orders the parties seek (Family Report prepared by Court Child Expert, dated 7 March 2024). In view of the parties’ failure to comply, I intend to dismiss both of their applications for final relief.
I will make the following Orders.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 21 March 2024
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