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Respondent Disputes Contempt Charges

Newett & Newett [2021] FedCFamC1F 11 (3 September 2021)

The applicant filed charges of contempt against the respondent.  The respondent disputes the same asserting that the applicant failed to distinctly state the specific charges against the respondent.  The Court, in rendering a decision, relied upon section 121 of the Family Law Act 1975.

Facts:

Ms Newett is a party in proceedings in the Family Court of Australia file number BRC2179/2018.  Mr Armstrong is a solicitor working at the firm AZ Lawyers.  AZ Lawyers are the lawyers on the record for Ms Newett’s former husband in the same mentioned Family Court proceedings.  On 9 February 2021, the applicant (Ms Newett) filed an Application for Contempt of Court naming Mr Armstrong as the respondent.  The Court ordered the Contempt application was listed for hearing requiring the personal appearances in Court by the parties and their legal representatives.  The order of 8 June 2021 contemplated personal appearances at the final hearing scheduled for 12 August 2021 but the pandemic intervened.

The mother lives in New South Wales and it would have been practically impossible for her to be present in Queensland for the hearing since the Queensland border is currently closed to residents of New South Wales.  The parties thus appeared at the hearing of the Contempt Application by electronic means using Microsoft Teams.  The respondent contends that many parts of the applicant’s affidavits filed 9 February 2021 and 11 August 2021 contain irrelevant material and are therefore inadmissible. 

The applicant requested that she be permitted to respond to each submission made by Mr McGregor (on behalf of the respondent).  The applicant wanted to interrupt Mr McGregor's submissions – after he had made each point – and the applicant wanted to be heard.  On 12 August 2021, the Court informed the respondent of the allegations made against him by the applicant.  The respondent, by his counsel, Mr McGregor, stated that he denied the allegations.

Issue:

Whether or not the application must be dismissed for failing to distinctly state the specific charges against the respondent. 

Applicable law:

Family Law Act 1975 (Cth) ss , 35, 112AP, 121 - provides that the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempt of the High Court.
 
Family Law Rules 2004 (Cth) r, 21.08 - set out the procedure to be adopted at the hearing of a Contempt Application in this Court.
 
Judiciary Act 1903(Cth) s, 24 - provides that the High Court shall have the same power to punish contempts of its power and authority as is possessed at the commencement of this Act by the Supreme Court of Judicature in England.
 
Best & Best[2016] FamCAFC 190 - confirmed that the applicant was required in the present case to distinctly state the specific charge or charges against the respondent.

Colina, Re; Ex parte Torney[1999] HCA 57(1999) 200 CLR 386Gleeson CJ and Gummow J stated that Section 21 of the Family Law Act creates the Family Court as a superior court of record, s 35 states that it has ‘‘the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court’’, and the relevant effect of s 112AP is to authorise provisions as to practice and procedure by the rules and to specify the forms of punishment.

Chang Hang Kiu v Piggott (1909) AC 312 - where it was sufficient in that jurisdiction at that time for the "gist of the accusation" to be made clear to the person charged.

Coward v Stapleton[1953] HCA 48(1953) 90 CLR 573 - the High Court of Australia  stated that it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him.

Whisprun Pty Ltd v Dixon [2003] HCA 48(2003) 200 ALR 447 at [62] - where it was held that it is useful to state that it is not incumbent upon a trial judge to refer to every piece of evidence relied upon by the losing party, or to traverse every argument advanced by them.

Hearn v Street[2008] HCA 36(2008) 235 CLR 125 - where the High Court was required to consider the notion of an "implied undertaking" said to apply to the use of documents generated or disclosed for the purpose of litigation. 

In the Marriage of Gibb [1978] FLC 90 – 405 - held that the applicant and the respondent have leave to file a further brief written submission on the relevance (if any) of the decision. 
 
Oates v Q & Anor[2010] FamCAFC 202 - where it was section 121(9)(b) which provided protection to the person disseminating the information.

Re Pollard [1868] UKLawRpPC 10(1868) LR 2 PC 106 - recognized the principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him.

Schwarzkopff; Fitzgibbon v Barker(1992) 16 Fam LR 539 - the Full Court stated that, "... Except in special circumstances, it is not desirable that this court should enforce by way of contempt or otherwise the obligations arising under section 121..."
 
Tate v Tate[2002] FamCA 356(2002) 29 Fam LR 195 - confirmed that the standard of proof to be applied in contempt proceedings is proof beyond reasonable doubt.

Analysis:

As to the details contained in the first box under the heading "Statement of Alleged Contempt," the applicant has not been sufficiently clear as to precisely when the respondent used the details of the Family Court case.  What has been provided are two possible dates (26 November 2020 and 1 February 2021).  The times stated are 9:00am to 3:00pm on both of those dates and the place is reasonably large – namely Suburb NN.  The applicant has not provided particulars as to what "details" of the relevant Family Court case the respondent used. 

As to the details contained in the second box, there were no particulars as to what alleged admission was made by the respondent and there are no particulars as to the alleged multiple acts of criminal activity against the applicant.  As to the details in the third box, there were no particulars as to when, where, or how the respondent had allegedly made the threats referred to in this part of the application; there are no particulars as to "the judgment".  In the fourth box, there were no particulars as to how it is that the respondent allegedly threatened to use "the judgment" referred to – to prevent the applicant's admission to the Law Society of Queensland upon her graduation.  In the fifth, there were no particulars as to the "false claims of misconduct" allegedly made by the respondent in relation to the applicant. 

Lastly, there were no particulars as to the "serious acts of criminal defamation against the applicant" and as to when, where, or how it is that the respondent criminally defamed the applicant. 

Conclusion:

The Court dismissed the applicant’s Application for Contempt filed 9 February 2021.  The respondent’s Application for Costs is adjourned to a date to be fixed.

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