Father Seeks to Charge Mother and Lawyer for Contempt
Gambetto & Farrelli (No 5) [2022] FedCFamC2F 918 (15 July 2022)
This case concerns a review of the Registrar’s decision filed by the father of a decision to reject the filing of previous applications for contempt listing the mother and the former Independent Children’s Lawyer as respondents. The Court, in resolving this dispute, relied upon the Family Law Act (Cth) as well as relevant jurisprudence.
Facts:
A defended interim hearing was conducted by a Senior Judicial Registrar on 28 September 2021. On that occasion, Orders and directions were made that provided for X to live with the mother and spend time with the father for periods during the day only until the father was living in accommodation that provided a separate bedroom for X and thereafter moving to overnight time each alternate weekend and day time each Thursday upon once such accommodation was secured.
Further Orders were made for X to spend time with each of the parties on special occasions together with injunctive Orders restraining certain conduct of the parties. The father filed an Application in a Proceeding on 22 December 2021 seeking an urgent listing of his interim application to in reality vary the interim Orders made less than 3 months previously so that X spend further time with the father than already ordered to “normalise his time to what it was before these proceedings were initiated.”
The father further sought orders that the commissioning of the Family Report be postponed for a period of 6 months and several injunctive orders restraining the mother’s behaviour. The mother sought that such application be dismissed together with an order for costs. On 1 February 2022, the father filed an Application in a Proceeding attaching the form Application – Contempt listing the mother as the respondent. This application was struck out by a Judicial Registrar on 9 February 2022.
On 4 February 2022, the father filed a further Application in a Proceeding seeking that it be listed for hearing urgently on 9 February 2022. It sought various orders including a restraint upon the mother from moving her residence to N Street, Suburb O or any other address further than 5km from her current place of residence together with an order that any of X’s extra-curricular activities that took place more than 5km from either of the parties’ residences be cancelled.
In the alternative the father sought orders that the mother pay various costs the father would incur by relocating his residence to within 1.5 km of N Street, Suburb O including the costs of breaking his current lease, the difference in rental costs for a comparable place of residence, the costs of relocating including for insurance for high-value items and his costs of losing 2 days work. It further sought to discharge Mr. L as the Independent Children’s Lawyer together with orders discharging the appointment of an Independent Children’s Lawyer in the proceedings.
The mother’s Response to such application sought to amend the changeover place for X and that a further injunctive order be made restraining the father from recording changeovers of X between the parties. On 9 February 2022 a Judicial Registrar listed both of the father’s interim applications for hearing before a Senior Judicial Registrar on 9 March 2022.
Directions were made that a Single Expert be appointed to enquire into and report upon issues relating to the welfare of X. The application to discharge Mr. L as the Independent Children’s Lawyer as sought in the Application in a Proceeding filed by the father on 4 February 2022 was dismissed.
On 2 March 2022, the father filed an Application for Review seeking to review Orders 4, 5, 6, 16, and 17 of the Orders made 9 February 2022. Such Orders sought to be reviewed related to the filing and serving of documents with respect to the interim hearing listed on 9 March 2022, the payment by the father of the Single Expert’s fees with each party to be responsible for one-half of the payment of the Single Expert’s attendance for the purposes of cross-examination at the final hearing.
His Honour in effect confirmed the Orders made by the Judicial Registrar that the father shall pay the Single Expert’s fees and that each party be responsible for one half of the payment of the Single Expert’s attendance for the purposes of cross-examination at the final hearing.
On 24 May 2022, the father attempted to file two Applications – Contempt. One such application recorded the mother as the respondent. The second such Application recorded the former Independent Children’s Lawyer, Mr. L, as the respondent. The Judicial Registrar had rejected the filing of the applications pursuant to r 2.24.
The father confirmed to the Court that he wished to press both Applications - Contempt pursuant to s 112AP of the Act, despite Mr. L no longer appearing as the Independent Children’s Lawyer in the matter.
Reading the material contained under this charge the father’s assertions include that the mother “has failed to comply in full with Order 13 (28 September 2021) despite multiple requests to do so.” Such Order requires that the mother shall provide to the father copies of all school reports, documents recording [X]’s Home Schooling registration, and (if any) medical or allied health reports or assessments about [X] for the past two years that are in her possession.
The mother filed an amended response on 18 May 2022 seeking orders for no time between X and the father. In her undertaking filed on 18 May 2022, the respondent claimed to be in compliance with all Orders and disclosure rules.
The father asserted that by amending the relief she seeks the mother has also shown contempt for the Court. He asserts that the mother has been contemptuous as she has not disclosed relevant information, filed a false undertaking, has not complied with Orders, and has provided completely inadequate disclosure.
Issue:
Whether or not the orders sought by the father should be granted.
Applicable law:
Family Law Act 1975 (Cth) s 112AP - provides that each party is directed to the clear and unequivocal codification in r 6.04 as to the use of documents obtained during the course of these proceedings, irrespective of whether documents have been obtained by way of disclosure or Subpoena. Contravening such a rule is potentially a contempt.
Analysis:
The specific charge against Mr. L the father wishes to press requires a close and careful reading of the document. It asserts a continuing breach of Orders made on 9 February 2022. The father submitted to the Court that Mr. L has shown a flagrant disregard for the Orders of the Court, has failed to uphold the standards of the Court, has delayed proceedings, and made a false undertaking to the Court with respect to the hearing on 25 May 2022. The father’s complaint relates to the method in which the proposed Single Expert was obtained and the Single Expert subsequently chosen by Mr. L.
The Application-Contempt listing the mother as the respondent seeks that the mother’s legal representative be dealt with for contempt in circumstances where she is not listed as a respondent. The Application – Contempt listing Mr. L as the respondent relates to Orders that were procedural in nature.
The father must be able to identify by way of each charge of contempt each of its requisite elements. Both applications filed by the father contain a litany of complaints. There are a number of allegations contained in both applications that are not capable, as a matter of substantive and procedural fairness, of being identified and understood by the respondent within the serious confines of s 112AP of the Act.
It is not possible to articulate a charge of contempt on the material contained within either of the applications that involves a flagrant disregard or challenge to the Court. On their face both documents appear to be an abuse of process. Reading the page and a half of typed material that purports to detail what Mr. L did or did not do that he alleges amounts to a contempt of Court, it appears that the father is asserting that Mr. L did not comply with Orders 12, 13, 14 and 15 made on 9 February 2022.
Conclusion:
Orders 1, 2 and 6 made by the Judicial Registrar on 13 April 2022 are discharged. Leave is granted to the parties and the Independent Children’s Lawyer to inspect all material produced under subpoena by Ms. B, Psychologist.
The Notice of Objection – Subpoena to Objection to Ms. B, Psychologist filed by the Father on 9 March 2022 is dismissed. The Application for Review filed by the Mother on 9 May 2022 is otherwise dismissed. The Application for Review filed by the Father on 10 May 2022 is dismissed and the decision of the Judicial Registrar on 3 May 2022 to refuse for filing Subpoena to Produce Documents to the following is upheld: (a) Mr. C, as responsible officer at D Pty Ltd (“the D Pty Ltd Subpoena”); (b) Mr. E as CEO at F Pty Ltd (“the F Pty Ltd Subpoena”); (c) Mr. G in personal capacity and as responsible office at Company H, Company J and his family office (“the Mr G Subpoena”); (d) Ms Farrelli (the respondent mother); and (e) Ms K. Leave is granted to the Father to file Subpoena to Produce Documents to the NSW Education Standards Authority.
The Application for Review filed by the Father on 23 May 2022 is otherwise dismissed. The Application for Review filed by the Father on 15 June 2022 is dismissed and the decision of the Judicial Registrar on 26 May 2022 to reject for filing Application-Contempt listing the Mother as the Respondent and Application.
The contempt listing the former Independent Children’s Lawyer, Mr. L, as the Respondent is upheld. In the event the Mother seeks costs in relation to this Judgment, then within 7 days she is to file and serve a Minute of Order sought, written submissions of no more than 2 pages, and an updating Financial Statement if required.
A Responding Minute of Order sought, written submissions of no longer than 2 pages, and an updating Financial Statement if required is to be filed by the Father within 14 days. Any costs determination will be dealt with in Chambers on 3 August 2022 with no appearances required by the parties.
