Akayev & Akayev
[2022] FedCFamC2F 112
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Akayev & Akayev [2022] FedCFamC2F 112
File number(s): CRC 349 of 2021 Judgment of: JUDGE DICKSON Date of judgment: 10 February 2022 Catchwords: FAMILY LAW – Contravention – father alleges mother contravened final orders without reasonable excuse – five counts of alleged contraventions – where at Trial at the conclusion of the applicant’s case the respondent made an oral application for no case to answer – where the applicant submits there is a case to answer – test for no case to answer – whether or not there is currently a prima facie case – where at this present juncture the Court does not need to be satisfied beyond a reasonable doubt – where the Court needs to consider the present state of the evidence at the conclusion of the applicant’s case and if no further evidence is called whether the Court would find for the applicant – where on the current state of the evidence counts three and four should be dismissed – where there is a case to answer on counts one, two and five. Cases cited: Patrick v Capital Finance Corporation and Ors V637 of 2001 Division: Division 2 Family Law Number of paragraphs: 63 Date of hearing: 27 January 2022 Place: Adelaide Counsel for the Applicant: Mr Priestley Solicitor for the Applicant: MBT Lawyers Counsel for the Respondent: Mr O’Brien Solicitor for the Respondent: Bryant McKinnon Lawyers ORDERS
CRC 349 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR AKAYEV
Applicant
AND: MS AKAYEV
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
10 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Counts 3 and 4 of the father’s Amended Contravention Application filed 11 January 2022 be dismissed.
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 Akayev & Akayev has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
This Trial concerns two children X born in 2005 (‘X’) and Y born in 2008 (‘Y’) (collectively ‘the children’). X is now 16 years of age and Y is almost 14 years of age. The parties have one further child Ms B born in 2003 (‘Ms B’). Whilst Ms B was a child pursuant to orders made on 24 May 2019, she has now reached the age of majority.
Final parenting orders were made by consent between the parties on 24 May 2019.
On 27 August 2021, the father filed an Application for Contravention of Child Order. The said application was amended by way of an Amended Application for Contravention of Child Order filed on 11 January 2022 (‘the Amended Application’).
The Trial commenced before me on 27 January 2022. At the conclusion of the father’s evidence, the mother’s counsel Mr O’Brien made submissions on a “no case to answer application” in relation to Counts 1 to 5 inclusive of the said Amended Application.
These Reasons address the oral application for no case to answer made by the mother’s counsel.
BACKGROUND
The father is the applicant. He was born in 1969 and is currently 51 years of age.
The respondent mother was born in 1976 and is currently 45 years of age.
The parties were married in 2004 and separated for the final time in January 2017.
On 24 May 2019, final orders for parenting were entered into by consent (‘the said order’). It is helpful to set out the full text of those orders here. The said order with respect to parenting provides as follows:
Children
1.That the mother have sole parental responsibility for the children Ms B born in 2003, X born in 2005 and Y born in 2008.
2.In relation to any decision the mother is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long-term welfare of any of the children, the mother is to undertake the following actions before making such decision:
a. The mother is to provide the father with no less than 14 days’ notice in writing of any such proposed decision; and
b. The mother is to consult with the father (by email or text communication in the first instance and thereafter, unless she elects to communicate by phone or in person) with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view and; should the relationship between the parents permit, make a genuine effort to reach agreement with the father about any such proposed decision; and
c. In the event that no agreement is reached between the father and mother, the mother shall make the final decision and within 14 days of so doing, provide the father with written confirmation of the decision (by email or text is sufficient).
3.That the children live with the mother.
4.That the children spend time with the father by way of agreement between the parents.
5.That the father is to write a letter to the three children advising amongst other things:
a. That he loves them;
b. That he misses them and wants to spend positive time with them;
c. That mum and dad have resolved all their differences between them by agreement between them;
d. That he engaged in some bad behaviour and it came from a place of hurt and he wishes he would have handled it better; and
e. That he is sorry for the things that he has done and said that caused them to be scared or worried or troubled.
6.That both parents do all acts and things necessary to make an appointment for the mother and the children to attend at C Contact Centre, City D.
7.That during the attendance at C Contact Centre, City D, the mother shall ensure that the father’s letter is read to the children and the mother will tell the children amongst other things:
a. The children should consider the contents of the letter favourably;
b. That the mother and father have resolved all their differences as agreed between them;
c. That their father loves and misses them;
d. That the mother wants the children to spend time with their father;
e. That the mother wants the children to have a meaningful relationship with their father;
f. That the mother doesn’t think that their dad will physically hurt them and that she thinks they will be safe;
g. That their father did not mean to hurt them in any way; and
h. Perhaps their father did some things wrong but so did she and no one is perfect.
8.That within two (2) weeks after the first appointment with C Contact Centre, that the parents are to book three (3) sessions with C Contact Centre on a fortnightly basis for a period of two (2) hours per visit to enable the children to spend time with the father in the presence and with the assistance of C Contact Centre.
9.In the event that the meeting between the father and the children is deemed by C Contact Centre to be unsafe, C Contact Centre is at liberty to terminate that particular session.
10.For the purpose of these orders, C Contact Centre is not engaged as a Family Counsellor in accordance with Section 10C of the Family Law Act 1975 (Cth) and that the sessions referred to herein are reportable.
11.That the parents are equally responsible for the costs of each attendance at C Contact Centre.
12.The eldest child, Ms B is not compelled to spend time with the father in accordance with these orders but is not restrained from attending upon any time with the father in accordance with these orders.
13.Each of the parents is restrained from addressing the other in rude and/or derogatory terms or from speaking disparagingly of the other in the presence or hearing of the children or from allowing any other person to speak in such terms in the presence of or hearing of the children.
14.That the mother is restrained from relocating the residence of the children until January 2021, however in the event that the children or any of them are spending time with the father regularly the mother is restrained from relocating the residence of the children without the written consent of the father or order of the Court.
15.Each parent is to notify the other, as soon as possible and in any event within 1 hour, of any serious injury or illness suffered by the children whilst with the parent including, but not limited to, any attendance at any hospital emergency department.
16.Further each parent is to authorise all and any of the children’s treating medical practitioners to provide information, upon request from the other parent, about any service provided in respect of any of the children.
17.Each parent is to provide to the other the names, addresses and telephone numbers of all medical professionals (other than those specifically named above) who treat the children or any of them and:
a. Authorise each of them in writing to provide copies of any test results, letters of referrals, reports and letters received from other medical professionals to the other parent;
b. Authorise them to discuss any aspect of the child’s or children’s health with the other parent and
c. Notify the other parent of any medication prescribed for the child or the children and shall do all acts and things to facilitate the other parent to administer the medication to the child or children.
18.Each of the parents is to sign all documents and do all things necessary to authorise the school at which each of the children may from time to time attend.
a. To furnish each parent with copies of all school reports, notices and advices concerning the children and any activity involving the children; and
b. To make available to each copies of any school photographs and /or the required forms to order such photographs.
19.That the mother shall facilitate and enable the children to communicate with the father upon any reasonable request of the children.
20.That the mother shall maintain a device including a mobile and/or tablet and/or facetime equipped device and make such device available to the children for the purpose of the father communicating with the children.
21.That, without admissions, the mother be and is hereby restrained from permitting the children from being in the company of Mr E unless supervised by an adult, other than solely a member of his family.[1]
[1] See final orders of Judge Smith dated 24 May 2019.
DOCUMENTS RELIED UPON
The father relies upon the following documents:
(1)Amended Application – Contravention, filed 11 January 2022;
(2)Father’s Affidavit, filed 27 August 2021;
(3)Outline of Case Document, filed 20 January 2022; and
(4)Documents provided pursuant to a subpoena to Medicare Services Australia filed 27 September 2021, marked Exhibit H1.
The mother has elected not to file an affidavit at this stage, as she is entitled to do. The mother relies on an Outline of Case Document filed on 21 January 2022.
ALLEGED CONTRAVENTIONS
Details of the alleged contraventions are as follows:
Contravention 1
It is alleged that between 1 September 2020 and 21 January 2021 the respondent, without reasonable excuse, failed to follow the process required by Orders 2(a),(b) and (c) prior to making a decision regarding the children’s long term welfare, namely to relocate the children from the City D area to an unknown location near Canberra.
Contravention 2
It is alleged that between November 2020 and 4 December 2020 that without reasonable excuse the respondent did not follow the process required by Orders 2(a)(b) and (c) in relation to providing to the applicant details of her proposed decision in regards to the children’s education and failed to consult with the applicant and make a genuine effort to give consideration to his views.
Contravention 3
It is alleged that between 1 September 2020 and 1 October 2020 the respondent, without reasonable excuse, relocated the residence of the children prior to January 2021 contrary to paragraph 14 of the said order.
Contravention 4
It is alleged that between 1 May 2021 and 27 August 2021 the respondent, without reasonable excuse, has failed to maintain a device and make the device available to the children for the purposes of the applicant communicating with the children contrary to paragraph 20 of the said order.
Contravention 5
It is alleged that between 14 September 2020 and 27 August 2021 the respondent, without reasonable excuse, has failed to provide the applicant with the name/s, address/es and telephone number/s of medical professional/s who treat the children contrary to paragraph 17 of the said order.
THE HEARING ON 27 JANUARY 2022
The father was represented by Mr Priestley of counsel.
The mother was represented by Mr O’Brien of counsel.
The hearing was conducted by way of Microsoft Teams.
At the commencement of the Trial, each of the charges were formally put to the mother. In response to each and every alleged contravention of the said Order, the mother denied breaching the said order.
The father was cross examined by Mr O’Brien. The mother is yet to be cross examined. Cross examination of the mother will take place when the Trial resumes on 3 March 2022, subject to my rulings in relation to the mother’s application of no case to answer.
NO CASE TO ANSWER SUBMISSIONS
(a) Counts 1 and 2 of the Amended Application
Counts 1 and 2 of the Amended Application allege breaches of paragraph 2 of the said Order. Paragraph 2 of the said Order provides that:
2. In relation to any decision the mother is required to make in relation to education, religious and cultural upbringing, health and any other decision impacting upon the long-term welfare of any of the children, the mother is to undertake the following actions before making such a decision:
a. The mother is to provide the father with no less than fourteen (14) days’ notice in writing of any such proposed decision; and
b. The mother is to consult with the father (by email or text communication in the first instance and thereafter, unless she elects to communicate by phone or in person (with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the father about any proposed decision; and
c. In the event that no agreement is reached between the mother and the father, the mother shall make the final decision within fourteen (14) days of so doing, provide the father with written confirmation of the decision (by email or text is sufficient).[2]
[2] Ibid at paragraph 2(a)-(c).
Mr O’Brien submitted that paragraph 2(a) of the said Order directed the mother to provide the father with no less than fourteen days’ notice of any proposed decision. It is submitted that the mother complied with paragraph 2(a) in her email to the father dated 19 November 2020.[3] Mr O’Brien submitted that the father was wrong to consider that the decision was to be made after consulting with him. It is submitted that the mother provided the requisite fourteen days’ notice in writing of any proposed decision and that she had sought to consult with the father and have regard to his view.
[3] See father’s Affidavit filed 27 August 2021 at Annexure I.
Mr O’Brien submitted that the father’s response in his email to the mother dated 21 November 2020 at Annexure I to the father’s affidavit filed 27 August 2021 simply responded by accusing her of breaching the orders and to inform the mother that he was seeking legal advice. It did not respond at all to the substantive matters raised in the mother’s email to him referred to in paragraph 24 herein.
It was submitted by Mr O’Brien that under cross examination, the father sought to “skirt around” answering questions about his failure to engage with the mother when she sought to consult with him by referring to “some unidentified set of breaches”. The Court was urged to disregard the husband’s evidence in that regard.
It is submitted by the mother that in those circumstances, she could do no more to give effect to the Orders. Mr O’Brien urges the Court to dismiss Counts 1 and 2 of the Amended Application.
Mr Priestley on behalf of the father submitted that the mother’s email to the father at Annexure I to the father’s affidavit demonstrates that the mother was informing the father of her decision that she had made in relation to the children’s schooling. Mr Priestley described this as a “flagrant breach” of paragraph 2(a) of the said order and that it showed a “disregard for the orders to be properly implemented”. Mr Priestley submitted that there had simply been “no discussion” in order to allow the father to consider the mother’s proposal. Mr Priestley described the mother’s conduct as a “serious breach”.
Mr Priestley contends that the mother’s Outline of Case document prepared is “instructive” in that it alleges that the mother provided “requisite notice to the husband”. Mr Priestley submitted that “notice” was not required pursuant to the order, rather the mother was to consult with the father. The father complains that rather than being consulted, he was told by the mother that the children would be moving to Canberra and told that he would be given information in relation to the children and their education (my emphasis added). The father considered that the decisions had been made without consultation.
The father’s email reply to the mother dated 21 November 2020 is unequivocal. In it the father states:
Ms Akayev,
You are clearly in breach of court orders.
I am currently seeking legal advice regarding your breach and the safety of our children.
I will get back to you when I have this advice.
I do not consent to the movement from BDC.
I emailed Bishop Druitt the below, as they required both parents’ signatures:[4]
[4] Ibid.
The mother is said to then respond to the father on 4 December 2020 by email. The mother informs the father that the children had attended interviews at F School in Town G on 22 November, namely three days after claiming that she was “incredibly unorganised” and couldn’t give him the requisite information.
The father alleges that the mother was in a position to give this information at an earlier date but failed to do so and that there was no attempt to discuss. It was submitted that the mother was being disingenuous by telling the father that she was disorganised and unable to give him the information as to the children’s schooling and yet three days later they had been interviewed and accepted into the new school at Town G.
(b) Count 3 of the Amended Application
Count 3 alleges that the mother without reasonable excuse relocated the residence of the children from City D prior to January 2021 as provided for in paragraph 14 of the said order.
Mr O’Brien submits that the said Application specifically alleges that “between 1 September 2020 and 1 October 2020” (emphasis added) the mother, without reasonable excuse, relocated the residence of the children prior to January 2021. Mr O’Brien submits that the orders permit the wife to change the residence of the children after January 2021 and not before. Mr O‘Brien contends that under cross examination, the father conceded that he was not aware if the mother had relocated before January 2021. It was submitted that this answer given by the husband is “fatal” to count 3 and it should therefore be dismissed.
Furthermore, it was submitted by Mr O’Brien that the words “residence of the children” is broader than simply referring to the children’s home. In the context of this case, the “residence of the children” was said to mean the locale of where the children resided and not specifically their home address. Mr O’Brien submitted that there could be “no other interpretation”.
On behalf of the father, Mr Priestley submitted that an inference can be drawn that the mother had moved the children’s residence when the father was informed by text from the eldest child Ms B just before Christmas 2020 that they “were staying with friends”.[5] The father then discovered by Google search that the mother’s home had been sold in September 2020. When challenged by the Court about the father’s own evidence as referred to in paragraph 34 herein, Mr Priestley valiantly submitted that “the evidence is not just what falls from my client’s mouth”. Based on the father’s affidavit, Mr Priestley submits that “an inference” can be drawn that the mother had moved and was therefore in breach of paragraph 14 of the said order.
[5] Ibid at [22].
(c) Count 4 of the Amended Application
Count 4 is the failure to maintain a device including a mobile and/or tablet and/or Facetime equipped device and to make such device available to the children for the purpose of the father communicating with the children pursuant to paragraph 20 of the said order.
Mr O’Brien submitted that the order ‘simply requires’ that the mother shall maintain a device and make such a device available to the children for the purposes of communicating with the children.
Mr O’Brien submitted that under cross examination the husband had conceded that he did not know if the children had such devices or not and assumed that the mother was interfering. Mr O’Brien submitted that “more evidence” is required to find a breach of paragraph 20 of the said Order, rather than “an assumption in circumstances where he says that he does not know whether the children had a device or not”. It was submitted on behalf of the mother that there needs to be “positive proof” that she has not complied with the order and failing that, the count should be dismissed.
Mr Priestley referred to the text exchange dated 10 May, being Annexure F to the father’s affidavit. Mr Priestley submitted that the mother advised the father that she had blocked his telephone number but he could still access the children via Ms B or via emails. It was submitted that the mother’s text is “against the spirit of the order”. The text exchange is as follows:
Mother: Good day Mr Akayev. Ms B has now blocked your number because she needs to concentrate on her University degrees, rather than your banter, it’s important for her future aspirations.
Father: How do I contact my children?
Mother:You just did.
Father:And where are my children living
Mother:With their mother J
Father:You need to maintain communication as part of the court pro
Do we need to go back to court ?
Mother:That we are [6]
[6] Ibid Annexure F.
The Court was urged to infer that the mother was insisting that the father communicate with the children through her and contrary to the spirit of the order.
Mr Priestley submitted that the clear intent of the Order was for there to be a device upon which the father could communicate with the children. It was submitted that to accept the mother’s interpretation would mean that “the children could have a device, stick it in a drawer and never turn it on”.
(d) Count 5 of the Amended Application
Count 5 alleges that between 14 September 2020 and 27 August 2021 the respondent without reasonable excuse failed to provide the applicant with details regard the children’s treating medical professionals.
It was submitted by Mr O’Brien that the father had given evidence that he was aware of the details of the medical professionals. The mother, through her counsel submitted that there were two ways of looking at the order namely:
(1)The children’s past treating medical professionals; or
(2)The children’s current treating medical professionals.
Mr O’Brien submitted that the mother argues that the order would refer to “each and every” treating medical professional, whereas the father argues that “treating” means medical professionals in the sense of those who are treating the children on a regular basis. It was asserted by the mother that because the father knew the names of past medical professionals, that is enough.
Mr Priestley referred to “Exhibit H1” and alleged that the children were seeing medical practitioners which the father did not know about, including a Dr H in Suburb J and a Dr K in Town G. The Court Order referred to “all medical practitioners” and it was contended that there was a requirement on the mother to provide details in relation to all treating medical professionals.
THE TEST FOR NO CASE TO ANSWER
Counsel are agreed that the test to be applied at this stage of the proceedings is whether or not there is a prima facie case. In other words, “whether the evidence as before the Court, taken at its highest and ignoring those things might diminish it, is capable of founding a conviction” as was submitted by Mr Priestely.
Mr Priestley submitted that that the Court therefore does not need to be satisfied at this juncture of the evidence “beyond a reasonable doubt”. This was conceded by Mr O’Brien in reply.
The question of the test to be applied in a no case to answer submission was addressed in the decision of Patrick v Capital Finance Corporation and Ors.[7] In that decision, Justice Tamberlin approached a no case submission on the basis that the relevant question for determination was:
Whether on the present state of the evidence at the close of the applicant’s case, if no further evidence is called, would I find for the applicant?[8]
[7] Patrick v Capital Finance Corporation and Ors V637 of 2001 (per Tamberlin J).
[8] Ibid [13].
In Patrick (supra) the Court observed that:
The no case submission is presented on the basis that there are critical gaps in the evidence adduced to this point so that the applicant’s case is not made out. In particular, the respondents submit that there is an evidentiary hiatus as to essential elements in each of the causes of action pleaded: see Residues Treatment & Trading Co Limited v Southern Resources Limited (1989) 52 SASR 54 at 68.[9]
In Residue Treatments, Perry J, at 68 considered that there are four categories of cases in which a no-case submission might be advanced. His Honour identified these categories as follows:
“1. Where no reference at all to the evidence is required.
2. Where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action.
3. Where it is argued that on a consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff’s point of view, the evidence could not support the causes of action pleaded.
4. The situation where it is contended that although there is some evidence to support the plaintiff’s claim, it is so weak and unreliable that it should be dismissed without calling upon the defendant (emphasis added)”.[10]
[9] Ibid [14].
[10] Ibid [15].
In this case, I intend to approach the test as identified in paragraph 49 herein, namely “whether on the present state of the evidence at the close of the applicant’s case, if no further evidence is called, would I find for the applicant”.[11]
EVALUATION
[11] Ibid [13].
Counts 1 and 2
At this juncture, I am satisfied on the state of the evidence thus far that the father has established a prima facie case. The specific wording of paragraph 2 of the said order is clear on its face. In relation to any of the topics set out in the said order the mother is to undertake the following actions before making such decision:
(a)Notice by the mother to the father no less than 14 days of any such proposed decision;
(b)The mother is to then consult with the father with regard to any proposed decision and make a genuine effort to give consideration to his expected view;
(c)If no agreement is reached, the mother is to make the final decision and then confirm that decision to the father.
To date, I am yet to be satisfied that:
(a)The email sent by the mother dated 19 November 2020 was a proposal rather than a statement of her already formed intentions;
(b)There was compliance with paragraph 2(b) of the said order to consult with the father. If following consultation no agreement was reached then the mother had the ability to make the final decision, but not before.
Accordingly, I decline to dismiss counts 1 and 2 of the Amended Application.
Count 3
I agree with Mr O’Brien’s submission.
Paragraph 14 of the said order supports the contention that the word “residence” in the order was referring to the children’s locale in the City D area rather than their specific home or dwelling. It simply wouldn’t make sense for the order to provide that the mother and children could not move to another house in the City D area if the father was spending time. Paragraph 14 of the said order was clearly designed to keep the children in the City D area if they had commenced spending time with their father following on from the reunification periods at C Contact Centre. It had nothing to do with the dwelling they occupied with the mother at the time the final orders were made.
There is no evidence provided by the father that the mother had relocated the children’s residence between 1 September 2020 and 1 October 2020 as alleged in the Amended Application. The father conceded as much in his evidence. Count 3 should be dismissed.
Count 4
The wording of the order was always going to make prosecution on this count difficult to prove. The father conceded under cross examination that he did not know if the children had devices or not and assumed that the mother was interfering.
An assumption is simply insufficient given the nature of these applications. I agree with the mother’s submissions that much more is required.
Count 4 will be dismissed.
Count 5
I reject the submissions of Mr O’Brien that this paragraph could be taken as referring to past medical practitioners. The clear intent of the order was to keep the father informed about the children’s medical treatment in circumstances where his actual time spending with the children is limited or non-existent. Exhibit H1 suggests that the children consulted medical practitioners in Suburb J and Town G. The father’s evidence is that he was unaware of who the practitioners are. A prima facie case is therefore established on the available evidence.
I decline to dismiss count 5 of the Amended Application.
CONCLUSION
For all of the above reasons, I make the orders as set out at the commencement of this judgment.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Dated: 14 February 2022
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