Cage and Cage & Ors (No 3)

[2009] FamCA 1349

FAMILY COURT OF AUSTRALIA

CAGE & CAGE AND ORS (NO. 3) [2009] FamCA 1349

FAMILY LAW – CONTEMPT – Contravention of Court Order – whether the maternal grandfather attended the children’s school contrary to orders of the Court – whether the mother enticed the children to leave early from time with the father contrary to orders of the Court – whether the maternal grandmother permitted the children to live at her home contrary to orders of the Court.

FAMILY LAW – CONTRAVENTION – Contravention of Court Order – whether the mother without reasonable excuse failed to make the children available for time with the father contrary to orders of the Court – whether the mother permitted the children to continue to reside with the maternal grandparents for more than 12 months after the date of the orders contrary to orders of the Court

Family Law Act 1975 (Cth) ss 35, 69ZM, 69ZT, 70NAC, 70NAE, 70NAF, 70NFA & 112AP
Evidence Act 1995 (Cth) s 141

LGM & CAM (2006) FLC 93-267
DAI and DAA (2005) FLC 93-215
Tate and Tate (2002) FLC 93-107
Tate and Tate (No 3) (2003) FLC 93-138
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577
Ibbotson and Wincen (1994) FLC 92-496
Johnson and Page (2007) FLC 93-344

APPLICANT: Mr Cage

FIRST RESPONDENT: Ms Cage

SECOND RESPONDENTS: Mrs and Mr F

INDEPENDENT CHILDREN’S LAWYER: N/A

FILE NUMBER: NCC 1991 of 2007

DATE DELIVERED: 18 March 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Flohm J

HEARING DATE: 18 March 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE 1^ST RESPONDENT: Ms Garrick

SOLICITOR FOR THE 2^ND RESPONDENTS: Mr Unwin

Orders

1. That the Application by the father filed on 21 January 2008 alleging contravention by the mother of orders made on 23 July 2007 in the Federal Magistrates Court is dismissed.

2. That the Application by the father filed on 21 January 2008 alleging contravention by the mother of orders made on 7 March 2006 in the Family Court is dismissed.

3. That the Application by the father filed on 26 September 2008 alleging contempt by Mr F of orders made in the Family Court on 23 July 2008 being withdrawn is dismissed.

4. That the Application filed by the father on 30 December 2008 alleging contempt by the mother of orders made in the Family Court on 23 July 2008 and 30 September 2008 is dismissed.

5. That the Application filed by the father on 30 December 2008 alleging contempt by Mrs F of orders made in the Family Court on 23 July 2008 and 30 September 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cage & Cage and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC1991 of 2007

MR CAGE

Applicant

And

MS CAGE

1st Respondent

And

MR AND MRS F

2nd Respondents

REASONS FOR JUDGMENT

1. By Application filed 21 January 2008 the father, Mr Cage, alleged that the mother, Ms Cage, had contravened orders of the Federal Magistrates Court in the following manner:

   (a)That contrary to paragraph 5(d) of the orders made in the Federal Magistrates Court on 23 July 2007 the mother, without reasonable excuse, did not deliver [M] born … May 1996 and [C] born … February 2001 (“the children”) to the father at the following times on the following dates:

   (i)At 3.15pm on 30 November 2007.

   (ii)At 3.15pm on 14 December 2007.

   (iii)           At 5pm on 11 January 2008.

2. By Application filed 21 January 2008 the father alleged that the mother contravened orders of the Family Court in the following manner:

   (a)That contrary to paragraph 4 of the orders of the Family Court made on 7 March 2006 the mother and the children continued to reside with the maternal grandparents for more than 12 months after the date of the orders.

3. By Application filed 26 September 2008 the father sought that the maternal grandfather, Mr F, be punished for contempt of court, alleging that:

   (a)In breach of paragraph 9 of the Family Court orders dated 23 July 2008 [the maternal grandfather] attended a concert at [L] Primary School on Thursday 11 September 2008 at 11.30am.

4. By Application filed on 30 December 2008 the father sought that the mother be punished for contempt of court alleging that:

   (a)In breach of paragraph 2 of the Family Court orders dated 23 July 2008 and in breach of paragraph 2 of the Family Court orders dated 30 September 2008 the mother, at 5.45pm on 27 October 2008 at [H Street, L], enticed the children to leave [R Street, L] and has facilitated and permitted the children to live with the mother and the maternal grandparents.

5. By Application filed on 30 December 2008 the father sought that the maternal grandmother, Mrs F, be punished for contempt of court, alleging that:

   (a)In breach of paragraph 2 of the Family Court orders dated 23 July 2008 and paragraph 2 of the Family Court orders dated 30 September 2008 the grandmother, at 5.45pm on 27 October 2008 at [H Street, L], enticed the children to leave their home and has facilitated and permitted the children to live at her home.

6. The two contravention applications and the three contempt applications were heard together.

7. The hearing commenced on 12 February 2009.  At the commencement of the hearing I dismissed the contravention allegations set out in paragraph 2 above being satisfied that an Application for Contravention filed on 26 June 2007 and dismissed by Federal Magistrate Mead on 23 July 2007 dealt with the same alleged contravention made by the father in his application before me filed 21 January 2008.  It was noted that the date of the alleged contravention in the application before me predated the filing and determination of the same contravention dealt with in the Federal Magistrates Court.

8. During the course of the hearing the contempt allegations set out in paragraph 3 hereof, being withdrawn, were dismissed, with the grandfather’s costs in meeting that application being reserved.

9. Accordingly, the issues before me were the alleged contraventions set out in paragraph 1 above and the alleged contempt set out in paragraphs 4 and 5 above.

ALLEGED CONTRAVENTIONS:

1. The law on Contraventions has been very concisely stated by Dawe J in Short & Trevilian (No. 7) [2008] FamCA 548 at paragraphs 86 to100 of that judgment as follows:

   86.Division 13A “Consequences of failure to comply with orders, and other obligations, that affect children” forms part of Part VII of the Family Law Act. That Division contains certain sub-divisions, being subdivision C – “Contravention alleged but not established”, subdivision D - “Contravention established but reasonable excuse for contravention” and subdivision E – “Contravention without reasonable excuse” for less serious contraventions and in subdivision F for more serious contraventions.

   87.Section 70NAC provides:

   “A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)where the person is bound by the order--he or she has:

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order;”

   88.Section 70NAE provides:

   “Meaning of reasonable excuse for contravening an order

   (1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   (2)A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

   ...

   (4)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (5)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (7)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

   (a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).”

   89.Section 70NFA (2)(b) provides:

   “(2)For the purposes of paragraph (1)(d), this subsection applies if:

   …

   (b)the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order. ”

   90.It should be noted that the provisions of section 70NAE (1) specifically say that the circumstances “are not limited to” the circumstances set out in the other subsections.

   91.In a section headed “Standard of Proof” section 70 NAF provides:

   “(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)The court may only make an order under:

   (a) paragraph 70NFB(2)(a), (d) or (e); or

   (b)paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.”

   92.On the face of it therefore the Court is to use the standard of proof as “the balance of probabilities” when determining whether a contravention has occurred.  However, paradoxically, the Court cannot make certain orders unless it is satisfied beyond reasonable doubt that the grounds for making the order exist.

   93.Section 69ZM is the first section in the Act in Division 12A. It applies Division 12A to proceedings that are “wholly under this Part”. Section 69ZM(4) provides: “Proceedings to which this Division applies are child-related proceedings”.

   94.The proceedings for contravention are proceedings which are wholly under Part VII of the Family Law Act being Division 13A of that Part. It is therefore to be assumed that Parliament intended that the principles set out in Division 12A should apply to proceedings for contravention under Division 13A, (including paradoxically the need to make findings beyond reasonable doubt when applying some parts of Division 13A).

   95.Section 69ZT provides:

   “Rules of evidence not to apply unless court decides

   (1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:

   (a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;

   Note:  Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.

   (b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

   (c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

   (2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

   (3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

   (a)the court is satisfied that the circumstances are exceptional; and

   (b)the court has taken into account (in addition to any other matters the court thinks relevant):

   (i)the importance of the evidence in the proceedings;  and

   (ii) the nature of the subject matter of the proceedings; and

   (iii)the probative value of the evidence; and

   (iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

   (4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

   (5)Subsection (1) does not revive the operation of:

   (a)a rule of common law; or

   (b)a law of a State or a Territory;

   that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.”

   96.The Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 stated at page 71:

   “6.The high threshold for applying the rules of evidence is appropriate as the waiving of the specified provisions of the Evidence Act is an integral element of the active judicial management necessary to achieve less adversarial court processes in child related proceedings. It also implements recommendation 37 of the LACA report. However, the court is left with the discretion to apply the rules of evidence in the appropriate case where the threshold is reached. For example the test of ‘exceptional’ may be met in a serious contravention case where the court is considering a criminal penalty such as imprisonment. It may be appropriate to apply the rules of evidence to such a proceeding due to the gravity of the potential outcome. Even where rules of evidence are applied, other factors related to child-related proceedings can continue to operate, in particular the case management approach.”

   97.Again this appears to assume that the question of penalty will arise before the Court has determined that the “offence” occurred. This inconsistency is an inconsistency which is repeated in section 70NAF (which requires a different standard of proof depending upon the consequences to be applied once the offence has been established).

   98.Johnson and Page (2007) FLC 93-344 (a decision of the Full Court of the Family Court of Australia) dealt with the question of allegations of unacceptable risk of sexual abuse indicating that it was appropriate to apply the exception suggested in section 69ZT(3) where a party was seeking a positive finding of sexual abuse.

   99.The Court has a discretion to exercise under section 69ZT when dealing with contraventions.

   100.In any event, the Court is required to give such weight to the evidence received (whether within the provisions of section 69ZT or the exception of section 69ZT(3)) bearing in mind the serious consequences which might flow from a finding that a party has contravened an order of this Court.

Evidence of the Alleged Contraventions:

(a)            Alleged contravention at 3.15pm on 30 November 2007.

1. This is alleged to be a contravention of paragraph 5(d) of orders made in the Federal Magistrates Court on 23 July 2007.  That order states:

   5(d)That until further order the terms of paragraph 1(a) and (b) of the said order of 6 March 2006 be varied such that handover occur by way of the father collecting the children from school at the conclusion thereof on the Friday they are to commence residing with him and return them thereto at the commencement of school on the following Friday SAVE AND EXCEPT that the terms of paragraph 3 of the order of 6 March 2006 shall be revived on each of the middle Fridays of the Term 1, Term 2, and Term 3 school holiday periods and each Friday after the commencement of the Christmas school holidays in each year with the handovers to be effected on those days at 5.00pm.

2. Order 5(d) cited above in turn refers to paragraphs 1(a) and (b) and paragraph 3 of order made on 6 March 2006.  It was agreed that that should be reference to orders made on 7 March 2006. The relevant orders referred to are:

   (a)   The children being [M] born […] May 2006 and [C] born […] February 2001 reside with each of the parties in a shared care arrangement detailed as follows:

   (a)   Commencing at 4.00pm on Friday 10 March 2006 to reside with the father until 4.00pm on Friday 17 March 2006;

   (b)    The children then to reside with the wife from 4.00pm on 17 March 2006 until 4.00pm on 24 March 2006.

   …

   3.     That to facilitate each of the changeovers of residence periods each resident parent to deliver to the other parent the children at the end of that resident parent’s period of residence and/or contact.

3. When read together, order 5(d) of 23 July 2007 and orders 1(a) and (b) and order 3 of the orders of 7 March 2006 mean simply this:  the earlier orders provided for the changeover of the respective weekly residence periods to occur at 4pm on Friday with the parent whose residence period was concluding to deliver the children to the home of the parent whose residence period was about to commence.  The later orders varied that to provide for a collection of the children from school at the conclusion of school on Friday during school terms but left intact the arrangements for delivery to a parent’s residence during the school holidays. 

1. Firstly, it is argued that there is no evidence before the Court that the mother was aware of the orders made in the Federal Magistrates Court on 23 July 2007.  Although it is not clear that the mother was personally present when the orders were made, it is clear, on the face of the orders themselves, that the mother was represented by counsel on that day.  Whilst that argument would appear to be contrary to the principles in LGM and CAM (Contempt) (No 2) [2008] FamCAFC 1 (“LGM and CAM”), a more forceful argument on behalf of the mother is that the evidence relied upon in support of that contravention falls short of establishing to the requisite standard any contravention.  The evidence relied upon was specifically identified as that contained in paragraph 20 of the father’s affidavit sworn on 22 January 2008. 

2. Taking that evidence into account, paragraph 20 being subjected to a number of successful objections following the exercise of the Court’s discretion pursuant to s.69ZT(3)(a) and (b) of the Act, the Court makes the following observations:

   (i)The Court can take judicial notice that 30 November 2007 was a Friday and that it was a Friday during the New South Wales school term;

   (ii)There is no evidence before me as to whether the children were or were not at school on that Friday.  That is something that could have been proved by reference to school records etc.;

   (iii)If the children were at school it would have been the father’s obligation pursuant to the order he relies upon to collect them from school;

   (iv)If the children were not at school, the order he relied upon places no obligation upon the mother to deliver the children to the father’s home (other than during school holiday periods).

3. In summary, I am not satisfied to the requisite standard that on 30 November 2007 the mother contravened the orders specified by the father which was made in the Federal Magistrates Court.

(b)The alleged contravention at 3.15pm on 14 December 2007:

1. This too is alleged to be a contravention of paragraph 5(d) of orders made in the Federal Magistrates Court on 23 July 2007. 

2. I repeat the earlier paragraph which sets out that order.

3. Again it is argued on behalf of the mother that there is no evidence before this Court that the mother was aware of the orders made, albeit that the orders show she was represented by counsel.  My observations about LGM and CAM are repeated here. 

4. The evidence relied upon in support of this contravention is specifically identified as that evidence contained in paragraphs 26, 27, 28, 29 and 30 of the father’s affidavit sworn on 22 January 2008. That evidence was the subject of a number of successful objections as to admissibility following the exercise of the Court’s discretion pursuant to s.69ZT(3)(a) and (b) of the Act.

5. I am satisfied that:

   (i)The Court can take judicial notice of the fact that 14 December 2007 was a Friday and that it was a Friday during the New South Wales school term;

   (ii)There is no evidence before me as to whether the children were or were not at school on that Friday.  Again that could have been proven;

   (iii)If the children were at school it would have been the father’s obligation pursuant to the orders he relies upon to collect them from school;

   (iv)If they were not at school then the order the father relies upon places no obligation upon the mother to deliver the children to the father’s home (other than during school holiday periods);

   (v)Any evidence that the mother was attempting unsuccessfully to deliver M (presumably to the father because the father’s evidence is that she invited the father to collect M instead) falls short of establishing that the mother had an obligation pursuant to court orders to do such a delivery.

6. In summary, I am not satisfied to the requisite standard that on 14 December 2007 the mother contravened the specified order made in the Federal Magistrates Court.

(c)Alleged contravention at 5pm on 11 January 2008:

1. This too is alleged to be a contravention of order 5(d) of the Federal Magistrates orders of 23 July 2007.

2. I repeat the earlier paragraph which sets out that order in full.

3. Again it is argued on behalf of the mother that there is no evidence before this Court that the mother was aware of the orders made, albeit that the orders themselves show that she was represented by Counsel on that day.  My observations about LGM and CAM are repeated here.

4. The evidence relied upon in support of that contravention is specifically identified as that evidence contained in paragraphs 43, 44, 45 and 46 of the father’s affidavit sworn on 22 January 2008. Those paragraphs were the subject of a number of successful objections following the exercise of the Court’s discretion pursuant to s.69ZT(3)(a) and (b) of the Act.

5. I am satisfied that:

   (i)The Court can take judicial notice that 11 January 2008 was a Friday and that it fell during the New South Wales Christmas school holiday period;

   (ii)If 11 January 2008 was a Friday on which the father was to commence a residence period with the children, then order 5(d) of 23 July 2007 makes it clear in it’s internal reference to order 3 of the orders of 7 March 2006 that each parent’s residence period during the school holidays is to start by the other parent delivering the children at 5pm on the Friday; but

   (iii)There is no evidence before me that 11 January 2008 was a Friday on which the father’s residence period with the children was to commence.  That is a matter which could have been proven.

6. In summary, I am not satisfied to the requisite standard that on 11 January 2008 the mother contravened the specified order made in the Federal Magistrates Court.

ALLEGED CONTEMPTS

1. The law on Contempt has also been concisely stated by Dawe J in Short & Trevilian (No. 7) [2008] FamCA 548 at paragraphs 40 to 45 of that judgment:

   40.Section 112AP (1)(b) provides:

   (1)Subject to subsection (1A), this section applies to a contempt of a court that:

   …

   (b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.

   41.Section 35 of the Family Law Act provides:

   “Subject to this and any other Act, 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 contempts of the High Court.”

   42.It has been established that contempt under section 112AP must be proved beyond reasonable doubt.  In the Full Court judgment of LGM & CAM (2006) FLC 93-267, the Full Court held that it was necessary to establish beyond reasonable doubt both that the person concerned had knowledge of the terms of the order and of its meaning.

   43.In the decision of the Full Court of the Family Court of Australia in DAI and DAA (2005) FLC 93-215 the Full Court considered the principles applicable to contempt proceedings. At paragraphs 45 and following the decision refers to the significant principles of section 112AP of the Family Law Act, section 141 of the Evidence Act and the decisions of the Full Court in Tate and Tate (2002) FLC 93-107 and Tate and Tate (No 3) (2003) FLC 93-138. 

   44.The Full Court also referred to the High Court decision of Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 66 ALR 577 at 584:

   “Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.”

   45.In Ibbotson and Wincen (1994) FLC 92-496 the Full Court of the Family Court of Australia (Fogarty, Baker and McGovern JJ) heard an appeal from his Honour Justice Barry in relation to section 112AP (1)(b). At page 81,162 the Full Court said:

   “It is clear that paragraph (b) of that sub-section contemplates that in some circumstances the contravention of an order will constitute a contempt of Court. It defines that circumstance as being where the contravention involves a ''flagrant challenge to the authority of the Court''. Repeated breaches are not a prerequisite, although that may more readily attract this provision. 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 EVIDENCE ON CONTEMPT

(a)      The allegation against the mother on 27 October 2008 at 5.45pm.

1. This allegation relates to conduct said to be in contempt of order 2 of Family Court orders made on 23 July 2008 and order 2 of the Family Court orders made on 30 September 2008.  Those orders read, seriatum:

   23 July 2008:

   2.        Pending further order the children are to live with the father.

   30 September 2008:

   2.That the children thereafter are to have no contact with the mother, the maternal grandparents or either of them until further order.

2. It is submitted that whilst there is evidence before the Court, being the orders themselves, on which the Court could find that the mother was aware of the orders made on 23 July 2008, there is no evidence before the Court, including on the orders themselves, that the mother was aware of the orders made on 30 September 2008.  I accept that that is so, however my observations about LGM and CAM are repeated here.

3. The evidence of the mother’s alleged contempt on 27 October 2008 is specifically identified as being set out in paragraphs 1 to 10 of the father’s affidavit sworn on 30 December 2008. That evidence has been subjected to a number of successful objections as to admissibility following the exercise of the Court’s discretion pursuant to s.69ZT(3)(a) and (b).

4. Summarising that, as yet, unchallenged evidence of the events of 27 October 2008, the father’s case (at its highest) is that the father dropped C to school at 9am on the morning of the relevant day.  In the afternoon the father went to collect C and she was not there.  The father drove to his home, accompanied by M “via [E] Street” but there is no evidence of the significance, if any, of E Street.  C couldn’t be found, and during the father’s and M’s subsequent journey to the police station a phone call was received.  Back at his home the father spoke by phone to C and told her he’d been worried when she hadn’t come out of the school gate.  At 4.15pm M climbed over the railing at the father’s home and disappeared down the driveway.  At 5.45pm the mother and the grandmother arrived in a car with both children.  The children got out of the car but remained for about five minutes in the garden at the father’s home with the mother and the grandmother.  Both children then came inside the father’s home but the mother and grandmother remained in the garden of the father’s home in full view of the father’s windows.  M took C’s hand and said words to the effect of: “Let’s go to mum and grandma”.  The father took C’s other hand and attempted to physically block M leaving but was unsuccessful in doing so and M joined the mother and grandmother outside.  C was crying.  The mother left in her car about 6.10pm but M and the grandmother remained until 6.30pm.  During that later period M approached the veranda railing and spoke to C.  Whilst the father was speaking to the grandmother M helped C over the railing and the grandmother and the two children walked away down the driveway.

5. There is no evidence before me as to why C was not at school when the father went to collect her and in particular no evidence of any role played by the mother or the grandmother in that situation.  There is no evidence as to why M left the father’s home at 4.15pm and there is no evidence of any role played by the mother or the grandmother in that occurrence.  All the evidence appears to demonstrate is that the mother and the grandmother returned both children to the father at 5.45pm, the mother remaining in the garden of the father’s property until 6.10pm and the grandmother until 6.30pm.  During that period M attempted unsuccessfully to take C away from the home.  Despite the father trying to physically block M’s exit, M left to the join those in the garden.  M ultimately succeeded in helping C over the veranda and the two children left with the grandmother at 6.30pm.

6. Whatever the reason that both children were in the mother’s company at 5.45pm, there is no evidence before me that the mother directly enticed the children away from the father and indeed, at that time, the mother delivered both children to the father where they were, pursuant to the orders, supposed to be.  Thereafter M, and then C with the assistance of M, left the father’s home but there is no evidence before me that they were enticed to do so by the mother.  The fact that she remained in the father’s garden for approximately 20 minutes falls short of amounting to enticing the children to leave. 

7. Similarly, the fact that the grandmother remained in the garden for a further 45 minutes and then left the father’s premises in the company of the children at 6.30pm falls short of establishing that the grandmother enticed the children away from the father’s home.

8. There is no evidence before me that following the events of 27 October 2008 the children have remained living with, or at the premises of, persons prohibited by court orders. 

9. I am not satisfied to the requisite standard that on 27 October 2008 either the mother or the grandmother enticed the children away from the father’s house, that is, from a parent and residence where the children had been ordered to live.  In fact much of the evidence to which I have just referred is consistent with a finding that M, a 12 year old, has played a significant role himself in the events of that day, on one view he being the one who has not wanted to stay at the father’s home and he being the one who has enticed C to join him in departing those premises.  It is his role in the proceedings that appears to be the most significant.

10. It has been submitted on behalf of the mother that there is no prima facie case for the mother to answer in relation to the contraventions and no prima facie case for the mother and/or the grandmother to answer in relation to the contempts.  It is further submitted that the father’s application should be dismissed.

11. Based on the findings I have made, which highlight the paucity of evidence to support the serious allegations that have been made, I have come to the view that there is indeed no prima facie case of either contravention or contempt in the matters that have been aired before me.

12. It must be borne in mind that contravention applications and particularly contempt applications are very serious matters indeed.  The penalties attached to a positive finding are severe and can include substantial fines and indeed imprisonment.  It is for that reason that the law requires the matters to be strictly proven.  The father’s case consists of the evidence before me in the paragraphs specifically identified.  It should be borne in mind that the father’s case, at its highest, would be that evidence unchallenged.  I say that because there is no requirement that the father be cross-examined and thereby give him an opportunity to provide further evidence to the court; there is no requirement that the mother provide any evidence in which she tells her side of the story.  At the end of the day I am required to determine this matter on the evidence that is before me now.  I could not make such a determination favourable to the father.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm

Associate: 

Date:  9 March 2010