Chranley and Smart (No 6)

[2010] FamCA 715

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART (NO. 6) [2010] FamCA 715

FAMILY LAW – CONTEMPT – numerous applications by the father alleging the mother was in contempt of court orders – where it is alleged that the mother failed to comply with consent orders that the child spend time with the father – flagrant challenge to the authority of the Court not established – orders that applications be dismissed

Family Law Act 1975 (Cth) s 112AP

Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell (2000) FLC 93-053
Ibbotson & Wincen (1994) FLC 92-496
Tate & Tate (2002) FLC 93-107
Witham v Holloway (1995) 183 CLR 525

APPLICANT: Mr Chranley

RESPONDENT: Ms Smart

FILE NUMBER: ADC 207 of 2008

DATE DELIVERED: 9 August 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 9 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: n/a

Orders

1. All contempt applications filed by the father are dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 207 of 2008

MR CHRANLEY

Applicant

And

MS SMART

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The first application for contempt is the application filed on 12 October 2009 which relates to the alleged contraventions of 21 February 2009 through to 10 October 2009 dealing with the alleged contraventions which occurred at 4.00 pm on all of the dates referred to therein save and except those of 10 October 2009, 3 October 2009, 26 September 2009 and 19 September 2009 which referred to 10.00 am.  The rest of the alleged contraventions are alleged to have occurred at 4.00 pm on the particular dates.  I refer to the contempt applications alleging that the contraventions occurred, and therefore a “flagrant challenge to the authority of the Court” being expressions used in section 112AP of the Family Law Act. 

2. However, these are contempts which the father is alleging to have occurred all at 4.00 pm except those which I have mentioned occurred at 10.00 am.  The affidavit of the father filed on 12 October 2009 which recites those dates again not giving times, but asserting that the respondent mother did not comply with the consent orders made on 4 December 2007 “by directing that [the child S] not spend the Court-ordered time with her father.”

3. That is the evidence supplied by the father in his affidavit in support of the range of all of the alleged contempts ranging in time from 21 February 2009 through to 10 October 2009. 

4. In his oral evidence when cross-examined by the mother, the father admitted that on each of the occasions when there was a contempt alleged on those dates at 4.00 pm the father had in fact returned the child to the handover centre at 4.00 pm following upon the child’s request to him that she wanted to be returned at that time.

5. The evidence supplied by the father therefore does not establish any behaviour on the part of the mother which would constitute a contravention that involved a flagrant challenge to the authority of the Court.  There is nothing in his affidavit or his oral evidence that would establish on any basis, let alone beyond reasonable doubt, that the mother was behaving in a way which constitutes a flagrant challenge to the authority of the Court on those occasions when the child was returned by the father to the mother at 4.00 pm.

6. The other applications relate to several occasions where the contempt is alleged to have occurred at 10.00 am on 10 October 2009, 3 October 2009, 26 September 2009 and 19 September 2009.  Again, the evidence of the father in relation to those occasions is simply as previously stated that the respondent mother did not comply with the consent orders made on 4 December by directing that the child not spend the Court-ordered time with her father. 

7. The father makes that assertion in his affidavit, but provides no evidence other than his assertion that would allow the Court to make a finding on any standard of proof let alone the requirement of beyond reasonable doubt that the mother did anything to direct that the child not spend time with her father on that occasion.

8. Part of the evidence during cross-examination of the father related to exhibit 1 which was a letter dated 5 September 2009, but handed to the father, he admits, by S on 6 September 2009.  That letter is written by the child and handed to the father at the end of his time with her on that day (which he informed the Court was Father’s Day).  Included in that letter is:

   “I’ve had fun with you, but I think it’s best that it doesn’t continue.  I have told the people from [the] Contact Centre that I don’t want to see you any more.  This was my choice and my mother had no influence whatsoever.  From [S].”

9. The father points to the age of the child S, and by implication clearly criticises the mother for involving the child S in the matter to the extent that he says she wrote the letter. 

10. There is, however, no evidence before the Court to indicate and/or establish on a prima facie case that the mother was responsible for the child writing the letter.  The Court has to take into account, of course, that the child was born in March 1997, and therefore at the time of writing the letter was only 12 years of age.

11. The Court also takes into account, however, the report of the specialist expert, Dr M, a Child and Family Counsellor (being the fifth paragraph on that page 10).  The father drew the Court’s attention to that paragraph in which the child expressed in 2007 her concerns about spending time with the father independently to the Family Consultant.  In that paragraph it says:

    “[S] initially expressed reservations again about sleeping over at her father’s house telling me that she was not sure if her mother was happy about her staying overnight at her father’s, and it would really help if she said it was okay.  She was also clear that she was unhappy about the ongoing conflict between her parents that make her feel uncomfortable.  In discussing this, [S] felt that if her mother and father were no longer fighting and could agree about the children, and if her father didn’t talk about Court any more then she felt she could sleep over on the Saturday night”.

12. The Court places some emphasis on the fact that that was a report prepared in 2007 and that there have been ongoing and more detailed proceedings between the mother and father in this Court since that time.  In that context, therefore, the mere assertion by the father on the occasions in October 2009 that the mother “did not allow the father his Court-ordered time spent with [S]” has not been made out. 

13. The Court accepts that on occasions when the child was due to attend the time with the father she attended at the handover centre, but indicated to the staff that she did not wish to attend further time with him.  In the context therefore of the necessary standard of proof,  I am not satisfied that the father has established a prima facie case in relation to the contempts contained in document 4 in the contempt application filed on 12 October 2009, and I dismiss the same.

14. The next application for contempt (document 40) is an application which asserts that the mother has shown a disregard for the consent order made on 4 December 2007 by not allowing the father his Court-ordered time to be spent with the child. 

15. The actual contempt application refers to 17 October 2008 at 10.00 am.  However, the affidavit filed by the father refers to 17 October 2009.  The father admitted or asserted in cross-examination from the mother that the reference in the contempt application to 17 October 2008 was an error, and that the contempt application should have referred to 17 October 2009.

16. Accepting that the error was merely a typographical error, the Court would not dismiss the application simply on that basis.  However, the Court needs to then consider the evidence of the father in support of that application which is his affidavit filed on 20 October 2009 (document 41) and again it says:

    “On 17 October 2009 the respondent mother did not comply with the consent orders made on 4 December 2007 by directing that [S] not spend the Court-ordered time with her father”.

17. The father does not present any evidence upon which he bases the conclusion that the mother directed the child not to spend time with her father.  On that basis and in the context of the history of the matter, and in particular the acknowledgment by the father of the receipt of the correspondence from S, the father has not established the necessary basis for a contempt which would involve a flagrant challenge to the authority of the Court by the mother.  Therefore the contempt application filed on 20 October 2009 is dismissed.

18. The next contempt application before the Court is the application filed on 26 October 2009.  This application asserts that on 24 October 2009 at 10.00 am the respondent mother has shown disregard for the consent orders made on 4 December 2007 by not allowing the father his Court-ordered time to be spent with S.  It says, “See attached annexure A of application of contempt”.

19. Annexure A to the application is the order of the Court made on 4 December 2007.  The evidence in support of the application for contempt is the father’s affidavit filed on 26 October 2009 (document 46) which has five paragraphs.  The first is:

    “I was advised by staff that [S] was not in attendance at the changeover facility on 24 October 2009.  [S] has not spent any time with me since 7 September 2009.  I’ve had no notification of any illness as stated in the consent orders made on 4 December 2007.  No medical certificate has been supplied as stated in the consent orders made on 4 December 2007.  I have not been notified by the respondent mother of any reason for the non-compliance of the consent orders made on 4 December 2007.”

20. There is no reference in any way to the letter dated 5 September 2009 and handed by S to the father on 6 September 2009 in which the child expresses an unwillingness to continue any more time with the father and in which she asserts that the mother had no influence over her.  Whilst the Court may not accept that as proof of the matters contained therein, the father has not referred to the letter from S in his application for contempt.

21. On the basis that it is necessary for the father to establish beyond reasonable doubt the flagrant challenge to the authority of the Court, I am not satisfied that the father has made out the contempt.

22. The next contempt application is the application for contempt filed on 5 November 2009 which refers to an alleged contempt on 31 October 2009 again asserting that the respondent has shown disregard for the consent orders by not allowing the father his Court-ordered time. 

23. The affidavit filed by the father in support of that application was some nine paragraphs.  The first asserts that he attended at the changeover facility on 31 October 2009.  He says:

    “(2)     I was advised that [S] was in attendance at 9.55 am.

    (3)      I do not know if the respondent mother was present.

    (4)I was advised by staff at the changeover facility that [S] did not want to spend Court-ordered time with me today.”

24. He then refers to the fact that the child has not spent any time with him since 7 September 2009 and again repeats his assertion that he has not had any notification of illness or medical certificate or any other reason for her non-compliance. 

25. Clearly, from the evidence before the Court today he was aware from both a letter from S (which purports to express her wish in relation to those matters) and the letter from the mother (which is another annexure at page 33 of the mother’s affidavit) which was put to the father in cross-examination today.  When asked whether he had received that letter of 8 September 2009 he was not sure but gave evidence to indicate that he probably had received it.  That is a letter from the mother to the father in which it says:

    “[Mr Chranley], following your receipt of the handwritten letter from [S] dated 5 September 2009 given to you directly by [S] on Sunday, 6 September 2009 at Children’s Contact Service, I advise that [S] will continue to attend at Children’s Contact Service each alternate Saturday morning at 1000 hours as per orders by consent dated December 4, 2007.”

26. It then continues to refer to the mobile phone contact.  In that letter the mother is clearly expressing her desire to at least attend at the contact centre with S in accordance with the orders.  The father was therefore aware of the wishes of the child and the intention of the mother to take the child to the contact centre. 

27. However, again on the necessity to establish the flagrant challenge to the authority of the Court by any alleged contravention, I am not satisfied that the father has made out the necessary evidence to the standard of proof.  I dismiss that application.

28. The application for contempt filed on 10 October 2009 refers to the respondent mother’s alleged failure to comply with the orders on 7 November 2009.  The affidavit material of the father in support of that application is very similar to those previously referred to including that on this occasion he was advised by staff that the child was not in attendance at the changeover facility.  Again, he asserts no reason being made out.  From the material before the Court it is not clear from this affidavit of the father that it was an occasion when the child was required to attend to spend time with the father to the extent that the father may or may not be relying upon his interpretation of the consent orders of 4 December.  I will return to that later in my reasons.

29. However, if that was an occasion when the child was due to attend, then he may have established a contravention, but has not established the contravention to the extent that it was a flagrant challenge to the authority of the Court, in particular considering the letter from his daughter S which he had received in early September 2009.  I therefore find that the father has not made out the contempt matters as alleged therein.

30. The next contravention application alleges that on 14 November 2009 the mother was in contravention of the orders for failing to provide his time with the child.  Again, the affidavit in support of that application for contempt refers to the father being present on 14 November, and that he was advised that S was in attendance.  I draw attention to that because the order provides for the child to spend time with the father on alternate weekends, not every weekend.  That therefore would support the contention that 7 November 2009 was not an occasion when the child was due to be present at the handover facility for the purposes of having time with the father, save and except that the father interpreted the orders of 4 December 2007 to mean that.

31. The contempt application so far as it refers to the 14 November 2009 clearly indicate that S was in attendance on that day, and again that the father was advised by staff at the changeover facility that the child did not want to spend Court-ordered time with him that day.  Bearing in mind the expression of the wishes of the child on the previous occasions and that she has been taken to the handover centre on that day, I am not satisfied that the father has made out the necessary basis for the flagrant challenge to the authority of the Court.

32. 7 November 2009 is an occasion when it would appear to be the case that the mother would assert that the orders of 4 December 2007 do not require her to have the child at the handover centre.  When questioned about attending at the handover centre on various occasions when the mother alleged he was not entitled to spend time with S, the father gave evidence that he interpreted paragraph 5.4 of the consent order of 4 December 2007 to entitle him to “make up” time for any time that did not take place with the child otherwise than in accordance with that order.  Paragraph 5.4 reads:

    “Should any karate functions or tournaments be scheduled during the father’s time with [S] then his time on that weekend shall be varied so that the father’s time shall occur on the following weekend provided there should be no decrease in the father’s time with [S], and the mother shall give the father notice within 24 hours of receiving notice herself and not less than seven days’ notice”.

33. There is nothing in that paragraph or in any other part of the order which would suggest that the mother was required to give the father “make-up” time for every occasion missed.

34. I am dealing with contempt.  In relation to 7 November 2009 (and probably some other applications).  There is nothing in paragraph 5.4 which would allow the Court to find that the mother has flagrantly challenged the authority of the Court by not providing S at the contact centre on days which would not otherwise be construed by her as the alternate weekends required in the order of 4 December 2007.  That is the further reason for my dismissal of the application in relation to 7 November 2009.

35. The next application is the application for contempt filed on 23 November 2009 which refers to an alleged contravention by the mother on 21 November 2009.  The affidavit filed in support of that application states that the father attended the changeover facility on 21 November 2009, and was advised by staff that S was not in attendance on that day.  In accordance with the remarks that I have made concerning 7 November 2009, it is apparent from the father’s evidence that he was attending on that day pursuant to his interpretation of the orders of 4 December 2007 but, in effect, it was not a date on which S was due to be presented to the contact centre for the purposes of handover in accordance with the orders of the Court of December 2007.  The father was mistaken in relation to his interpretation of the consent order of 4 December 2007 so far as it related to the application of the orders in 5.4.

36. The father is again interrupting me.  I am attempting to give my reasons in relation to the question of whether a prima facie case has been established in relation to the applications for contempt. 

37. The application for contempt which was filed on 7 December 2009 deals with an alleged contravention on 28 November 2009 at 10.00 am.  The father’s affidavit indicates that at the commencement of the time directed for S to spend time with him he was advised that S was in attendance at 10.00 am.  He was advised by staff at the changeover facility that the child did not want to spend Court-ordered time with him on that day.

38. Again, the father complains that S has not spent any time with him since 7 September 2009, and he received no specific information by way of notification of any illness or medical certificate, nor any reason for non-compliance.  Again, I draw attention to the letters from the mother of 8 September 2009 and the letter the father received from S on 6  September 2009.  Faced with that information the Court is not in a position to say that the father has established a contravention which involves a flagrant challenge to the authority of the Court, and therefore the contempt alleged to have occurred (being a contravention allegedly showing a flagrant challenge to the authority of the Court) has not been established.  I dismiss that application for contempt.

39. The next application for contempt filed on 7 December 2009 which alleges a contempt on 5 December 2009.  The supporting affidavit refers to the father’s attendance at the contact centre when he was advised that S was not in attendance on that day.  This is clearly the week following 28 November 2009 when S was in attendance, but the father maintains that she was meant to be in attendance because of his interpretation of the consent order, paragraph 5.4.  The father has not established that the time spent was due to take place on 5 December 2009 in accordance with the orders, and therefore that contempt application is dismissed.

1. The contempt application filed on 17 December 2009 (document 84) refers to a contempt alleged to have occurred on 12 December 2009, and in the affidavit in support of that contempt application the father says that he was on that occasion advised that S was in attendance, and he was advised by staff at the changeover facility that the child did not want to spend Court-ordered time with him that day.  He continues in similar terms to say that he had not been notified by the respondent mother of any reason for non-compliance with the orders.  However, for the same reasons I have previously given in relation to the reference to the mother’s letter and the letter from S, the father has not established beyond reasonable doubt the necessary basis for a flagrant challenge to the authority of the Court to be made out.  I dismiss that application.

2. The next application for contempt was filed on  31 March 2010.

3. Notwithstanding the father’s continual interruptions, I proceed with my reasons in relation to the application for contempt filed on 31 March 2010 which refer to a failure by the mother to comply with the orders on 6 February 2010, 13 February 2010, 20 February 2010, 27 February 2010, 6 March 2010, 13 March 2010, 20 March 2010 and 27 March 2010.

4. The father is alleging it to be a contempt of the Court on a weekly basis notwithstanding that the orders of the Court provide for alternate weekend time.  

5. In relation to 6 February 2010, S was in attendance, and the staff informed the father that S did not want to spend Court-ordered time with him.

6. In relation to 13 February 2010 he was advised by staff that she was not in attendance.  This would suggest that there is established the alternate weekend routine of the mother delivering S to the contact centre, S telling the staff that she did not want to attend with the father, and no other reason being given to the father. 

7. The occasion on 6 February 2010 involved the father giving evidence in paragraph 10 that he was told by the manager known to him as R that:

   “[S] had given her a verbal message to give to me.  [R] then relayed to me that [S’s] message was that one of the reasons that she doesn’t spend any time with me is because it’s not one-on-one time the way it used to be”.

8. The father does not present any evidence of any other reasons provided by S to him on that occasion.

9. In relation to the other contempts alleged in that application, the affidavit material presented by the father is consistent with S being in attendance on days when time spent was meant to take place, and not being in attendance on the following Saturday.  The father continues to allege that the respondent mother has not given him any reason for non-compliance.  However, I note the father’s acknowledgment of receiving the letters of the mother and S.  The affidavit is consistent in that it establishes that on the days when S was in attendance she told the staff that S did not want to spend time with the father on that occasion.

10. The only other matter of significance in the affidavit evidence of the father in relation to that contempt application are the incidents which occurred on 20 March 2010 when the staff advised the father that S did not want to spend time with him.  He says that:

    “He requested the staff to give [S] a present that he had taken there for [S’s] birthday.  The staff told him that [S] accepted the present, and the staff gave me a letter from the respondent mother.  The letter informed me of [S’s] new telephone number”.

11. He says:

    “This is the first time the respondent mother has complied with Court orders and supplied me with a phone number for [S]”.

12. Otherwise there is no distinction between the material alleged in relation to each of the occasions set out in the affidavit filed on 31 March 2010 and the application for contempt filed on 31 March 2010. 

13. Taking into account therefore that some of the occasions have not been established as occasions when S was meant to spend time with the father, and further taking into account that when S was meant to spend time with the father in accordance with the orders of 4 December 2007, the father was informed that S was refusing to spend time with him, I am not satisfied that the father has established on the necessary standard of proof the basis for a prima facie case that the contravention alleged was one which involved a flagrant challenge to the authority of the Court necessary to establish a contempt.

14. The application for contempt filed on 5 January 2010 alleges that the mother showed a disregard for consent orders by not allowing the father his Court-ordered time to be spent with S on 24 December 2009 at 3.00 pm.  The affidavit in support of that application was also filed on 5 January 2010 and asserts that on 24 December 2009 at 3.00 pm the father received a phone call from the Contact Centre, who stated that S was present at that time.  The father advised them that he would be there shortly.

15. He said:

    “The changeover facility advised me that [S] had refused to spend any time with me”.

16. In cross-examination the father admitted that he did not then continue on to the handover centre that day relying upon the information that had been supplied to him by the staff at the contact centre.  I am therefore not satisfied that the basis of a flagrant challenge to the authority of the Court has been made out bearing in mind the age of the child, and the expression of the wishes of the child had now been consistently expressed by her for a considerable period of time.

17. The next application which is before the Court is the application for contempt filed on 6 April 2010 which deals with the allegations of contempt ranging in time from 28 February 2009 through to 8 August 2009.

18. In relation to the contraventions which are alleged on 28 February 2009, 14 March 2009, 28 March 2009, 11 April 2009, 25 April 2009, 9 May 2009, 23 May 2009, 6 June 2009, 20 June 2009, 18 July 2009, 1 August 2009 and 8 August 2009, they are all allegations of the mother committing alleged contempt on the basis that without any excuse she refused to allow the applicant to have the agreed Court-ordered time to be spent with S, and that the respondent mother has shown disregard for the consent orders by not allowing the father his Court-ordered time to be spent with S.

19. During cross-examination the father conceded that the dates referred to in this application for alleged contempt were dates which he described as “the varied time”. In fact, and this is confirmed by his affidavit, which says in paragraph 2:

    “The respondent mother did not make [S] available for the varied time to be spent with her father on the dates referred to as per the consent order”.  (Emphasis added).

20. He admitted in cross-examination that he had interpreted the consent order of 4 December 2007 to mean that the provisions of paragraph 5.4 suggested that he should receive time with S the following week if he did not receive it the week before.  The mother was not under an obligation in those circumstances to provide the child for time with the father on those occasions.  Therefore the father has failed to establish any contravention, let alone a contravention that involved a flagrant challenge.

21. Another application filed by the father on 5 January 2010, document 94, deals with an alleged contempt which he asserts occurred on 26 December 2009 at 10.00 am.  The affidavit in support asserts that on that day he attended the contact centre and was advised that S was in attendance.  He was advised by staff at the changeover facility that S did not want to spend the Court-ordered time with him and that:

    “The staff at the changeover facility returned with three gift bags of presents from [S] with the instructions that they were for my partner, [C], and her two children, [N] and [E]”. 

22. He then maintains again that he had not been provided with any medical certificate or details of any illness, and he had not been given any reason for non-compliance with the consent orders of 4 December 2007.  Again, for the reasons which I have already given, the application and affidavit of the father does not establish a sufficient basis proof of a flagrant challenge to the authority of the Court.

23. The application for contempt filed on 2 February 2010 (document 102) alleges contempt on 16 January 2010, 23 January 2010 and 30 January 2010.  The father asserts that on 30 January 2010 he attended the contact centre, but S was not in attendance on that day.  The father has not established beyond reasonable doubt the requirement that S was required to spend time with him on that day.

24. The next alleged contempt relates to 23 January 2010 when the father asserts that he was advised that S was in attendance, and again that the staff at the changeover facility advised the father that S did not want to spend Court-ordered time with him on that day.  The affidavit again repeats the matters of a similar nature in the previous applications.  Again, the alleged contravention on 16 January 2010 asserts that S was not in attendance.  For the reasons which I have already given, the contempts alleged on 23 January 2010 and 16 January 2010 are not established.

25. I have attempted to deal with each of the contravention applications and assume that I have done so with the contempt applications in relation to the material which is currently before the Court.  I have therefore dismissed all of the contempt applications before the Court, and do not require the mother to give oral evidence in relation to those matters.

26. The contraventions are alleged to be a flagrant challenge to the authority of the Court under section 112AP. I rely upon the authorities of Witham v Holloway (1995) 183 CLR 525 and Tate & Tate (2002) FLC 93-107.

27. I also take into account the authorities dealing with flagrant challenge which refer to exceptional striking or repeated nature such as Ibbotson&Wincen (1994) FLC 92-496 and FaunaHoldings Pty Ltd & McGillivray & Ors&Mitchell (2000) FLC 93-053.

28. I have specifically taken into account the number of asserted contempts and the number of occasions in a row that S has not attended upon time with the father, as well as the other material which is before me when considering whether the father has established to the necessary standard of proof any conduct which involved flagrant challenge.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 August 2010