Cornett & Hext (No 3)
[2023] FedCFamC1F 655
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cornett & Hext (No 3) [2023] FedCFamC1F 655
File number(s): MLC 5714 of 2018 Judgment of: JARRETT J Date of judgment: 3 August 2023 Catchwords: FAMILY LAW – Contravention application by applicant mother – prima facie case not established in respect of a number of counts – admission of six counts without reasonable excuse by respondent father – less serious contraventions – no sanctions imposed – application dismissed Legislation: Family Law Act 1975 (Cth) Part VII, Division 13A, Subdivision E, Subdivision F, section 4AB, section 60CC, section 70NBA, section 70NEA, section 70NEA sub-sections (1(c), (2), (2)(a), section 70NEB Division: Division 1 First Instance Number of paragraphs: 49 Date of hearing: 3 August 2023 Place: Brisbane Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Ms Dellidis Solicitor for the Respondent: Kenna Teasdale Lawyers ORDERS
MLC 5714 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CORNETT
Applicant
AND: MR HEXT
Respondent
order made by:
JARRETT J
DATE OF ORDER:
3 AUGUST 2023
UPON THE COURT FINDING upon the respondent’s admission that he has, without reasonable excuse, contravened the orders made under the Family Law Act 1975 (Cth) by Williams J in the Family Court of Australia at Melbourne on 12 February, 2021 and 13 May, 2021, in that:
(a)in contravention of orders 10 and 11 respectively thereof, he did not send to the applicant’s email address a copy of the children’s school reports for Term 2, 2021 when they were made available by the children’s school;
(b)in contravention of orders 11 and 12 respectively thereof, he did not send to the applicant’s email address a copy of a report regarding the assessment for autism spectrum disorder for the child B;
(c)in contravention of orders 10 and 11 respectively thereof, he did not send to the applicant’s email address a copy of the children’s school reports for Term 4, 2021 when they were made available by the children’s school;
(d)in contravention of orders 9(a) and 10(a) respectively thereof, he failed to notify the applicant in writing of a change in the children’s schools;
(e)in contravention of orders 10 and 11 respectively thereof, he did not send to the applicant’s email address a copy of the children’s school reports for Term 2, 2022 when they were made available by the children’s school; and
(f)in contravention of order 3 of the orders of 13 May, 2021, he did not inform the applicant by email of the children’s change of address from Victoria to Queensland;
THE COURT ORDERS THAT:
1.The contravention application filed by the applicant on 15 November, 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
We are at the stage in this contravention proceeding where I need to make a determination about whether there is a prima facie case against the respondent in respect of the counts that have been alleged against for him. The applicant has given her evidence and she was cross‑examined. I have had the benefit of submissions from her and from the respondent’s counsel.
There seemed to be some consternation on the applicant’s part that when she was cross‑examined by counsel for the respondent, counsel referred to documents that had been part of a court book that was filed by the respondent as late as yesterday. The consternation was misplaced because what the cross-examination revealed is that the correspondence or the documents that were cross-examined upon was correspondence that had emanated in the first instance from the applicant and constituted a chain of correspondence between her and the respondent’s then lawyers. She could hardly be taken by surprise by emails that she wrote or the replies that she received.
I will deal with the counts as they appear in the application for contravention. That document has many pages and has page numbers at the bottom right-hand corner. I will refer to the counts by reference to the page number. The first one straddles pages 2 and 3 of the contravention application. It alleges that in contravention of order 5 of the orders made on 15 December, 2020, on 25 December, 2021, the father, without reasonable excuse, failed to facilitate a phone call from the children on Christmas Day 2020 at 10.30 am. I have assumed that the specification of the date of the alleged contravention as 2021 is wrong, and, really, what was intended was 2020. But whether that is right or not does not matter. The evidence does not bear out the contravention.
In support of it, I was taken to an excerpt of transcript from the cross-examination of the respondent at the trial of these proceedings and it was suggested that his answers in cross‑examination and the questions that he was asked demonstrated that the contravention was made out. But they do not. Questions asked by counsel, unless they are accepted by the witness, are not evidence. The facts proposed by those questions, unless they are accepted by the witness, are not evidence. It is the answers of the witness that is the evidence and the evidence from the respondent was that he tried to make the relevant telephone call on two occasions, but it did not go through. There is no contrary evidence. There is no prima facie case in respect of the count that appears on pages 2 and 3 of the contravention application.
The next one appears on page 4a. It alleges that on various dates, in breaches of order 8 of the final orders made on 12 February, 2021 and order 9 of the final orders made on 13 May, 2021, the respondent, without reasonable excuse, failed to maintain a postal address or provide one to the applicant via email in accordance with those orders. This contravention is allied with some others that appear later in the document and, in particular, those that appear at pages 4f, 4g, 4h and 4i. They all turn on the notion that the respondent had not provided to the applicant a postal address or facilitated the receipt by the children of gifts and cards from the mother.
There are some things to say about the terms of the orders. The requirement imposed on parties by order 9 and order 6(a) is to keep the other appraised of their postal or email addresses. A postal address is just that, an address for the receipt of post. The mother’s case seems to be that the father provided her with a post office box and some of the couriers and delivery companies by which she chose to have packages delivered for the children would not deliver to the post office box because of the policy of the couriers or other companies that she engaged for that purpose. But the obligation under the orders is to provide a postal address or, under order 6(a), to maintain a postal address. A post office box is a postal address.
The evidence demonstrates that in December, 2021 there was correspondence between the mother and the father’s solicitors, and a postal address was provided before Christmas by correspondence on 21 December, 2021. So much seems to have been accepted by the applicant in cross-examination before me. In any event, as counsel for the respondent points out, the emails attached to her affidavit demonstrate that she knew full well of the post office box. She conceded as much in cross-examination.
Her real complaint seems to be that because the father has provided a post office box, packages that she chooses to have delivered by FedEx or some other courier company cannot be delivered because those companies refuse to deliver to post office boxes. But none of that is relevant because the obligation is to maintain a postal address and the obligation under order 6(b) is to facilitate the children receiving from the mother such cards, gifts or letters as she may send in accordance with this order.
Given that postal addresses are talked of rather than delivery addresses, for example, the father needed to do no more and any expectation that he would do more is misconceived. To this point, it is necessary to recall that the wife is at liberty to send to the children by registered post at Christmas and on the children’s birthdays a card, letter or gift for the children. See the preamble to paragraph 6 of the order. The liberty that is given to the wife is to send to the children by registered post. It says nothing about couriers, courier companies or other forms of delivery. The liberty is limited to registered post.
There is not a scintilla of evidence before me that would suggest that a parcel posted using Australia Post, that is, the official post office for this country, would not deliver those parcels to a post office box or, in the alternative, advise the husband through, for example, a card placed in the post office box that there are parcels waiting to be collected at the local post office. Those counts that deal with this issue, 4a, 4f, 4g, 4h and 4i are not supported by the evidence. There is no prima facie case for the respondent to answer and they will be dismissed.
The next count, 4b is conceded to be the same as the allegation in 4j and the respondent admits that. We will come to that soon.
Count 4c is admitted. I need make no findings about that now.
Count 4d was originally denied, but during the course of argument, I got the impression that it is now conceded. Whether it is conceded or not, I am satisfied there is a prima facie case for the respondent to answer here. On its face, there is a report which is clearly caught by order 12 of the orders made on 13 May, 2021. The report was authored in December, 2021 but not given to the applicant for, it seems, about two years afterwards. Prima facie, it seems to be a contravention of the order. That count can remain.
Count 4e is admitted.
I have dealt with 4f, 4g, 4h and 4i.
Count 4j is admitted. Count 4k is admitted.
Count 4l alleges that in breach of order 3 of the final orders made on 13 May, 2021, the father, without reasonable excuse, failed to advise the mother via email that he and the children had left the State of Victoria and now live in the State of Queensland. This is an interesting allegation of contravention and the consideration of it must start with a consideration of the orders. Order number 1 of the orders made on 13 May, 2021 provides for the discharge of all earlier orders. The second order provides this:
The husband have sole parental responsibility for the long-term care, welfare and development of the children, including determining –
and then on it goes to set out a number of matters. Order 3, the one alleged to have been contravened here, is in these terms:
The husband inform the wife via email of any decision he has made regarding the long‑term care, welfare and development of the children as soon as practicable upon making it.
It was said in argument for the respondent that the decision here that the father made to relocate the residence of the children from Victoria to Queensland was probably not the type of decision which is caught by the order. Reference was made to the definition of major long-term issues in s 4AB of the Family Law Act 1975 for that purpose. But the reference is not to the point. This order does not speak about decisions concerning major long-term issues. This order speaks about sole parental responsibility for long-term care, welfare and development. That latter phrase, “long-term care, welfare and development”, does not appear in the Act and has not appeared in the Act for – I think since 1995. Why practitioners insist on putting it in orders is beyond me. These were consent orders settled between the parties.
So to the extent that the parental responsibility vested in the father in this case is “sole parental responsibility for the long-term care, welfare and development of the children”, recourse to the definition of “major long-term issues” in s 4AB of the Act is not helpful. What is helpful is the father’s own understanding of what might be encompassed by that term. It is as good a guide post as any to what it really means and the cross-examination to which I was taken by the applicant in the transcript of the trial demonstrates that the father considered that a decision about where the children were living was something that he might have to notify the mother about. There is a prima facie case here. It needs to be answered by the respondent.
Paragraph 4m alleges that in breach of some orders – interim orders, as it turns out – made on 2 April, 2019, the father, without reasonable excuse, left two of the children – or one of the subject children and another child alone in a car for 47 minutes in the middle of the day metres from AX Street, Suburb FF. This is an incident that attracted the attention of evidence at the trial before Williams J. There was cross-examination about this issue to which I was taken. It was clearly something that was in issue and which formed part of the matters taken into account, no doubt, by her Honour when she reached the orders and conclusions that she did.
The contravention happened years ago now. The orders said to have been contravened are no longer in force. There is little point, it seems to me, in making any orders at all about this contravention. I am not satisfied that there is a prima facie case, and even if there was, I would exercise my discretion to strike out this count.
For the same reasons, the count at page 4n suffers the same fate.
Accordingly, it seems to me that the following counts will be struck from the contravention application: that appearing on pages 2 and 3, that appearing on page 4a, that appearing on page 4b, those appearing on pages 4f, 4g, 4h, 4i, 4m and 4n.
The ones that remain, on my reckoning, are these: 4c, which is admitted; 4d, in respect of which I have made a finding of a prima facie case; 4e, which is admitted; 4j, which is admitted; 4k, which is admitted; and 4l, in respect of which I have made a prima facie case finding. So of those six, four are admitted and two are denied, but I say there is a prima facie case in respect of those denied.
Division 13A of Part VII of the Family Law Act 1975 (Cth) is the division pursuant to which applications for contravention in relation to orders concerning children are authorised. Subdivisions E and subdivision F of division 13A, Part VII of the Act, set out how a court should deal with a contravention application depending upon whether the court concludes that the contraventions are serious or not. Subdivision E deals with contraventions without a reasonable excuse, which are described as less serious contraventions, and subdivision F is described as contraventions without reasonable excuse - more serious contraventions.
Section 70NEA of the Act provides that subdivision E applies if there has been an order made and the Court is satisfied that a person has contravened the order and there is no reasonable excuse, and then either subdivisions 2 or 3 of s 70NEA applies. Subsection (2) of s 70NEA provides that the subsection applies if no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or, under s 70NEB(1)(c), adjourned the proceedings in respect of the contravention.
Here, s 70NEA(2)(a) is engaged because no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the respondent of the orders made in May, 2021 or February, 2021. In circumstances where s 70NEA(2)(a) is engaged, I am satisfied that subdivision E should apply. I am not satisfied that the respondent has behaved in this case in a way that showed a serious disregard for his or her obligations under the primary order.
I reach that conclusion because of the six counts that have been admitted, three of them concern school reports for the children, but one concerns term 2 for 2021, another for term four 2021 and the last for term three 2022. It is not suggested, and it was not alleged and certainly was not admitted, that school reports for, for example, a continuous period of a year or consecutive terms were not provided. The specification of term two 2021, term four 2021 and term two 2022 demonstrate perhaps an ad hoc approach to compliance but nothing more than that.
As for the psychology report, it represents the lack of provision of one document, albeit an important one and a document that the applicant in this case was entitled to have much earlier than she did.
The other two matters concern advising the applicant of a change in the children’s schools and failure to notify her of a move out of the state of the children and the father. These are serious matters because notwithstanding the other terms of the orders made by the Court in February and May 2021, nonetheless, there is a modicum of information to which the mother should be privy under these orders and unless the father complies with his obligations to provide notification of various things, then even that information will be denied to her.
However, notwithstanding those things, I am satisfied I should deal with the matter under subdivision E of division 13A of Part VII of the Act.
As counsel pointed out, s 70NEB sets out the powers that the Court has available to it on this application. I can make an order directing the person who committed the current contravention to attend a post-separation parenting program. I can make an order providing for compensatory time if the order concerns a child spending time with a parent. I can make an order for an adjournment, which is not particularly relevant here. I can make an order requiring the person who committed the contravention to enter into a bond and I can make an order for the person who committed the current contravention if it is a contravention relating to a parent who has not been able to spend time with the child – I can make an order compensating that parent for any expenses incurred in the application or the failure to spend time with the child. I can make an order that persons who committed the contravention pay some or all of the costs of another party to the proceedings. And if I make no other order, I can order the person who brought the proceedings in relation to the contraventions to pay some or all of the costs of the person who committed the contraventions. So those seem to be the options.
In addition to that, there is a more general power under s 70NBA to vary parenting orders. But the authorities are clear that if a court is to embark on any significant variation of parenting orders during the contravention process, then the Court needs to conduct, effectively, a fresh parenting application so that the matters raised for consideration by s 60CC of the Act are properly considered in the context of the evidence of the case.
In her court book at page 666, the applicant sets out the orders that she seeks to be made in this case. She seeks that the children’s full and unredacted school reports be provided for the school years 2021, 2022 and 2023. The only ones that have not been provided are those to which I have referred. There is no mandate to make an order that she be provided with unredacted school reports, particularly for the 2022 and 2023 years. Notwithstanding her assertion that she knows where the children’s schools are, it is not information to which she ought to be privy under the orders in any event. I decline to make that order.
She seeks an order that the children’s school reports be sent directly to the mother by the school. I decline to make that order for the same reasons.
She seeks an order that an appropriately paid independent person, with costs incurred by the father, facilitate the children receiving birthday/Christmas cards and gifts and their ability to respond if they wish. I decline to make that order. If the mother wishes to send cards and gifts, there is a mechanism in the order. She just has to refrain from using FedEx and prefer Australia Post.
She seeks an order that the children attend therapy. There is no warrant in the material before me for such an order. I decline to make it. So, too, I decline to make an order for the release of the children’s Medicare statements to her. No case was made which would suggest that that is appropriate or necessary.
I will return to the question of the unredacted report as to B’s autism.
The mother seeks orders that the medical practitioners send their reports directly to the mother. I decline to make that order because it is not clear at all that there are any medical reports from any medical practitioners, and if there are or there will be, then the father is under an obligation to give them to the mother.
There is no warrant for the father to pay the mother’s expenses of $26,000. I have no idea how that sum is calculated.
The mother seeks an order that the father’s lawyers provided audited and forensically accounted set of statements at the sole expense of the lawyers of “our funds” that they held in their trust account during the Family Court proceedings. There is no basis in the evidence or argument for the making of such an order. I decline to do so.
I will return to the question of whether the father is to pay a bond. The mother seeks an order that if the father breaches the same orders again, the father should pay $35,000 for legal assistance for the mother’s future contravention application to pursue an application against the father’s continued conduct. I decline to make that order. Apart from anything else, the making of such an order does not seem to be authorised by the Act.
Finally, the mother seeks an order that the father is to attend an anger management, control issues and how to parent for one year course, which is to be reported to the mother and the Court. I decline to make that order. If that was thought necessary, then Williams J would have ordered it. Nothing in the material that I have been given today suggests that such an order is appropriate.
To return to the question of B’s autism report, I am attracted to the proposition that an unredacted copy of that report should be given to the mother provided it does not disclose any address details. I say I am attracted to it because it would be unlikely to provide any address details, given that it was authored on 6 December, 2021 and since then the father has moved to Queensland. It is difficult to see what information might be imparted from an unredacted report which would be of concern. Having said that, I do not consider that I have power to make the order. There is no head of power under s 70NEB that would permit the making of such an order. This is not a court with a roving commission to make whatever orders it thinks fit. It is confined and constrained by the statutes that clothe it with authority to make orders. Here, that is s 70NEB, which sets out my powers. Such an order does not come within that section.
As to the question of a bond, that raises the larger issue of what sanction, if any, should be imposed on the father. The six counts of contravention are objectively, in my view, not particularly serious. They are not contraventions which interfere with the relationship between a child and a parent. Under the orders made by Williams J, these children have no time with their mother. Just as she was critical of the father for not having some form of delivery address at which couriers could leave packages for the children, so, too, one might be critical of the mother for simply not using Australia Post at the very least for the provision of birthday cards for the children. There was no suggestion that she did that. In fact, she said she did not. The notion that the card must accompany the gift, whilst prima facie attractive, does not really answer the point.
So, objectively, the contraventions are not particularly serious. I accept that they are meaningful and serious to the mother, but that is not the test. The father has not been found to have contravened the orders in the past. There is no similar finding by a court. Many of the options available for sanction under s 70NEB(1) of the Act are not particularly apposite to this case. The contraventions do not concern a child who has not been able to spend time with one or other of his or her parents. So those options dealing with compensatory time and the reimbursement of expenses do not apply.
Really, the only options are threefold, I think. First is to do nothing, the second is to ask the father to enter into a bond, and the third is to make an order for costs.
As to the question of costs, the mother has represented herself in these proceedings. As a self‑represented litigant, she has no general entitlement to an order for costs. As to the question of bond, I have concluded that a bond is not necessary. There has been a significant sanction applied to the husband already and that is the significant legal fees that he has expended on this case. That is a significant financial impost in any language and so that is something to be taken into account. I am also confident that if it is the case that there are further breaches of the orders found to have occurred without reasonable excuse by a court, a court would be far less lenient.
In the circumstances, I am satisfied to record the findings of contravention in respect of the six counts I have identified and impose no further sanction. Otherwise, the application for contravention will be dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 3 August 2023
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