Crozier & Gounelle (No 2)
[2024] FedCFamC2F 1434
•18 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Crozier & Gounelle (No 2) [2024] FedCFamC2F 1434
File number(s): MLC 12722 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 September 2024 Catchwords: FAMILY LAW – contravention application – multiple allegations of contravention of orders – allegations predate the last contested final hearing – unnecessary to determine whether application an abuse of process – allegations not made out on balance of probabilities – some allegations de minimis – contravention application dismissed Legislation Evidence Act (2008) (Cth) s 144 Cases cited: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
Gounelle & Crozier [2023] FedCFamC2F 1229
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
Division: Division 2 Family Law Number of paragraphs: 37 Date of hearing: 18 September 2024 Place: Melbourne The Applicant: In Person The Respondent: In Person ORDERS
MLC 12722 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CROZIER
Applicant
AND: MR GOUNELLE
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Contravention Application filed by the Applicant on 1 November 2023 be and is dismissed.
2.All extant applications be otherwise 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
JUDGE O’SHANNESSY
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
In the matter of Crozier & Gounelle, the case concerns orders relating to X, who was born in 2011 and is 13 years of age.
The brief history is that back in 2017 by consent, X's parents determined that she would live week about. That did not go so well, and there was trouble between the parents. After that trouble, Court proceedings started again, and apart from the 2017 final orders, there were interim orders made in the next wave proceedings and 23 sets of orders were made by this Court between 2017 and the last “final” orders of 2023. The end result of the orders, that were made whilst Ms Crozier and X were on the lam, so to speak, was that the existing week about arrangements were suspended and after X was recovered pursuant to Court orders, she has lived with her father. The time with her mother was suspended.
Along the way, before X was recovered, an information order had been made and the police, caused information, and requests for assistance from the public, to be published on radio and TV, and I infer newspaper and social media. Apart from that, there were other comments published on social media by other persons or people purporting to be persons connected with X. Some of those comments were vulgar and crude, although arguably a small crime compared to heading off with X in breach of the existing court orders.
2023: Final Orders made
The final hearing ran over four days before Judge Dunkley, and that was 30 March 2023, 31 March 2023 and over 22 June 2023 and 23 June 2023: a total of four days. His Honour reserved his decision, and on 21 September 2023, handed down final orders as follows
THE COURT ORDERS THAT:
1.All prior parenting orders relevant to [X] born [in] 2011 ([X]) are discharged.
2. The father shall have sole parental responsibility for [X].
3. [X] shall live with her father.
4. [X] shall spend such time with her mother as accord with [X]’s view.
5.The mother shall be at liberty to send to [X], by prepaid post, letters and cards and gifts.
6.The maternal grandmother shall be at liberty to send to [X], by prepaid post, letters and cards and gifts.
7. The father shall keep the mother advised in writing of:
(a)[X]’s educational progress by forwarding [X]’s school reports to the mother.
(b)Outcomes of counselling received by [X] each 6 months, first notice 6 months from the date hereof.
(c) Any emergency or non-routine medical treatment received by [X].
(d) An address to which she can sent communication to [X].
8.Neither the father nor mother shall denigrate the other party or a member of that party’s family or household in the presence or hearing of [X] nor permit [X] to remain in the presence or hearing of any person who engages in such denigrative behaviour.
9.The father shall notify the mother and maternal grandmother of any change to [X]’s postal address within 48 hours of such change occurring.
10.The mother shall forthwith return to the father any current passports she holds which have been issued in [X]’s name.
11.All outstanding Applications and Responses are removed from the list of cases awaiting finalisation.
The anonymised judgment of Gounelle & Crozier [2023] FedCFamC2F 1229 was the decision of Judge Dunkley in the previous proceedings concerning these parties. Relevant passages of the reasons for judgment of 21 September 2023 are as follows.
57The mother during the period January to April 2022 perpetrated family violence on [X] as defined in s 4AB(2)(i) and (j).
58This period was undoubtedly traumatic for [X] and likely is the predominate cause of [X]’s entrenched dislike of her mother and estrangement from her.
…
62The mother displayed poor capabilities as a parent in the most recent period of withholding [X]’s, secreting her in the midst of “[K People]” and exposing [X] to their “erratic and extreme world view”. The trauma occasioned to [X] by having to pose for a “proof of life” picture and endorse her “fingerprint” on nonsensical documents is another example of the mother’s poor parenting capacity compounded by the lack of insight the mother still displays as to how negative and damaging emotionally this experience was for [X].
A week later: Contravention application filed
About a week later, on 28 September 2023, the well-drafted, articulate and helpfully set out contravention application of Ms Crozier was filed (and served) against Mr Gounelle. That contained 16 counts of an alleged contravention of the orders dating back to 2021, 2022 and 2023. Three of the charges or counts related to events that occurred after the final orders were made. I followed the procedure as set out in the rules, and I am satisfied that Mr Gounelle understood the charges against him.
I examined the evidence against Mr Gounelle, and found that there was a case to answer in regard to (what I see as) counts 1, 2, 8, 9, 10 and 12. I have found no case to answer in regard to counts 3, 4, 5, 6, 7, 9, 10 and 12. I have found no case to answer in regard to some of the counts on the basis of de minimis where, for example, on one occasion Mr Gounelle had turned up to collect X 10 minutes early, and on other occasions, he had provided a post office box address four days after the order, rather than two.
In the scheme of this case, I am satisfied that, to the extent those orders could be said to be breached without reasonable excuse, the issues were de minimis. The principal is, the law does not trouble itself with trifles. Any breach of a Court order is serious, but some proportionate lens must be brought to bear on what allegations are made.
The remaining counts
After the case to answer, I called Mr Gounelle to the witness box, where he was prepared to give his explanation in regard to those remaining counts.
In regard to count 1,
The father, without reasonable excuse, did not start the child’s counselling appointments until 5 months after the order then the father facilitated her appointments only sporadically every 3 or 4 weeks.
I accept his evidence that he tried immediately to obtain a counsellor. I am not satisfied Mr Gounelle breached the order.
In regard to count 2:
The father, without reasonable excuse, stopped taking the child to her counselling appointments.
I accept his evidence that he did not stop the counselling. Ms BB, the counsellor, stopped it. I am not satisfied Mr Gounelle breached the order.
In regard to count 8:
The respondent without reasonable excuse did not [subpoena] the child’s, [X], medical records for the other medical clinic the child was attending.
I accept that the subpoena that he issued only related to one General Practitioner clinic, not two as asserted by Ms Crozier, and that is in fact common ground. However, I am not satisfied on the balance of probabilities, that by subpoenaing (as ordered) what Mr Gounelle understood to be the major or most frequent clinic attended by X and not both clinics that X had attended was a breach of an order to subpoena “the” General Practitioner medical clinic as Mr Gounelle was commanded to by the relevant order.
I am not satisfied Mr Gounelle breached the order.
In regard to count 9:
The respondent without reasonable excuse did not [enroll] in and complete a Post Separation Parenting Course.
The respondent without reasonable excuse did not provide the mother with a copy of his certificate of completion of the Post Separation Parenting Course.
Mr Gounelle did not do the parenting course. But of course, as he explained, this was in COVID-19 times. He identified an appropriate parenting course, was not permitted to travel to City DD to participate in it (during the COVID lockdown) and eventually went online. Further, he then attended some courses online, and he concedes he did not get a completion certificate. He says his understanding was to get the certificate, he has to attend the in-person course, which he was prevented from doing. Further, he says:
“I raised this with the Court - or his lawyers did on his behalf on the next occasion, and nothing further came of it.”
I am not satisfied Mr Gounelle breached the order.
In regard to count 10:
The respondent, his associates, news agencies and publishing authorities without reasonable excuse published information about the proceedings without being approved prior by a Registrar of the Federal Circuit and Family Court of Australia and did not limit this said information to the directions of this honourable court.
The respondent and his associates without reasonable excuse published reports of the recovery without being authorised and without such report being approved by a Registrar of the Federal Circuit and Family Court of Australia.
This allegation relates to the time of the currency of the information order and is alleged to have occurred at the same time that the police were appropriately publicising what was regarded as the taking, if not the abduction, of X by Ms Crozier. Various comments were put on various social media pages. It is clear none of them, or none of the comments on social media, had been authorised by the Registrar of the Federal Circuit and Family Court of Australia. The actual order that was made is as follows.
1.Pursuant to s.121 of the Family Law Act 1975 (Cth) (Act), permission is granted to publish or broadcast:
(a) In any newspaper or periodical publication; and/or
(b) By electronic means, including a website
A notice or report of these proceedings approved prior to publication by a Registrar of the Federal Circuit and Family Court of Australia.
2.Any notice or report of these proceedings published or broadcast pursuant to Order 1 herein be limited to:
[the child’s details and photographs]
[the Mother’s details]
(g)The details of the recovery Order made by [a] Senior Judicial Registrar on 11 February 2022 (Recovery Order) authorising the Australian Federal Police and the State and Territory Police Forces and the Marshal of the Family Court of Australia to recover the Child and the status of the Recovery Order, being that the Recovery Order has not yet been executed;
(h)That the Child and the Mother were last seen in [Town E] in the State of Victoria [in] January 2022; and
(i)A request for information as to the whereabouts of the Child and/or the Mother.
I am not satisfied on the evidence that Mr Gounelle was engaged in assisting any of those persons “who posted” any matter in contravention of the order, or that he intended that the order be breached.
His evidence was, "I was keeping well out of it," and his evidence was that he told various people, who informed him of various publications, to be careful because he was concerned about breaching the order. I am not satisfied on the balance of probabilities that Mr Gounelle is responsible for any of those comments. Rather other people, who no doubt meant well, were actually breaching the order. The “wise guy”, “smart alec” or “know-all” comments that turn up on social media are notorious, and I take notice, pursuant to section 144 of the Evidence Act (2008) (Cth), that otherwise apparently sensible people, when presented with a keyboard and social media post crude, rude and vulgar comments. But when you otherwise meet the people face-to-face, they appear as normal people. In any event, I have to be satisfied that Mr Gounelle was involved in this, and I am not satisfied Mr Gounelle breached the order.
In regard to count 12:
The respondent without reasonable excuse refused to allow the applicant to spend time with the child, [X], in accordance with the orders in place.
This allegation occurred on the Mother's Day weekend, and I found a case to answer because Ms Crozier's affidavit set out the uncontroversial circumstances that on that day (that is, the Friday before the weekend) a breach occurred. The orders that were alleged to be breached were as follows.
6 May 2021 Orders
1.That the week-about arrangement provided for in the parenting Orders made 24 July 2017 remain in full force and effect.
24 July 2017
7.The child spend time with the parents as follows:
…
c.on the Mother’s Day weekend the father’s time with the child shall be suspended from 3.30pm on Friday with the mother to collect the child from school;
Mr Gounelle did attend the school and take X away that weekend. However, his evidence is, and I accept, that that was because of a mix-up in whose weekend it was, and he was not cognisant of the change of the order at the time.
It was brought to his attention by Ms Crozier late on the Saturday night, and he says that by agreement with her, X was delivered to Ms Crozier's for Mother's Day early on the Sunday (being Mother's Day). Whether or not that was by agreement, I am satisfied that on the actual Mother's Day, notwithstanding the entire weekend was to be swapped, Mr Gounelle did deliver X to Ms Crozier on Mother's Day, and I accept his evidence that the failure to strictly comply with the order was due to a mix-up between he and Ms Crozier, and that he did not intentionally breach the order. Therefore, I am not satisfied Mr Gounelle breached the order.
The allegations could have been ventilated at the Final Hearing
Had I been satisfied that he had breached any of these orders, (or that he did not have a reasonable excuse), it would have been necessary to me to look at the issue of whether it was appropriate that a week after the final orders, that there be a suite of allegations of the past. I accept Ms Crozier's evidence to me that the various matters that she complained of were not ventilated at the final hearing as she understood it, and she is unable to explain why. She was represented by lawyers at taxpayer expense, pursuant to the section 102NA scheme.
As I raised with Ms Crozier, the circumstance of lawyers in representing a party, being required to make a multitude of strategic and tactical decisions about what to pursue and what not to pursue, in order to paint their client in the best picture and achieve the orders sought as best they are able to on the available evidence. If every issue and every potential breach of an order was to be raised at a final hearing, rather than only the ones that the barrister thought would best advance his or her client's case, we would be here starting the cases that commenced in 1980. Lawyers are required to make tactical and forensic decisions.
I am satisfied that if all or any of these matters had been raised at the final hearing were they likely (if accepted), to advance Ms Crozier's case in some way. I am satisfied that many of the matters may well have been chosen not to have been ventilated by Ms Crozier's lawyers because to have done so would not have overall advanced her case. In particular, the matters that I have found to be de minimis or arising from a mutual misunderstanding, in the context of a case where one parent had taken and hidden the child was in breach of orders would not have assisted Ms Crozier’s case.
I am troubled at the circumstance where, immediately following the Court hearing, one of the parties has been able to ventilate what are, relative to X's age, ancient matters said to relate to X's welfare.
Nonetheless, I am not satisfied that Ms Crozier has been malevolent, or in any way intending to oppress Mr Gounelle, by bringing these charges. She has the unenviable position that following the escapade over the nine weeks until she was located in April 2022, she does not see or have a relationship with her daughter at all, and the counselling that was involved has not been successful in assisting that. I am satisfied Ms Crozier significantly grieves the loss of that relationship with X, and I am satisfied, on the evidence I have at this time, that Mr Gounelle has not breached the orders.
Abuse of process?
In any event I would have been required to seriously consider whether the bringing of the allegations were oppressive and an abuse of process in all of the circumstances. That is, what do we do with circumstances where someone does not bring up all of the matters against the other party that they could have in a Court case but bring it up subsequently. The law is clear. It is the duty of the third arm of government, being the Courts, to quell disputes, and not to permit ventilation of matters that can be raised on and on and on into the future.[1] However, in the end, I do not determine this case on the basis of oppression and abuse of process, because, as the parties sought it was convenient to deal with each of the allegations one by one in terms of whether there was a case to answer and in terms of whether I accepted that, on the balance of probabilities, that Mr Gounelle had breached the orders.
[1] See for example Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 and D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
I also note that Ms Crozier had gone to a lot of trouble to subpoena various witnesses who she intended to call to give oral evidence. Ultimately, I did not find that the evidence those witnesses might have given would have been material to the matters at issue and I did not facilitate Ms Crozier calling those witnesses. I note that Ms Crozier was and is highly articulate and her affidavit and the annexures thereto concisely and powerfully put forward her case, and I'm grateful to her for the diligence in that.
Ultimately, I am not satisfied that any of the contraventions alleged against Mr Gounelle are made out and all extant allegations in this contravention application are dismissed.
These orders do not deal with the other application Ms Crozier has brought since the 2023 final hearing before Judge Dunkley.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 October 2024
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