Dickens and Dickens

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2013] FamCA 813

FAMILY LAW – husband seeks to have the wife dealt with in relation to contempt pursuant to s112AP of the Family Law Act (1975) (Cth) and, in a separate application, for 16 counts of contravention

APPLICANT:

Mr Dickens

RESPONDENT:

Ms Dickens

FILE NUMBER:

SYC

739

2010

DATE DELIVERED:

14 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

11 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Harper

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

IT IS ORDERED

That the application of the husband for orders pursuant to s112AP of the Family Law Act 1975 (Cth) be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:

Mr Dickens

Applicant

And

Ms Dickens

Respondent

REASONS FOR JUDGMENT

Before the court are proceedings instituted by Mr Dickens (“the husband”) asking that Ms Dickens (“the wife”) be dealt with for alleged breaches of orders relating to their children, B born in 2001 (“B”) and C born in 2003 (“C”).
The husband seeks to have the wife dealt with in relation to contempt pursuant to s112AP of the Family Law Act (1975) (Cth) and, in a separate application filed the same day, for 16 counts of contravention.

THE CONTEMPT PROCEEDINGS

By an amended application filed 3 October 2013, supported by an affidavit sworn by him on 2 October 2013, the husband asks that the wife be dealt with for eight counts of contempt pursuant to section 112AP of the Family Law Act.
Section 112AP is set out in full below;
Section 112AP provides:
112AP Contempt
(1)Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
(1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.
(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
(5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.
(6)The court may make an order for:
(a) punishment on terms;
(b) suspension of punishment; or
(c) the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person’s discharge before the expiry of that term.
(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first‑mentioned person’s liability to make the payment.
(9)In this section:
order under this Act means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA.
The principles to be applied in the conduct of an application pursuant to s112AP were set out by Aldridge J. in Ganem & Ganem (No 2) [2013] FamCA 257. I respectfully adopt his Honour’s formulation:

Principles and procedure to be applied

9.I take the principles and procedure to be applied to derive from the sections set out above, the general law and Rule 21.08 of the Family Law Rules.
10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195;(2002) FLC 93-107)
11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:
·The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93-267 at 80, 536)
·The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91-729 at 75, 294)
·The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent’s actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.
·The act must involve a flagrant challenge to the authority of the court. In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:
The concept of a “flagrant challenge” involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92 – 496 the Full Court held (at Fam LR 175; FLR 81, 162): “the use of the term “flagrant challenge” … 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 a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied.

12.Rule 21.08 provides that on the hearing of a contempt application the court must:
(a)inform the respondent of the allegation;
(b)ask the respondent whether the respondent wishes to admit or deny the allegations;
(c)hearing evidence supporting the allegation;
(d)ask the respondent to state the response to the allegation;
(e)hearing the evidence from the respondent; and
(f)determine the case.

The first statement of alleged contempt is that the wife’s partner, Mr D was present at changeover on 10 July 2013. Mr D was not served with the application. The statement does not allege contempt against the wife. I declined to charge the wife with this count.
The second statement of alleged contempt is that Mr D disciplined and punished C on 10 July 2013. This statement does not allege contempt against the wife. I declined to charge the wife with this count.
The third statement of alleged contempt is that Mr D was present at changeover on 13 July 2013. For the reasons set out above, I declined to charge the wife on this count.
The fourth statement of alleged contempt is that Mr D denigrated the husband and used obscene language in the presence of the child C and his brother on 13 July. For the reasons set out above, I declined to charge the wife with this count.
The fifth statement of alleged contempt is that the wife prevented C from communicating with the husband by telephone on 28 July 2013. The wife was charged with this count and denied the allegation. This allegation relates to order 9 made on 20 December 2012.
The sixth statement of alleged contempt is that the wife prevented C from communicating with the husband by telephone on 5 August 2013. The wife was charged with this count and denied the allegation. This allegation relates to order 9 made on 20 December 2012.
The seventh statement of alleged contempt is that the wife did not deliver C to the husband’s address on 21 September 2013. The wife was charged with this count and denied the allegation. This allegation relates to Order 4.b. made 7 June 2013.
The eighth statement of alleged contempt is that the wife did not facilitate C’s spending time with the husband on 25 September 2013. The wife was charged with this count and denied the allegation. This allegation relates to Order 4.a. made 7 June 2013.
The orders to which the allegations relate are set out below:
Orders of 20 December 2011:
9.Each party ensure each child has liberty to telephone or communicate electronically with the other party at any reasonable time.
Orders of 7 June 2013:
4.That the father spend time with [C] born … 2003 (“[C]”) as follows:
a.Each Wednesday from after school or 3.15 pm until 7.30 pm with the father to collect [C] from school at the commencement of time and return [C] to the mother’s residence at the conclusion of time;
b.Each Saturday from 9.00 am to 8.00 pm with the mother to deliver [C] to the father’s residence at the commencement of time and the father to return [C] to the mother’s residence at the conclusion of time.
After the wife had been charged, objections were taken to the admissibility of portions of the affidavit material relied upon by the husband.
I then heard submissions about whether the husband had established a prima facie case in relation to each charge.
The findings in relation to each charge are set out below:
That the wife prevented C from communicating with the husband by telephone on 28 July 2013.
The evidence in relation to this charge is set out at paragraph 14 of the husband’s affidavit. The evidence does not establish what telephone number the husband telephoned. The evidence does not establish that the call was at a reasonable time having regard to the children’s activities. The evidence does not establish that the wife did any act to prevent C from communicating with the husband by telephone on this day. Thus there is no evidence that the wife intentionally prevented C from communicating with his father. A prima facie case is not established in relation to this charge.
That the wife prevented C from communicating with the husband by telephone on 5 August 2013
The evidence in relation to this charge is found at paragraph 18 of the husband’s affidavit. The evidence does not establish what telephone number the husband telephoned. The evidence does not establish that the call was at a reasonable time having regard to the children’s activities. The evidence does not establish that the wife did any act to prevent C from communicating with the husband by telephone on this day. Thus there is no evidence that the wife intentionally prevented C from communicating with his father. A prima facie case is not established in relation to this charge.
That the wife did not deliver C to the husband’s address on 21 September 2013.
The evidence in relation to this charge is found at paragraphs 21 to 30 of the husband’s affidavit. The wife wished to take the children to E Town on holidays during a period when C, according to the orders, was to spend time with his father each Saturday from 9.00am until 8.00pm and each Wednesday afternoon. The orders make no provision for the time to be suspended during holiday periods.
On 28 August 2013, the wife’s solicitor wrote to the father’s solicitor proposing that the husband’s time with C be suspended on 21 September and 25 September to allow the wife to take the children on school holidays for a week. She proposed make up time on 3 October and 4 October. The husband instructed his solicitor to refuse the request.
On 10 September 2013 the wife’s solicitor wrote a further letter to the husband’s solicitor stating that no response had been received to her request. The wife’s request was reiterated. It was explained that the wife needed to arrange vacation care for the children and asserted that, during the marriage, the children were cared for by their grandparents during holidays as both parents worked. The letter stated that the wife would seek orders in relation to holiday time if consent were not forthcoming.
The response from the husband’s solicitors was dated 10 September and may have crossed with the letter from the wife’s solicitors. The husband did not agree with the wife’s proposals and gave, as his reason, that he had made his own arrangements for the holidays.
By letter dated 10 September 2013, the wife’s solicitor responded, pointing out that the wife needed to make arrangements for the children’s care during school holidays in circumstances where only C was to spend time with the husband and only on Saturday and Wednesday afternoon. The husband was asked to reconsider his position.
By letter dated 11 September 2013 the husband’s solicitor replied and advised that a conference had been arranged with the husband to seek his instructions.
By letter dated 16 September 2013, the husband’s solicitor advised the wife’s solicitor that the husband did not consent to the proposed changes.
C was not delivered to the husband in accordance with the order. The wife sent a text message to the husband saying “[Mr Dickens] – as previously advised the boys and I are in [E Town] celebrating our combined birthdays”.
I am satisfied that the wife knew the terms of the relevant orders and that she deliberately and intentionally took the children to E Town. However, having regard to her attempts to negotiate make-up time with the husband, I do not consider that her actions constituted a flagrant challenge to the authority of the court, being conduct of an exceptional, striking or repeated nature.
I therefore find that no prima facie case has been established in relation to this charge.
That the wife did not facilitate C’ spending time with the husband on 25 September 2013
Other than two matters to which I refer, the evidence in relation to this charge is set out in relation to the previous charge. The orders require the father to collect C from the school on Wednesdays. He gave no evidence that he attended at the school to collect C or that any alternate arrangement had been made with the mother. Emails annexed to the father’s affidavit contain an assertion by the wife that she telephoned the husband on 25 September 2013 to make arrangements to deliver C to him on that day. She says, and the husband agrees, that he hung up and refused to speak to her. The husband’s evidence is that he asked the mother to text or email him and she did not do so. I am satisfied that the wife knew the terms of the relevant orders. By her telephone call to the husband on 25 September 2013 she made an attempt to comply with the orders. Therefore, I do not consider that her actions constituted a flagrant challenge to the authority of the court, being conduct of an exceptional, striking or repeated nature.
I find that no prima facie case has been established to this charge.
No prima facie case having been established in relation to any charge, the husband’s application pursuant to s112AP of the Family Law Act is dismissed.

CONTRAVENTION

The contravention application related to both of the children. The orders which were said to have been contravened are:
Orders made 20 December 2011 being orders 9 and 13(a);
Orders made 10 September 2012 being order 6;
Orders made 7 June 2013 being orders 3, 4.a. and 6.
Those orders are set out below:
Orders made 20 December 2011:
4.The mother have sole parental responsibility for the children on condition that:
a.Unless an emergency, the mother advise the father in writing at least a month in advance of any major decision she proposes to make, with reasons for her proposed decision; and
b.The mother have regard to any issues raised by the father in response, before finalising her decision; and
c.The mother notify the father in writing when the final decision has been made.
8.Until the father has complied with orders 5-7, the children spend time with the father as follows:
a.During school terms, on each alternate weekend from after school Friday until before school on Monday commencing on the second weekend of each school term in even numbered years, and the first weekend of each school term in odd numbered years;
b.On Fathers’ Day from 9.00 am until 5.00 pm;
c.On each of the children’s birthdays, in the event that the birthday falls on a school day, from the conclusion of school until 6.00 pm or in the event that the birthday falls on a non-school day, from 12 noon until 5.00 pm;
d.For half of the school holiday periods at the end of Terms 1, 2 and 3, being the second half in 2012 and all even numbered years and the first half in 2013 and all odd numbered years, commencing at 10.00 am on the first full day of the holidays and ending at 5.00 pm on the last full day of the holidays, with changeover to occur at 6.00 pm on the middle of those two days, unless otherwise agreed;
e.During the Christmas school holiday period in 2011/2012, from 6.00 pm on Sunday 15 January 2012 until 6.00 pm on Sunday 29 January 2012;
f.Except as provided in Order 8e, for half of the Christmas school holiday period, being the first half in the 2012/13 school holiday period and alternate years thereafter, and the second half in the 2013/14 school holiday period and alternate years thereafter, commencing at 10.00 am on the first full day of the holidays (deemed Day 1 of the holidays) and ending at 5.00 pm on the last Sunday of the school holidays (deemed the last day), with changeover to take place at 6.00 pm on the middle day between Day 1 and the last day, or if two middle days, at 6.00 pm on the first of the two middle days, unless otherwise agreed; and
g.At any other or alternative time as agreed between the parties.
9.Each party ensure each child has liberty to telephone or communicate electronically with the other party at any reasonable time.
13(a)Making any negative remarks about the other party or any member of the other party’s family or any partner of either party, in the presence and/or hearing of the Children, such Order to include verbal, written or electronic means including email and text message.
Orders made 10 September 2012:
6.That in exercising telephone communication between the children and the father, the mother will ensure that the children speak to the father in private.
Orders made 7 June 2013
3.That the mother use her best endeavours to encourage B to spend time with and communicate with the father.
4.That the father spend time with [C] born … 2003 (“[C]”) as follows:
a.Each Wednesday from after school or 3.15 pm until 7.30 pm with the father to collect [C] from school at the commencement of time and return [C] to the mother’s residence at the conclusion of time.
6.That for the purpose of order 5 the mother shall provide the father with written notice of the time and venue of [C’s] sporting commitments as soon as that information is available.
At the commencement of the proceedings in relation to contravention, the charges were formulated. Some of the allegations contained in the application were not capable of basing charges against the wife and were not put to her.
Those charges are:
That on 19 February 2013 Mr D swore at the husband in the presence of C and disciplined and punished C.
It was not alleged that the wife had contravened any order and Mr D was not served with the application. No charge was put to the wife in relation to this allegation.
That in July 2012 the wife distributed the Reasons for Judgement released 20 December 2011 without permission of the Court.
Part VII – Division 13A of the Family Law Act deals with contravention of “orders under this Act affecting children”. Section 121 deals with the restrictions on publication of information in relation to court proceedings. The publication of a judgement, as alleged, does not contravene an order affecting children. Whether the publication of orders and reasons for judgement constitutes an offence pursuant to s121 need not be determined here. Section 121 has its own scheme for punishment and does not fall within Division 13A. Offences under s 121 are not prosecuted in the Family Court of Australia. Accordingly the wife was not charged with this count.
That on 5 February 2012 the wife’s partner Mr D swore at the husband and at C and made negative remarks about the husband and C whilst the husband and C were speaking on the telephone.
It was not alleged that the wife had contravened any order and Mr D was not served with the application. No charge was put to the wife in relation to this allegation.

The charges which were put to the wife are set out below. In relation to each charge she was asked whether she admitted the allegation, admitted the allegation but relied upon reasonable excuse, or denied the allegation. For convenience, the wife’s response to each charge is set out under the charge.

CHARGES
On 2 January 2013 the wife without reasonable excuse selected a new school for the children without consulting the husband in writing one month in advance, without providing him with reasons for her decision, without considering his input and without notifying him of her decision.
Denied
That on 5 April 2012 the wife without reasonable excuse caused the children to engage in psychiatrist assessment and therapy with Dr F without consulting the husband in writing one month in advance, without providing him with the reasons for her decision, without considering his input and without notifying him after she made the decision.
Denied
That on 3 January 2013 the wife without reasonable excuse changed her residence from G Street, Suburb H to I Street, Suburb J without consulting the husband in writing one month in advance, without providing the husband with the reasons for her decision, without considering the husband’s input and without notifying the husband after she had made the decision.
Denied
That on 1 June 2012 the wife without reasonable excuse refused to allow the husband to spend time with C and B.
Admitted but with a reasonable excuse
That on 13 April 2013 the wife without reasonable excuse refused to allow the husband to spend time with C and B.
Admitted but with a reasonable excuse
That on 3 May 2013 the wife without reasonable excuse refused to allow the husband to spend time with C and B.
Admitted but with a reasonable excuse
That on 26 June 2013 the wife without reasonable excuse refused to allow the husband’s friend to collect C from school
Denied
That in March 2012 the wife made negative remarks about the husband in the presence of C.
Denied
That on 21 February 2013 the wife, without reasonable excuse, did not allow B to communicate with the husband on the telephone in privacy and interfered with the telephone communication.
Denied
That on 10 May 2013 the wife without reasonable excuse did not allow B to communicate with the husband on the telephone in privacy and interfered with their communication.
Denied
That on 30 June 2013 the wife without reasonable excuse prevented C from communicating with the husband on the telephone.
Denied
That on 13 June 2013 the wife without reasonable excuse did not inform the husband of C’ sporting commitments as soon as the information was made available to her.
Denied
PRIMA FACIE CASE

After the wife was charged, objections were taken to the husband’s affidavit material in support of his allegations. Counsel for the wife indicated that, if the father intended to seek by way of penalty, the imposition of a fine or bond, then he would make an application for the rules of evidence to apply. The father told the court that the only penalties he would be seeking would be “make-up time” or a variation of the orders. In those circumstances, the application was not pressed. The parties were asked to address the court in relation to the establishment of a prima facie case. It was then necessary to determine, in relation to each charge, whether the husband had established a prima facie case, noting that the husband must establish that there is a case for the wife to answer, not that the case is proven on the evidence. The charges are here dealt with seriatum.
That on 2 January 2013 the wife without reasonable excuse selected a new school for the children without consulting the husband in writing one month in advance, without providing him with reasons for her decision, without considering his input and without notifying him of her decision.
The orders made 20 December 2011 require the mother to advise the father in writing at least a month in advance of any major decision. The choice of school for the children falls within the category of major decision. The evidence in relation to this allegation is found at paragraph 9 of the husband’s affidavit. The wife enrolled the children at a new school before the start of the first term in 2013. The husband gives evidence that he was neither advised nor consulted, although it appears from the emails annexed to his affidavit that some discussions may have taken place about the children’s schooling as the wife mentions the husband’s proposal of K School as a suitable school. The husband has established a prima facie case in relation to this allegation.
That on 5 April 2012 the wife without reasonable excuse caused the children to engage in psychiatrist assessment and therapy with Dr F without consulting the husband in writing one month in advance, without providing him with the reasons for her decision, without considering his input and without notifying him after she made the decision.
The evidence in relation to this allegation is found at paragraph 10 of the husband’s affidavit. The engagement of a counsellor for the children and the facilitation of their involvement with a therapist falls within the category of major decision. The father gives evidence that the children first saw the therapist on 5 April 2012. He was not advised until after that date. He was not consulted. The husband has established a prima facie case in relation to this allegation.
That on 3 January 2013 the wife without reasonable excuse changed her residence from G Street, Suburb H to I Street, Suburb J without consulting the husband in writing one month in advance, without providing the husband with the reasons for her decision, without considering the husband’s input and without notifying the husband after she had made the decision.
The evidence in relation to this allegation is found at paragraph 11 of the husband’s affidavit. The wife by virtue of the orders made 4 December 2011, has sole parental responsibility for the children. I interpret that order to infer that the wife has the right to make decisions in relation to the major, long-term issues relating to the children. Major, long-term decisions are defined in s4 of the Family Law Act in the following way;
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
The wife moved with the children from Suburb H to live with her new partner in Suburb J. The husband lives in Suburb K. There is no evidence that the change in residence “made it significantly more difficult for the child to spend time with” the husband. No prima facie case is established in relation to this allegation.
That on 1 June 2012 the wife without reasonable excuse refused to allow the husband to spend time with C and B.
The evidence in relation to this allegation is found at paragraphs 15 to 22 of the husband’s affidavit. On 2 May 2012, the husband was arrested and charged with breaching an Apprehended Domestic Violence Order (ADVO). He was placed on bail conditions not to approach the children but those conditions were lifted on 17 May 2012. The wife did not then comply with the orders of 4 December 2011 in relation to the children’s spending time with the husband on 1 June 2012. The husband has established a prima facie case in relation to this allegation.
That on 13 April 2013 the wife without reasonable excuse refused to allow the husband to spend time with C and B.
The evidence in relation to this allegation is found at paragraphs 25 to 30 of the husband’s affidavit. The email from the wife to the husband dated 12 April 2013, which is annexure “K” establishes that the wife was aware that the children were due to be with the husband for holiday time in accordance with the orders.
The wife delivered the children to school on 12 April, expecting that they would be collected by the father at the end of the school day to start holiday time with him.
That afternoon, the children left their school and went to the police station at Suburb L. The police contacted the wife and told her the children were at the station.
The wife emailed the husband and invited to attend counselling at UNIFAM to discuss the incident.
On 13 April 2013, the wife emailed the husband and explained the reasons for the children’s non-attendance. The husband responded on the same day stating that he would institute proceedings for a recovery order.
On 16 April 2013 the husband filed and served an Application in a Case returnable 22 April 2013.
On 18 April 2013 the wife’s solicitors proposed that the children spend the following week with the husband, that the parties attend mediation and that the Application in a Case be withdrawn.
On 22 April 2013 orders were made by consent. I infer from the affidavit that the children were delivered to the husband on 21 April.
The husband consented to a variation of the order after the alleged contravention and before instituting these proceedings.
In those circumstances the husband has not established a prima facie case in relation to this allegation.
That on 3 May 2013 the wife without reasonable excuse refused to allow the husband to spend time with C and B.
The evidence in relation to this allegation is found at paragraphs 37 and 38 of the husband’s affidavit. On 1 May 2013, the wife’s solicitors wrote to the husband’s solicitors proposing a suspension of the current orders. On 2 May 2013 the husband sent an email to the wife’s solicitors stating that he did not consent to the suspension. The children were to spend time with the father from afterschool on Friday 3 May. They did not attend school on that day and were not available for collection by the husband. The husband has established a prima facie case in relation to this allegation.
That on 26 June 2013 the wife without reasonable excuse refused to allow the husband’s friend to collect C from school
The evidence in relation to this allegation is contained in paragraphs 41 and 42 of the husband’s affidavit. The father arranged for a friend, Mr M, to collect the children from school. The mother advised the father, through her solicitor, that she did not consent to that arrangement. When Mr M arrived at the school, he was told by the school secretary, that the current orders did not permit Mr M to collect the children. Although that decision may have been prompted by something the mother said to the school secretary, it was not the mother who prevented C from being collected by Mr M. The husband subsequently collected C from after school care at 4.00pm. The husband has not established a prima facie case in relation to this allegation.
That in March 2012 the wife made negative remarks about the husband in the presence of C.
The orders provide for each party to be restrained from making negative remarks about the other in the presence or hearing of the children. The evidence in relation to this allegation is found in paragraph 45 of the husband’s affidavit. The husband sets out a conversation which took place between him and C between 6 March 2013 and 8 March 2013 where C relates a number of negative things alleged to have been said to him by the wife.
Proceedings in relation to the contravention of orders relating to children fall within Division 13A of Part VII of the Family Law Act. These proceedings are therefore wholly within Part VII and the provisions of Division 12A apply. Hearsay evidence is therefore admissible, although, ultimately, the court must determine what weight it will be given. The husband has established a prima facie case in relation to this allegation.
That on 21 February 2013 the wife, without reasonable excuse, did not allow B to communicate with the husband on the telephone in privacy and interfered with the telephone communication.
The orders require the mother to ensure that the children speak to the father in private. The evidence in relation to this allegation is found at paragraph 48 of the husband’s affidavit. On 21 February 2013 the father spoke to C and B on the telephone. The father’s friend Ms N spoke to C but no to B. After the conversation, the father received a text message signed by B. The message read “Dad why didn’t [Ms N] speak to me tonight? Can you please get four movie tickets for [O] mum me and [C]”. It was signed “[B]”. Other than the father’s belief, there is no evidence that the mother was the author of the text message. There is no evidence that the mother interfered with the telephone conversation or that she did not allow the children privacy. The husband has not established a prima facie case in relation to this allegation.
That on 10 May 2013 the wife without reasonable excuse did not allow B to communicate with the husband on the telephone in privacy and interfered with their communication.
On 10 May 2013 the husband spoke to both of the children on the telephone. After the call he received a text signed by B. The message read:
Dad – I do not want to speak to [Ms N] do not put her on the phone if you don’t like what I say to you. I do not appreciate you being mean and smart to me i ran away from you because I don’t like being with you. Tell [Ms N] to look after her own grandchildren we already have two grandparents nanny [Ms P] and damah. Tell her to mind her own business. If you don’t get it don’t speak to me either. [B].
Other than the father’s belief, there is no evidence that the mother was the author of the text message. There is no evidence that the mother interfered with the telephone conversation or that she did not allow the children privacy. The husband has not established a prima facie case in relation to this allegation.
That on 30 June 2013 the wife without reasonable excuse prevented C from communicating with the husband on the telephone.
The orders do not provide for telephone calls to the children to take place at a specified time, but require the parties to allow the children to telephone or communicate with each parent at any reasonable time. The husband’s evidence in relation to this allegation is found at paragraph 50 of his affidavit. The husband called C on two occasions that evening but the telephone was not answered. He also sent two text messages to which C did not respond. There is no evidence that the wife prevented C from communicating with the husband. The husband has not established a prima facie case in relation this allegation.
That on 13 June 2013 the wife without reasonable excuse did not inform the husband of C’s sporting commitments as soon as the information was made available to her.
The orders require the wife to provide the husband with written notice of the time and venue of C’s sporting commitments as soon as that information is available. The evidence in relation to this allegation is found at paragraph 52 of the husband’s affidavit. The husband alleges that the wife was informed by email of the schedule of games and training on 13 June 2013 but that she did not advise him of the contents until 26 June 2013, some 13 days after she received the email. The email clearly states on its face that it was sent to a group of people which included both the wife and the husband.
In his oral submissions, the husband said that his complaint was that the wife did not advise him, in a timely way, that training on 26 June 2013 had been cancelled. The husband conceded that there was no evidence to establish when the wife became aware that training had been cancelled. The husband has not established a prima facie case in relation to this allegation.
The husband having established a prima facie case in relation to some of the allegations, directions will be made for the filing of the wife’s material and the continuation of the hearing.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 October 2013.

Associate:

Date: 14 October 2013

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established