Ferrucci & Kovak
[2022] FedCFamC1F 1062
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ferrucci & Kovak [2022] FedCFamC1F 1062
File number(s): SYC 4141 of 2018 Judgment of: SMITH J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – Ex Tempore - Contravention hearing – Application by mother at close of father’s case – Application to dismiss three of the charges on the basis of no prima facie case – Interlocutory determination prior to mother being required to enter into evidence – Two of the three challenged charges dismissed – One charge allowed to stand on basis the evidence prima facie establishes to civil standard but not to criminal standard – Remaining charge allowed to proceed on the basis that it may only be argued proven to the civil standard with applicable remedies Legislation: Evidence Act 1995 (NSW) ss 140, 141 Division: Division 1 First Instance Number of paragraphs: 16 Date of hearing: 9 December 2022 Place: Newcastle Counsel for the Applicant: Mr Katsinas Solicitor for the Applicant: Jordan Djundja Lawyers Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Walter & Elliot Family Lawyers ORDERS
SYC 4141 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KOVAK
Applicant
AND: MS FERRUCCI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
9 DECEMBER 2022
THE COURT ORDERS THAT:
1.The matter be listed, part-heard, for hearing of the Contravention Application at 10:00 am on 6 April 2023.
AND THE COURT NOTES:
A.The Court had earlier available dates. However, the matter has progressed such that it would be unsuitable to require either party to change Counsel. The matter is listed part-heard for the first mutually available date.
B.The parties have been informed that the complexity of the matter will require reasons for judgment to be reduced to writing. In these circumstances, the parties were informed that a decision may not be available prior to the commencement of the final hearing.
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 Ferrucci & Kovak has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J
This matter is listed before me today for the hearing of a Contravention Application within the Family Law Act 1975 (Cth) (“the Act”) filed by the father on 7 October 2022.
He has read his Affidavit filed on 7 October 2022.
The alleged contraventions fall into two broad categories.
The first set of alleged contraventions deal with the allegation that the mother has contravened extant Orders of the Court made on 23 December 2020, as amended by consent on 23 February 2021, that she intentionally hindered or prevented without reasonable excuse the time to be spent between the subject children Y and Z with X and the father.
The three particularised contraventions which are pressed are in respect of breaches said to have occurred on 30 April 2022, 14 May 2022, and 25 June 2022. There were also allegations made in respect of alleged breaches on 23 July 2022 and 6 August 2022. The father accepted that these could not be established and these were withdrawn and dismissed.
The mother says that on the evidence led in the father’s case there is not a prima facie case in relation to the three remaining charges and that these should be dismissed now before she makes a decision about going into evidence.
There were also contravention allegations made on a second issue. The second category deals with allegations that the mother contravened Order 12 of the Orders in that she intentionally, and without reasonable excuse, contacted the child X by way of electronic means.
The particulars of these contraventions allege breaches on 24, 25, 27, 28 and 30 November 2021, and 9 December 2021, where it is said there were two occurrences on 9 December, and also on 28 May 2022. There was also originally an allegation in respect of 10 December 2021, but this was withdrawn and dismissed.
In relation to the contact by electronic means allegations, the mother admits the allegations, but says she has a reasonable excuse. She has filed and may read an affidavit dealing with her evidence on reasonable excuse in relation to these allegations.
The mother submitted, and I accept, that it is necessary to deal with the issue of whether or not the mother has a case to answer in relation to the three charges that intentionally hindered or prevented without reasonable excuse the time to be spent between the children and the father before she makes the decision of whether or not to go into evidence.
I have had an adjournment to consider the question. The decision needs to be made now so the hearing can continue. However, I am not in a position give my full reasons as the hearing needs to continue.
Having considered the matter, and for reasons which I will give in due course, I am not satisfied, in respect of the charges concerning the alleged breaches on 14 May 2022 or 25 June 2022, that the father’s evidence reaches the civil standard set out in section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”), taking into account the gravity of the issues and consequences. It certainly does not meet the criminal standard of beyond reasonable doubt set out in section 141 of the Evidence Act, which would be relevant depending on the orders sought. Consequently, I dismiss the charges in relation to the alleged breaches on 14 May 2022 or 25 June 2022.
In respect of the charge in relation to the alleged breach on 30 April 2022, I am not satisfied that the evidence reaches the criminal standard.
However, having considered the material and the charge, I am satisfied, by reference to the criteria articulated in section 140 of the Evidence Act, and having particular reference to the nature of the cause of action, the nature of the subject matter of the proceedings and the gravity of the matters alleged, and in particular, that these are a form of penalty proceedings, I am satisfied that the father’s evidence reaches the civil standard of proof, and that it is appropriate for this one charge of the first set of charges to stand.
As a matter of fairness to the mother, where the evidence against her prima facie only reaches the civil standard, I will allow the charge to proceed on the basis that it may ultimately be found proven to the civil standard, but I will not allow the father to seek a finding of proof the criminal standard on this charge. That will limit the possible penalties and remedies to those that are available if the contravention is proved to the civil standard, and the penalties in the Act will not be available if the criminal standard is required to be reached.
Those are my reasons. The detailed reasons for why I have reached those findings will be included in due course as part of the final written decision.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 23 December 2022
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