Finch

[2020] FamCA 172

FAMILY COURT OF AUSTRALIA

FINCH [2020] FamCA 172

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant father is subject to an order preventing him from commencing proceedings for orders pursuant to Part VII of the Family Law Act 1975 (Cth) without leave of the Court – Where the father applies for leave to file an Initiating Application seeking parenting orders – Where an application is made for leave to file an Application for Contravention –Where an application is made for leave to file an Application in a Case seeking parentage testing.

Family Law Act 1975 (Cth)

Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29
Watson & Morton (2007) FLC 93-331
Rice v Asplund (1979) FLC 90-725

APPLICANT: Mr Finch

FILE NUMBER: BRC 2788 of 2009

DATE DELIVERED: 20 March 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 January 2020

REPRESENTATION

THE APPLICANT: In person

Orders

IT IS ORDERED THAT

1. The Applicant has leave to file an Initiating Application to seek the following orders, being orders substantially in terms of paragraphs 2 – 9 of the Initiating Application dated 25 October 2019:

   (a)the father’s access pickup and drop-off location will be at the Town E train station starting the first Monday of all school term breaks.  From 11.00 am and to stop on the tenth day at 11.00 am; and

   (b)the end of school year Christmas break, access on the Christmas break will start on Boxing Day at 11.00 am and continue for 14 nights and stop on the fifteenth day at 11.00 am; and

   (c)the mother and father can decide on other days and other times for the father to have access with the child and in the event that no agreement can be reached the access made within these order shall prevail; and

   (d)the mother will make sure the child embarks on such train to travel to Town E train station and to immediately inform the father by SMS to the father’s mobile phone that the child is travelling for access; and

   (e)when the child arrives at the Town E train station the father will collect the child and immediately SMS the mother that the child has arrived; and

   (f)when the Applicant drops off the child to Town E train station at the end of access and when the child embarks the train travelling from Town E train station to the Region D, the father will SMS the mother immediately; and

   (g)when the child arrives at the Region D train station the mother will collect the child and immediately SMS the father that the child has disembarked the train and has arrived; and

   (h)when the child gains a driver’s license the child is confident to travel by vehicle to the father, the father will assist with fuel money.

2. Save as is provided for above, the Application in a Case filed 8 November 2019 is dismissed.

3. The Application in a Case filed 13 January 2020 and the Amended Application in a Case filed 14 January 2020 are dismissed.

4. The Applicant’s application for leave to commence proceedings by filing Applications for Contravention dated 6 January 2020, 9 January 2020 and 20 January 2020 is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

REASONS FOR JUDGMENT

1. On 7 March 2013, Forrest J ordered that Mr Finch not be permitted to commence any proceedings seeking orders pursuant to Part VII of the Family Law Act 1975 (Cth) in respect of the child, K, born … 2007, without first obtaining the leave of the Court (the March 2013 Order).

2. The March 2013 Order was made pursuant to s 118(1)(c) of the Act, which then relevantly provided that the Court may, at any stage of proceedings under the Act, if satisfied that the proceedings were frivolous or vexatious and if it considered appropriate, order that the person who instituted the proceedings should not, without leave of a court having jurisdiction under the Act, institute proceedings under the Act of the kind or kinds specified in the order.[1]

   [1] S 118(1)(c) Family Law Act1975 (Cth) as at March 2013.

3. The March 2013 Order also prescribed that any application filed by Mr Finch by which he sought leave to commence any proceedings seeking orders pursuant to Part VII of the Act not be served on K’s mother but be heard, at first instance, on an ex parte basis.

Overview

1. The following relevant matters assist in appreciating the context within which the current applications for leave to commence proceedings seeking parenting orders pursuant to Part VII of the Act, to commence contravention proceedings and to seek parentage testing orders fall to be determined:

   a)on 22 November 2011, Forrest J made final parenting orders in relation to then four year old K (the November 2011 Order) – these were made by consent during the hearing of the trial in relation to the same; and

   b)the November 2011 Order provided, amongst other things, for K’s parents to share equally parental responsibility for her; for her to live with her mother and spend time with her father each alternate weekend, with her father to collect her from a nominated place at the Region D at the start of the time and her mother to collect her from a nominated place in Suburb B at the conclusion of the time; and

   c)on 13 August 2012, the father filed an Amended Initiating Application seeking parenting orders in relation to K; and

   d)on 7 March 2013, for the reasons expressed in the Reasons for Judgment he delivered, Forrest J dismissed the father’s application to vary the November 2011 Order to change the place for changeover to Town E (said to be about midway between the parents’ residences) – the rationale advanced by the father for such a change was, it seems, that his physical and mental health difficulties impeded his ability to travel to the place nominated for changeover in the November 2011 Order; and

   e)subsequently to the making of the March 2013 Order, Forrest J granted the father leave to commence proceedings to seek to vary the March 2013 Order in three respects:

   i)the location of changeovers at the start and end of K’s time wither father; and

   ii)the father’s telephone communication with K; and

   iii)whether the mother should continue to be permitted to travel with K to Cambodia (as was provided for by the November 2011 Orders).

   f)on 28 October 2014, Forrest J made an interim parenting order (the October 2014 Order) by which his Honour varied the November 2011 Order in a number of ways, which included that:

   i)then seven year old K spend time with her father each alternate weekend, with her father to collect her from school on the Region D at the commencement of that time on Friday and return her to the school at the conclusion of that time on Monday morning; and 

   ii)then seven year old K be able to communicate with her father by telephone call each Wednesday and Sunday evening she was not in his care, via a mobile telephone the father had provided for her communication with him.

   g)his Honour also specifically ordered, on 28 October 2014, that “all previous orders in respect of the father’s ability to make applications in respect of parenting orders remain in force”;  and

   h)on 13 and 14 August 2015, Forrest J heard the trial, at which both the father and the mother appeared without legal representation (but the Independent Children’s Lawyer was represented by Counsel) and at which time the issues for determination were:

   i)whether the order prescribing equal shared parental responsibility should be varied to provide that the mother have sole parental responsibility for major long-term issues relating to K; and

   ii)whether K should continue to spend alternate weekends with her father and, if so, the location from which she should be collected by the father at the start of that time and the location to which she should be returned to her mother at the end of that time; and

   iii)how K’s telephone communication with her father should occur; and

   iv)whether any restriction should be placed on the mother’s ability to travel to Cambodia with K for holidays.

   i)in the Reasons for Judgment delivered on 21 August 2015 (the August 2015 Reasons), Forrest J noted that, despite the father’s urging, he had declined to reconsider the issue of K’s placement into her mother’s principal care and that he had also dismissed the father’s application to discharge the Independent Children’s Lawyer.

   j)the August 2015 Reasons contain Forrest J’s consideration of the evidence before him about the mental health of each of K’s parents; in the Reasons, Forrest J recorded, amongst other things, that:

   i)it was agreed that the father had not travelled to the Region D to collect K to spend alternate weekend time with him on any occasion after the October 2014 Order was made; and

   ii)it was agreed that K had spent a total of twenty days in her father’s care, in two separate blocks of time in the January and Easter school holidays respectively; and

   iii)it was agreed that K had spoken with her father on a weekly basis; and

   iv)during his final submissions, the father advised that he had changed his position – from seeking that K spend alternate weekends with him and that he and her mother meet approximately halfway between their residences to effect changeovers – to advance that K only spend time with him during school holidays.

   k)on 21 August 2015, Forrest J made further final parenting orders in relation to then eight year old K (the August 2015 Order) – these included:

   i)the discharge of all previous parenting orders; and

   ii)that the mother have sole parental responsibility for major long- term issues relating to K and that K live with her mother; and

   iii)that K spend time with her father for four consecutive nights during the September/October, Easter and June/July school holidays and for four consecutive nights on two occasions in January each year (during the summer school holidays), with changeovers to occur via a vacation care service at the Suburb M School at Suburb M;  and

   iv)that the father be at liberty to telephone K between 6.15 pm and 6.45 pm each Sunday and Wednesday on the mobile telephone number for the phone he had provided for her use and also on Father’s Day, Christmas Day, Easter Sunday and K’s birthday.

   l)on 24 June 2016, the Full Court dismissed the father’s appeal against the August 2015 Order; and

   m)on 6 September 2016, the father filed an Application in a Case (the September 2016 Application) by which he sought leave to commence parenting proceedings to seek new parenting orders in relation to K; and

   n)according to the Reasons for Judgment published by Forrest J on 22 September 2016 (in support of his Order dismissing the September 2016 Application):

   i)if granted leave to commence parenting proceedings, the orders the father intended to seek included:

   1.a discharge of all of the August 2015 Order; and

   2.the reinstatement of the November 2011 Order, save that changeover occur at a fast food restaurant in Town E;

   3.that the parents be restrained from approaching each other at changeovers; and

   4.that the parents use a communication book to communicate about K; and

   5.that both parents be restrained from commencing proceedings for protection orders in the State Magistrates Court unless the same were brought by the Queensland Police Service.

   (ii)the father told him that K had spent all of the time with him prescribed by the August 2015 Order.

   o)on 22 September 2016, Forrest J dismissed the September 2016 Application (the September 2016 Order); and

   p)on 27 September 2016, the father filed an appeal against the September 2016 Order; and

   q)on 30 November 2016, the Full Court dismissed the appeal against the September 2016 Order; and

   r)on 27 January 2017, the father filed an Application in a Case by which he sought, amongst other things, that he be granted leave to commence proceedings to seek the reinstatement of the November 2011 Order, with minor changes to the changeover location (the January 2017 Application); and

   s)on 27 March 2017, Berman J dismissed the January 2017 Application for the Reasons which he delivered ex tempore and ordered that the father was not granted leave to file an Initiating Application.

2. On 8 November 2019, the father filed an Application in a Case by which he sought, amongst other things, that he be granted leave to file an Initiating Application in which was particularised the parenting orders he would seek in relation to K.

3. The father subsequently filed another Applications in a Case[2] and an Amended Application in a Case[3] by which he sought leave to file, relevantly, Applications for Contravention.  He also sought leave at the hearing to file an Application in a Case[4] seeking that parentage testing orders be made in relation to K.

   [2] Filed 13 January 2020.

   [3] Filed 14 January 2020.

   [4] Dated 29 January 2020.

The Applications the subject of consideration

1. The father urged that, in considering his applications for leave to commence the various proceedings to which the same apply, I pay particular regard to the contents of correspondence authored by Mr U of T Lawyers, solicitors in South Australia whom he has engaged (although not in the family law proceedings) since early 2018.

2. This correspondence, dated 8 January 2020, proceeds on the erroneous assumption that the November 2011 Orders remain the operative parenting orders, when the same were discharged by the August 2015 Order. This error infects almost all of the assertions and conclusions contained within it: for example, that which asserts that, on the instructions provided by the father, there have been “a staggering number of contraventions of the 2011 orders” by the mother. Further, whilst there is reference in the correspondence to the March 2013 Order, there is no reference anywhere to the August 2015 Order.

Leave to file an Initiating Application

1. By Application in a Case filed on 8 November 2019, the father sought leave to file an Initiating Application, signed 25 October 2019 (the October 2019 Application).

2. The relief sought in the October 2019 Application may be summarised as follows:

   a)that the March 2013 Order and the August 2015 Order be vacated; and

   b)that K (now twelve years and eight months of age) live with her mother and spend time with her father:

   i)for nine consecutive nights in each of the Easter, June/July and September/October school holiday periods (from 11 am on the first Monday of the holiday until 11 am on the tenth day); and

   ii)for fourteen consecutive nights in the December/January school holiday period (from 11 am Boxing Day until 11 am on the fifteenth day); and

   c)that changeovers occur at the Town E train station; and

   d)the father to be at liberty to communicate with K from 6.00 pm on Wednesday and Sunday, on birthdays, “special holidays”, Father’s Day, Christmas Day and Easter time; and

   e)that K’s parents are prohibited from travelling internationally and nationally with her during school terms; and

   f)that K will attend V School from 2020 unless otherwise agreed between the parents in writing; and

   g)that both parents keep the other informed of residential addresses, mobile telephone numbers, any medical condition or significant health issue or illness K suffers and about the details of her treating medical or health practitioners; and

   h)that the parents not denigrate or insult the other in K’s presence or hearing.

3. Additionally, a Notation in the following terms is proposed: “That the parties intend to refrain from continuing any dispute concerning paternity of the child K.”  That a Notation is sought in such terms appears to me to be at odds with the relief subsequently sought by the father in another Application in a Case the subject of consideration.

The father’s supporting affidavit

1. Whilst the father expressed in his affidavit that he had ‘very serious doubts’ that his affidavit would be read in full, I have read the entirety of the body of the November 2019 affidavit in considering his application for leave to commence proceedings.  I have also read his affidavit filed 10 January 2020 in which the 8 January 2020 correspondence from T Lawyers may be found.

2. Much of the content of the father’s affidavit filed 8 November 2019 in support of his application for leave to commence proceedings for orders under Part VII of the Act could easily be described as “scandalous”; much of it is irrelevant to the consideration of whether he should now be granted leave to seek parenting orders for longer periods of holiday time with K and those other orders he would seek if granted the required leave.

3. However, it is also clear that, amongst the scandalous contents, the father outlines that he seeks to be able to press for a change to the “access location” – which I have taken to mean the location at which changeover occurs on the occasions each year K transitions into his care to spend time with him as provided for in the operative August 2015 Order.

4. Whilst it is clear from reference to Reasons for Judgment previously delivered in support of orders previously dismissing his previous attempts to revisit this issue on the basis of his medical condition, the father’s evidence in his November 2019 affidavit also specifically refers (at paragraphs 8 and 9 of the same) to assessments which he says he has undergone in, for example, September and October 2019 – well after the August 2015 hearing which resulted in the August 2015 Orders being made as they were and after Berman J dismissed his application for leave to commence proceedings on 27 March 2017.

5. However, despite the content of the proposed Initiating Application, it is clear from some aspects of page 14 of the November 2019 affidavit that, if granted leave to commence proceedings, the father would also seek “the reinstatement” of the November 2011 Order, albeit it with the following amendments:

   a)changeover occur at F Petrol Station on the P Highway, which is said to be halfway for the parents and if not there, then at McDonald’s restaurant at Town E; and

   b)that K spend time with him each alternate weekend, from 5.00 pm Friday until  5.00 pm Sunday; and

   c)that telephone communication “stay as current” (said to be Sunday night and Wednesday night between 6.15 pm and 7.30 pm) save for a change to the time during which the calls may occur such that it would be between 6.45 pm and 7.30 pm; and

   d)that ‘joint parental responsibility’ be accorded to the parents “as the respondent mother has no idea about the obligations regarding Sole Parental responsibility”; and

   e)“and the other provisions re access etc” (albeit that this phrase is not further particularised).

6. Further, at page 50 of the affidavit, the father outlines that, what he seeks by way of parenting order (if leave to commence proceedings is granted to him) is that the “Consent Orders made by FM Wilson to be reinstated” (which I have presumed, from the reference to the same on page 27 of the affidavit to be orders made by consent by Federal Magistrate Wilson on 24 September 2009[5] or as amended by order made on 8 October 2009[6]), with the following “inclusions/amendments”, which I summarise as follows:

   a)the holiday time be increased to nine nights in the school holidays other than the end of year school holidays, with the time then to be increased to fourteen nights; and

   b)the mother to be restrained from travelling with K both nationally and internationally during school times; and

   c)the father to be able to travel internationally and nationally with K on the same terms as those which apply to the mother, but for no longer than 21 days and only during the Christmas school holiday periods; and

   d)changeovers occur using the Town E and Region D train stations (in essence, with the mother to put K – once confident to travel alone – on the train at the Region D and the father to collect her from that train at the Town E train station at the start of her time with the father and vice versa at the conclusion of her time with her father); and

   e)the March 2013 Order be “removed”; and

   f)both parents have leave to issue Applications for Contravention when and if any have occurred; and

   g)the parents work as a team for the safe-keeping and well-being of K and put all past issues aside for her best interests.

   [5] Which provided, relevantly, that K live with her mother and spend time with her father every Saturday from 9:20 am until 6.00 pm, with changeovers to occur at the Region D train station until the mother obtained a driver’s licence (after which it was to occur as agreed) and that the father communicate within K by telephone once each day.

   [6] Which amended the earlier order for telephone communication between the father and K to permit the father to continue to try to speak with K by telephone on the same day until they were able to speak.

1. The father also gives evidence of the following:

   a)that the current place nominated for changeover in the August 2015 Order (namely, vacation care at the Suburb M State School) is no longer appropriate because K ceased attending that school at the end of 2019 and will be a student at the V School at Town W from 2020 onwards; and

   b)K is currently “exercising 7 nights and 8 days” with him on school breaks (that is, more than the time provided for in the August 2015 Order); and

   c)that he has not travelled to the current changeover location without assistance and, in essence, has been reliant on help to be able to do so.

Discussion

1. The March 2013 Order was made before the provisions contained within “Part XIB – Vexatious Proceedings” of the Act were enacted. As noted earlier, the March 2013 Order was made pursuant to then s 118 of the Act, which section was subsequently repealed. When the amended form of Rule 11.05 of the Family Law Rules (2004) commenced on the commencement of the existing provisions applying to vexatious proceedings, it did not contain subrule (4) – which previously provided that “The Court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.” That is, the current form of Rule 11.05 is absent any direction as to the test to be applied in determining applications for leave such as the present. This is, no doubt, because the test now to be applied is that prescribed in s 102QG(4) of the Act, which provides that the court may grant leave (in respect of an application under s 102QE for leave to institute proceedings) “only if it is satisfied the proceedings are not vexatious proceedings.”

2. Whilst transitional provisions were enacted to provide, relevantly, that Rule 11.05 in the form in which it was prior to the commencement of the current vexatious proceedings provisions [that is, a form which included subrule (4)] continued to apply[7] in cases in which orders had been made pursuant to the now repealed s 118 of the Act, that Schedule was repealed, effective 1 March 2018.[8]

   [7] See: Schedule 7, Family Law Rules (2004), inserted by SLI No 331 of 2012, Sch 2[4], effective 11 June 2013.

   [8] See: FRLI No F2018L00105 [Family Law Amendment (2018 Measures No. 1) Rules 2018] Sch 1, item 47 – on the basis that it was “no longer required”.

3. Consequently, the Rules now contain no guidance as to the test to be applied in determining the current applications for leave to commence proceedings.

4. Further, s 102Q(1) of the Act provides that, in Part XIB of the Act, the term ‘vexatious proceedings order’ means an order under subsection 102QB(2) of the Act. The definition does not include any reference to an order made under the now repealed s 118 of the Act: a position which differs from that in Rule 11.05 of the Family Law Rules (2004), which has been drafted specifically to apply if an order has been made under “paragraph” 118(1)(c) of the Act as in force immediately before the commencement of Schedule 3 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012.

5. Given the manner in which the phrase “vexatious proceeding order” has been defined, I consider that the March 2013 Order is not a “vexatious proceedings order”; consequently, given that it relies on the existence of a “vexatious proceedings order” for its operation, I also consider that s 102QE of the Act does not apply to the current applications for leave to commence proceedings. Similarly, given that both sections 102QE and 102QG of the Act apply to applications “under section 102QE for leave to institute proceedings”, neither of them apply either, in the current circumstances.

6. Consequently, it seems to me that the Act provides no guidance either about the test to be applied in determining the current applications for leave to commence proceedings. Given this, I propose to place particular weight upon the well-accepted principles that the right to commence proceedings in a court having the necessary jurisdiction is of fundamental importance in our legal system and that it is a serious matter to deprive a person of access to the courts of law.[9]

   [9] See the comments of Kirby J in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29; Watson & Morton (2007) FLC 93-331.

7. Further, it seems to me that such general principles may be regarded even more strongly in parenting cases, given that it has often been remarked that final  parenting orders are not “final” orders in the generally understood sense of that word (or as regarded in other civil litigation) because of the nature of the subject-matter to which they relate.

8. In concluding as I have that it is appropriate and proper to grant the father leave to commence proceedings to seek to vary the existing parenting orders – albeit leave that is limited to seeking orders of the nature particularised in the Order I will make granting him that leave – I have also taken into account the chronology of the parties’ previous appearances as summarised above; that the father has not sought leave to institute proceedings since Berman J dismissed his previous application on 27 March 2017; that K, who was just eight years of age when the August 2015 Order was made, is now about 12½ years of age; and that it appears likely that K no longer attends the school at which the vocation care used for changeover is located.

9. However, given the changeability of the orders the father proposed to seek if granted leave to commence proceedings for orders under Part VII of the Act, I do not propose to grant such leave carte blanche. Rather, I consider it appropriate that he be granted leave to institute parenting proceedings to seek to vary the existing order (the August 2015 Order)  vis-à-vis  the duration of time K spends with him during school holidays and the manner by which she transitions between her parents  to facilitate such time. 

10. It is also, of course, important to note that the granting of leave to institute proceedings seeking to vary existing parenting orders does not axiomatically mean that such proceedings, once instituted will inevitably require a further trial; the mother will, of course, have the opportunity to be heard about the newly commenced proceedings in whatever manner she considers appropriate, whether that be to advance the dismissal of the Initiating Application on the basis of the application of the so-called “principle” enunciated in Rice v Asplund[10] or to herself propose changes to the operative August 2015 Order.

    [10] (1979) FLC 90-725.

Leave to file an Application seeking orders for parentage testing

1. The father also sought leave to file an Application seeking the making of orders for parentage testing in relation to K; he said he sought to know K’s paternity and quite candidly stated that he would have to think about his future course of action if such testing resulted in the determination that he is not her father.

2. Section 69W(1) of the Act provides that if the parentage of a child is a question in issue in proceedings under the Act, the Court may make an order requiring a parentage testing procedure to be carried out on a person including a child for the purpose of obtaining information to assist in determining the parentage of the child. Given that the section specifically refers to the parentage of a child being a question in issue in proceedings under the Act, any application for an order pursuant to the same can only be made once such proceeding is on foot.

3. Whilst s 69W is in Subdivision E of Division 12 of Part VII of the Act, it does not seem to me that, if the father was granted leave to commence the proceedings he seeks to commence, the March 2013 Order would require him to be given leave to file an application for parentage testing orders pursuant to s 69W of the Act; I conclude this because such application would not constitute him ‘commencing’ any proceeding seeking orders pursuant to Part VII of the Act, but would involve him seeking orders within a proceeding that had, by leave, commenced.

Leave to commence contravention proceedings

1. The father has prepared the following Applications for Contravention, in respect of which he seeks leave:

   a)dated 6 January 2020, supported by an affidavit sworn 6 January 2020; and

   b)dated 9 January 2020; and

   c)dated 20 January 2020.

2. Rule 21.02(2) of the Family Law Rules (2004) relevantly provides that a person filing an application for contravention must file with it an affidavit that states the facts necessary to enable the court to make the orders sought in the application.

The Application dated 6 January 2020

1. The Application-Contravention dated 6 January 2020 alleges the following contraventions of the August 2015 Order:

   a)at 9.00 am on 25 December 2019, the mother contravened Orders 6, 7 and 8 of the August 2015 Order in that, without excuse, the Sim card supplied with the supplied mobile phone was removed from that phone and inserted into another phone; and

   b)at 6.15 pm on 1 January 2020, the mother contravened Orders 6, 7 and 8 of the August 2015 Order without lawful excuse in that the supplied mobile phone was turned off; and

   c)at 10.00 am on 1 January 2020, the mother contravened Orders 6, 7 and 8 of the August 2015 Order in that, without reasonable and lawful excuse, the supplied mobile phone was switched off and the father could not communicate with K; and

   d)at 9.00 am on 5 January 2020, the mother contravened Orders 6, 7 and 8 of the August 2015 Order in that, without lawful excuse, the supplied mobile phone was turned off; and

   e)at 10.00 am on 6 January 2020, the mother contravened Order 4 (ii) of the August 2015 Orders in that, without reasonable and lawful excuse, she refused to allow K to spend time with her father.

2. In his affidavit sworn on 6 January 2020, the father deposed that he had had no “access” since late September 2019 and no verbal communication with K since 30 December 2019. He gives evidence that communication with K has been “off and on since October 2019” after K spent seven nights with him; he also deposed to excuses having been provided that K was at a dinner location and that communication between them was cut short or a SMS message, represented as having originated with K, was sent to tell him that “I will call you later” but this never happened.

3. The father also deposes that, on 30 December 2019, K communicated with him about their time together – this being agreed to be on 3 January 2020; he said that was confirmed by SMS on 30 December 2019; on 4 January 2020, the mother sent him a SMS in which she said that K refused to enter the car “for access”. He also deposes that he had been having “good access” with K and good communication with her that involved “7 nights access and Wednesday and Sunday communication” prior to the mother entering into a relationship.

The Application dated 9 January 2020

1. The Application-Contravention dated 6 January 2020 alleges the following contraventions of the August 2015 Order:

   a)at 10.00 am on 8 January 2020, the mother contravened Orders 6, 7 and 8 of the August 2015 Order in that, without lawful excuse, the supplied mobile phone was turned off and the father could not exercise his legal obligations to communicate with K as per the Order; and

   b)at 6.15 pm on 8 January 2020, the mother contravened Orders 6, 7 and 8 of the August 2015 Order in that, without lawful excuse, the supplied mobile phone was turned off and the father could not exercise his legal obligations to communicate with K as per the Order.

2. This Application is supported by an affidavit by the father which was filed on 10 January 2020 in support of his applications for leave to commence proceedings for parenting orders and for contravention of the August 2015 parenting orders.

The Application dated 20 January 2020

1. The Application-Contravention dated 20 January 2020 alleges the following contraventions of the August 2015 Order:

   a)at 6.15 pm on 12 January 2020, the mother contravened Orders 6, 7 and 8 of the August 2015 Order in that, without lawful excuse, the supplied mobile phone was turned off and the father could not exercise his legal obligations to communicate with K as per the Order; and

   b)at 6.15 pm on 15 January 2020, the mother contravened Orders 6, 7 and 8 of the August 2015 Order in that, without lawful excuse, the supplied mobile phone was turned off and the father could not exercise his legal obligations to communicate with K as per the Order; and

   c)at 6.15 pm on 16 January 2020, the mother contravened Order 4 (ii) of the August 2015 Orders in that, without reasonable and lawful excuse, she refused to allow K to spend time wither father: it was asserted that the mother had never allowed the father “access” with K “for the second period starting 3^rd Thursday of January since the 21 August 2015 orders were delivered”; and

   d)at 6.15 pm on 19 January 2020, the mother contravened Orders 6, 7 and 8 of the August 2015 Order in that, without lawful excuse, the supplied mobile phone was turned off and the father could not exercise his legal obligations to communicate with K as per the Order.

2. During the hearing, the father informed the Court that the allegations relied on in support of the Applications for Contravention were the same allegations he had particularised in an Application for Contempt that had relatively recently been filed. He also advanced, it seemed to me quite properly, that, given this, his Applications for Contravention were not “needed”.

3. Given that I consider it would, prima facie, be an abuse of process to seek to prosecute both an application for contempt and applications for contravention in reliance on the same particularised allegations, I consider that the most appropriate course is simply to refuse the father’s application for leave to file the Applications for Contravention particularized above, rather than granting leave to institute the same and then dismissing them on the basis just expressed.

4. For the reasons expressed, I make orders in terms of those set out at the commencement of these Reasons.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 March 2020.

Associate:                 

Date:    20 March 2020