Finch & Shibo - [2021] FamCA 353

FAMILY COURT OF AUSTRALIA
Finch & Shibo [2021] FamCA 353

File number(s): BRC 2788 of 2009

Judgment of: BAUMANN J

Date of judgment: 4 June 2021

Catchwords: FAMILY LAW – CONTEMPT – Where the father contends the mother has failed to facilitate the child’s telephone communication with the father in accordance with final parenting orders – Where the Court does not find the mother’s conduct was a flagrant challenge to the authority of the Court – Contempt Application dismissed.

Legislation: Family Law Act 1975 (Cth) ss 45A(2)(b), 45A(4), 112AP, 70NAE

Cases cited:
Bande & Cade (2011) 45 Fam LR 376

Ganem & Ganem (No. 2) [2013] FamCA 257

Ibbotson & Wincen (1994) FLC 92-496

Oakley & Millar [2019] FamCAFC 12

Number of paragraphs: 54

Date of hearing: 19 and 20 May 2021

Place: Brisbane

Counsel for the Applicant: Mr R Lake

Counsel for the Respondent: Mr C van der Weegen
ORDERS

BRC 2788 of 2009

BETWEEN:
MR FINCH
Applicant

AND:
MS SHIBO
Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS:
1.That the amended Application – Contempt filed 27 November 2020 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION

The application for contempt heard by the Court is the most recent legal contest in a long history of litigation between the Applicant father, Mr Finch (aged 63 years) and the Respondent mother, Ms Shibo (aged 38 years), in relation to their daughter K (born in 2007), who will soon turn 14 years of age.
The parties had married in 2006 but separated in 2008, when K was but 12 months of age. Litigation ensued almost immediately and the initial final orders made by consent by Forrest J, on 26 November 2011, was not, in any way, the end of litigation. What followed since then has been a number of applications to vary; disputes as to issues such as changeovers and overseas travel; appeals to the Full Court and the like.
In 2013, Forrest J made an order pursuant to then section 118(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) restraining the father from initiating further proceedings without leave.
FURTHER CONTEXTUAL HISTORY
Without detailing fully the litigation pathway between 2011 and 2015, suffice it to say that on 21 August 2015, after a trial, Forrest J made final parenting orders which are annexed to these Reasons and marked Appendix One. Those Orders did not result in a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Finch & Shibo

Details

AGLC: Finch & Shibo [2021] FamCA 353
Case: [2021] FamCA 353
Decision Date: 4 June 2021

CaseChat Overview and Summary

In the matter of *Finch & Shibo*, heard by Baumann J, the father (applicant) contended that the mother (respondent) had failed to facilitate the child's telephone communication with him, contrary to final parenting orders. The father sought a finding of contempt against the mother.

The central legal issue before the Court was whether the mother's conduct constituted a flagrant challenge to the authority of the Court, a necessary element for a contempt finding under section 112AP of the relevant Act. The father bore the onus of proving this beyond reasonable doubt.

Baumann J reasoned that while the mother's actions were intentional and she could be criticised for not commencing fresh proceedings earlier, her conduct was shaped by the child's expressed wishes not to communicate with the father. The Court accepted that the child, who was over 12 years of age, had communicated her anxiety about seeing her father to the mother. The mother's decision to listen to the child's wishes and seek counselling for her, which confirmed the child's fears, was not considered a flagrant challenge to the Court's authority. The Court noted that the penalties for contempt are serious and require a strict test to be satisfied.

Consequently, Baumann J was not persuaded that the mother was guilty of contempt and dismissed the application.

Orders

Orders of the court

BRC 2788 of 2009

BETWEEN:

MR FINCH

Applicant

AND:

MS SHIBO

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS:

1. That the amended Application – Contempt filed 27 November 2020 be dismissed.

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

However, the evidence of Ms X persuades me that this child, who was in January 2020 over 12 years of age, was anxious about seeing her father for reasons currently unknown and asked her mother to listen to her wishes which the mother says she did.CONCLUSION For a contempt finding under section 112AP of the Act for the contravention that has occurred, it is necessary to find that the mother’s actions were a flagrant challenge to the authority of the Court. The father bears the onus of establishing that fact beyond all reasonable doubt. In my assessment, in the face of the child’s views expressed, I do not regard the mother’s actions as exceptional. She knew that, in time, a full examination all facts would be required when she decided to initiate proceedings. Certainly she can be criticised for not commencing fresh proceedings earlier than she did. However, the contempt application was proceeding and amended by the father in November 2020 into a more proper form and the parties did not know until the reasons of Hogan J were delivered on 30 March 2020 what the state was of the other proceedings. When the father chose to commence these quasi-criminal proceedings he should have known that the finding for contempt, under section 112AP, requires the satisfaction of a strict test. The penalties available are serious. Although I am not required to find that the mother’s actions constitute a reasonable excuse, as authorities make clear, the mother’s conduct and reasons for not complying with the Order, which in my view were intentional, were shaped by what the child, she says, told her. I accept the child did make it clear to the mother she did not wish to spend time or communicate with the father. The mother seemed unable, on the evidence, to find a way to seek to establish if there was a logical or reasonable basis for the child’s new stated fear of the father. She chose to adopt the child’s expressed concerns – finally seeking counselling for the child – which confirmed the child’s wishes. In all the circumstances, I am not persuaded the mother is guilty of contempt within the meaning of section 112AP and, therefore, I am compelled to dismiss the application. I so order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 2788 of 2009
Judgment of:	BAUMANN J
Date of judgment:	4 June 2021
Catchwords:	FAMILY LAW – CONTEMPT – Where the father contends the mother has failed to facilitate the child’s telephone communication with the father in accordance with final parenting orders – Where the Court does not find the mother’s conduct was a flagrant challenge to the authority of the Court – Contempt Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 45A(2)(b), 45A(4), 112AP, 70NAE
Cases cited:	Bande & Cade (2011) 45 Fam LR 376 Ganem & Ganem (No. 2) [2013] FamCA 257 Ibbotson & Wincen (1994) FLC 92-496 Oakley & Millar [2019] FamCAFC 12
Number of paragraphs:	54
Date of hearing:	19 and 20 May 2021
Place:	Brisbane
Counsel for the Applicant:	Mr R Lake
Counsel for the Respondent:	Mr C van der Weegen

BRC 2788 of 2009
BETWEEN:	MR FINCH Applicant
AND:	MS SHIBO Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	4 JUNE 2021