Hampton & Robles
[2022] FedCFamC1F 191
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hampton & Robles [2022] FedCFamC1F 191
File number(s): MLC 2659 of 2018 Judgment of: SCHONELL J Date of judgment: 18 March 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Contravention of Court orders – Where the father alleged that there were five separate breaches of orders – Where the mother denied two charges and admitted three on the basis that she had a reasonable excuse – Where the father moved overseas and consequently was in non-compliance of the orders himself – Where the evidence did not establish proof on the balance of probabilities that the mother breached the orders – Where the charges denied by the mother were dismissed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 70NAC
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 18 March 2022 Place: Sydney Solicitor for the Applicant: Litigant in person Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Sydney West Family Lawyers ORDERS
MLC 2659 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HAMPTON
ApplicantAND: MS ROBLES
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.Upon noting that the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in these proceedings on or after 11 September 2019, the Applicant must not cross-examine the Respondent personally and any cross-examination must be conducted by a legal practitioner acting on behalf of the Applicant.
2.Within seven days of the date of these orders, the Applicant complete the “Scheme Application Form” and provide Legal Aid NSW (…) for the allocation of a legal practitioner.
AND IT IS NOTED THAT:
A.Pursuant to s 102NA(1), there is an allegation of family violence between the Applicant and the Respondent.
B.The parties have each been advised by the Court that:
a.neither party may cross-examine the other party personally;
b.any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
c.as to the availability of the Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
d.a copy of these orders will be provided by the Court to Legal Aid NSW, which administers the said scheme.
If the Applicant fails to apply to Legal Aid NSW for legal representation pursuant to these orders, Legal Aid NSW will notify the Court and the matter will be relisted for further directions.
AND THE COURT FURTHER ORDERED THAT:
3.The proceedings are adjourned part-heard before me to 9.30 am on Friday, 29 April 2022 NOTING THAT the Court estimates that the proceedings will take no more than about an hour.
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 the pseudonym Hampton & Robles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
These are proceedings brought by the applicant father ("the father") alleging a contravention of orders made 23 April 2019. By Application - Contravention filed 19 June 2020, the father alleged that the respondent mother ("the mother") had contravened a number of orders, including removing two of the children the subject of the orders from their religious school in Melbourne to a public school in Sydney without the father's knowledge or consent, and that the mother refused to allow the father to communicate with the children. There were alleged to be five separate breaches of the orders.
The matter, for reasons which are not apparent, seems to have taken an inordinately long time to be heard by this Court. There seems no explanation before me as to why that is the case but to the extent that it has taken that long, I apologise on behalf of the Court to the parties.
The father sought to rely upon two documents, an Application - Contravention filed 19 June 2020 and an affidavit sworn by him on 17 June 2020 and filed 19 June 2020.
The history of the matter arising from the father's affidavit identifies that on 23 April 2019, final property and parenting orders were made by the Court. The parenting orders, which are the subject of the application related to the parties' three children: Z, X and Y. The orders provided for the parties to have equal shared parental responsibility of the children, for the children to live with the mother, and for the father to spend time with the children during school terms, and on holidays, religious days and various other days of celebration.
The orders were clearly predicated upon the basis that the father would be living in close proximity to the mother and the children.
The father informed the Court today that shortly after the orders were made, he went to Country C, initially only for the purposes of a visit, but then decided to stay permanently. He has not returned to Australia since moving to Country C in April/May 2019. It is clear as a consequence of the father's move to Country C, that he himself has not complied with the orders.
There were five charges alleged in the Application - Contravention.
The charges were all read to the mother and through her counsel, the mother denied charges two and five. In relation to charges one, three and four, the mother admitted that she had breached an order but contended that she had a reasonable excuse.
I have not yet dealt with those remaining charges, and I am dealing in these reasons solely with charges two and five in the Application, which the mother denied any breach.
Charge two provided that on or about 5 February 2020, the mother without reasonable excuse and in breach of Order 22 of Court Orders dated 23 April 2019, refused to allow the father to communicate with the children X and Y at any reasonable time and for a reasonable duration.
Charge five provided that on or about 13 May 2020, the mother without reasonable excuse breached Order 23 of the orders dated 23 April 2019, in that she denigrated the father and allowed her friend Ms D to denigrate him to X and Y, telling them that he was a bad person and had been unfaithful to the mother.
In relation to charge two, the father relied on his affidavit in support of the proposition that there had been non-compliance with the order.
The mother through her counsel alleged that there is no evidence that the mother breached the order and further that the order contemplated that the father would be present in Australia.
Charge two relates to Order 22 of the orders of 23 April 2019. Order 22 is in the following terms:
22. The husband and wife each do all such things as may be required to facilitate the children’s communication, via telephone, text message, videoconference, email or such other medium as may be agreed to by the children and with the other party, at any reasonable time, and for any reasonable duration, such communication to be initiated by either the children or the other party.
Charge five related to Order 23. Order 23 provides the following:
23. The parties, their servants and agents are hereby restrained from denigrating the other party or any other member of their household to or in the presence of the children or permitting any other person to do so.
Section 70NAC of the Family Law Act 1975 (Cth) provides that a party may be dealt with for contravention of an order, if a person is bound by the order he or she has either intentionally failed to comply with the order or made no reasonable attempt to comply with the order.
The onus of proving each of the elements of a contravention rest upon the applicant. The applicant must demonstrate that a party was bound by an order and that there was non-compliance with the order, and that the non-compliance was either intentional or alternatively the party who is alleged to have contravened the order made no reasonable effort to comply.
These are proceedings that are governed by s 140 of the Evidence Act 1995 (Cth) and the applicant bears the onus of proof to demonstrate on the balance of probabilities each of the elements of the charge.
It is necessary then to consider each of the contraventions to charges two and five separately, first of all to determine whether or not there has been non-compliance and if non-compliance, whether or not the mother has a reasonable excuse. As I indicated earlier in these reasons, there are two parts to this hearing and I am dealing first of all with the charges to which the mother denied she had breached.
I will now deal with charge number two. Charge number two contends that the mother refused to allow the father to communicate with the children. The father's evidence is contained in his affidavit as follows:
5. Pursuant to paragraph 22 of the Orders, the parties were to facilitate communications between the children and the other party at any reasonable time. I have never communicated freely with X and Y. The only means of communication was via Z's mobile phone, while Z was still in Melbourne. Since Z left Melbourne, my communication with X and Y has become scarce. Notwithstanding my repeated requests of the mother to allow communication with X and Y, the mother refused to allow it. Z also seldom managed to speak with X and Y and the conversations were very brief.
…
7. I continued to try and communicate with the mother, X and Y without success. The mother was speaking rarely and briefly with Z and did not tell Z about her plans to move to Sydney or her whereabouts.
…
11. Following mediation, I was at least made aware of the fact that the mother indeed relocated to Sydney, and that she indeed enrolled X and Y to Suburb B Primary School, a local school in the area they were living. The mother also agreed for me to communicate with X and Y but only via Skype and in a very limited way. However, all of the calls lasted about 3 minutes due to the mother disconnecting X and Y's device from the Internet. The mother subsequently stopped all communication.
12. Also, due to the time difference between Australia and Country C, there is a small window to allow communication at a reasonable time for both, especially for Z who attends school during the day, so Z has not spoken with her sisters for a very long time. Z has told me that when she had asked her mother to speak with her sisters, the mother avoided the subject or simply ignored her request. On one occasion, when Z spoke very briefly with X, Z could hear the mother in the background monitoring the conversation and telling X what to say. After allowing me and Z to talk to X and Y a few times in May and June 2020, the mother again stopped all communication with X and Y.
I am not satisfied that a case has been established that the mother contravened Order 22. The order is poorly framed. The order provides that the form of communication has to be agreed upon between the children and the father. The communication is to be initiated by either the children or the other party. On the evidence, I am not satisfied that it has been established to the relevant standard of proof that there is evidence that the form of communication has been agreed upon between the father and the children, such that the mother could be found to have breached an order.
I am satisfied that no prima facie case has been established in relation to charge number two. I dismiss charge number two.
In relation to charge number five, this charge contends quite specific matters, namely that the mother degenerated the father and allowed her friend to degenerate him to the children. This, however, is somewhat different to the terms of Order 23, which I have referred to earlier. The father's evidence in support of this charge is found in paragraph 14 of his affidavit, which provides as follows:
14. Further, on two occasions on 13 May 2020 and 15 May 2020, X swore at me during telephone discussions in the presence of Y and the mother (who was listening to the conversation and giving instructions to X). X told me that the mother's friend, Ms D, told her negative things about me, that I was a bad person and that I was unfaithful to the mother. The mother heard that conversation and said nothing to X about the way she spoke to me.
Paragraph 14 on its face makes it plain that there are two separate occasions, namely 13 May and 15 May 2020, when conduct complained of has occurred. The charge relates only to 13 May 2020. Despite the charge contending that the mother denigrated him to the children, the evidence does not establish that. The evidence such as it is, does not establish that it was the mother who denigrated the father. Indeed, it would appear that the evidence establishes that it is the child X who denigrated the father, not the mother. Nor is there any evidence to my satisfaction that the mother allowed her friend Ms D to denigrate the father. The evidence in paragraph 14 is to this effect:
14.… X told me that the mother's friend, Ms D, told her negative things about me, that I was a bad person and that I was unfaithful to the mother. …
It is contended that the mother heard that conversation and said nothing to X about the way she spoke to him. The mere fact that the mother heard the conversation does not mean that the mother allowed her friend Ms D or permitted her friend Ms D to denigrate the father. Nor am I satisfied that there is any evidence that the mother told the children, as the charge contends, that the father was a bad person or had been unfaithful.
The onus is on the applicant to establish on the balance of probabilities that the mother contravened the order. For the reasons that I have stated earlier, I am not satisfied that has been established.
No prima facie case has been established in relation to charge number five. I dismiss charge number five.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 18 March 2022
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