Mandal & Nayak (No 2)

Case [2023] FedCFamC1F 933

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Mandal & Nayak (No 2) [2023] FedCFamC1F 933

File number(s): BRC 14336 of 2020
Judgment of: JARRETT J
Date of judgment: 3 November 2023
Catchwords: FAMILY LAW – CONTRAVENTION – Where the respondent admitted the contraventions but pled reasonable excuse – Where the respondent took the child to the applicant’s residence in accordance with orders but the child continually absconded – Where evidence established the child’s behaviour was outside the respondent’s control – Whether the Court should accept the respondent’s pleas where his own evidence is consistent with denying the contraventions – Reasonable excused proved
Legislation:

Family Law Act 1975 (Cth) Division 13A, Part VII, ss 60CC, 70NAC, 70NEB, 70NFB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.69

Cases cited:

Peake & Cousins (No. 2) [2018] FamCA 1056,

Reid & Secco [2017] FamCA 1140

Saldo and Tindall [2013] FamCA 951, [22], [28] and [29]

The Queen v GV [2006] QCA 394, [37]

Tindall & Saldo [2015] FamCAFC 1, [58]
Division: Division 1 First Instance
Number of paragraphs: 32
Date of hearing: 2 August 2023
Place: Brisbane
Counsel for the applicant: Ms Gajic-Pavlica
Solicitors for the applicant: Norris Law
Counsel for the respondent: Mr Leneham
Solicitors for the respondent: Sharma Lawyers

ORDERS

BRC 14336 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MANDAL

Applicant
AND:

MR NAYAK

Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

3 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The contravention application filed on 6 February, 2023 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 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JARRETT J:

  1. By her application for contravention filed on 6 February, 2023 the applicant alleges that the respondent has contravened, without reasonable excuse, certain provisions of final orders I pronounced on 4 February, 2022 concerning the parenting arrangements for one of the parties’ three children, X. X is 14, nearly 15.

  2. The contravention application contains about 60 distinct counts, but they mainly fall into two categories. All involve an allegation that X spent no time with the applicant when she was otherwise required by the orders to do so. Recognising these matters, on 9 June, 2023 a…

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AGLC
Mandal & Nayak (No 2) [2023] FedCFamC1F 933
Case
[2023] FedCFamC1F 933
Decision Date

CaseChat Overview and Summary

The Family Court was asked to consider whether the respondent had breached court orders in relation to the care of their daughter, X. The applicant alleged that the respondent had failed to return X to her care in accordance with the orders made in February 2022. The respondent admitted the contraventions but claimed a reasonable excuse due to X's refusal to spend time with the applicant. The respondent also argued that he had taken X to the applicant's residence in line with the orders, but X had continually absconded. The court had to decide whether the respondent's pleas of reasonable excuse were valid given the evidence presented.

The court examined the evidence and concluded that X's behaviour was beyond the respondent's control. Despite the respondent's admission of the contraventions, the court noted that his evidence was consistent with denying the contraventions, as he claimed that X had made her own decision to abscond. The court accepted that the respondent had tried to formalise X's care arrangement through mediation, but the applicant had refused to participate. The court found that X's relationship with the applicant had soured since October 2022, leading to X's refusal to spend time with her. The court determined that the respondent had a reasonable excuse for the contraventions as X's behaviour was outside his control.

The court dismissed the contravention application filed on 6 February 2023, accepting the respondent's pleas of reasonable excuse. The court found that the respondent had not failed to make X available to the applicant, but rather, X had made her own decision to abscond. The court concluded that the respondent had not contravened the orders, as X's behaviour was beyond his control. The court's decision was based on the evidence presented and the respondent's reasonable excuse plea.

Orders

Orders of the court

BRC 14336 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MANDAL

Applicant

AND:

MR NAYAK

Respondent

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

3 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The contravention application filed on 6 February, 2023 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 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.

Background

Background to the litigation

The parties agree that since 4 October, 2022 X has not spent any time with her mother.THE UNDERLYING FACTS The applicant’s evidence to prove the contraventions, whilst contained in two lengthy affidavits, is very short. She alleges that the respondent breached “the order on 09.10.22 by not providing [X] during school term 4” (affidavit filed on 6 February, 2023 at paragraph 8 and affidavit filed on 16 June, 2023 at paragraph 8) and “Respondent continued to withhold [X] on every occasion for the rest of the school term till 07.12.22” (affidavit filed on 6 February, 2023 at paragraph 9 and affidavit filed on 16 June, 2023 at paragraph 9). As to the holiday times contraventions, she deposes in her first affidavit at paragraph 11 (with a similar deposition in the second affidavit) “Respondent held [X] in his care for whole of the school holiday from 09.12.22 - 30.12.22.” The applicant gave no particular evidence of any particular occasion (other than those to which I have already referred) where X was to come into her care when she did not. She does not describe the respondent’s actions or inaction, although she argues that he did not do all that he could do to ensure X lived with her as required by the orders. Nonetheless, it is not controversial that X has not spent any time with the applicant in accordance with the orders since 4 October, 2022. The respondent says that X does not wish to spend any time with her mother and that given her age and despite his encouragement, she refuses to do so. He says that X was spending time with her mother pursuant to the orders until 4 October, 2022. At that point X became aware that her mother would not sign a passport application for X. X intended travel with her father to Country D at the end of 2022 during the school holidays. Since 4 October, 2022 however, X’s relationship with her mother has soured. The evidence in the applicant’s affidavit and in particular, the text messages from X, demonstrate that is so. According to the respondent’s evidence X lives “between my house and her eldest brother [Mr B’s] rental property”. He says that he has tried to “formalise [X’s] care arrangement” by engaging in mediation but the applicant has refused to do so. His reference to formalising X’s care arrangement I take to be a reference to X living with him (or perhaps between his and Mr B’s house) and spending no time with her mother. It is little wonder, given the orders of the court made in February, 2022 that the applicant has refused to participate in such a process. The respondent argues that he has not failed to make X available to the applicant but rather when he has done so, X has made her own decision to abscond from the applicant’s care. In that respect, it seems uncontroversial that the applicant has been powerless to retain X in her care. The evidence shows that the applicant has attempted to collect X at the conclusion of the school day when X is to be living with the applicant, but she has been unsuccessful in doing so. Indeed, as the respondent points out, once X is supposed to be in the applicant’s care, it is the applicant’s responsibility to collect her from school on Mondays, Tuesdays and Wednesdays. She has been unable to convince X to leave with her after school, or if she has done so, to remain in her care overnight.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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