Meese and Meese (No. 3)

[2018] FamCA 807

FAMILY COURT OF AUSTRALIA

MEESE & MEESE (NO. 3) [2018] FamCA 807

FAMILY LAW – CONTRAVENTION – where each count dismissed – consideration of costs – where applicant wholly unsuccessful – where application brought about by failure of respondent to provide children generally – no order as to costs.

Family Law Act 1975 (Cth) s 117.

APPLICANT: Mr Meese

RESPONDENT: Ms Meese

INDEPENDENT CHILDREN’S LAWYER: Mr P Smith

FILE NUMBER: CAC 773 of 2017

DATE DELIVERED: 28 September 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 28 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Carney, SC

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

SOLICITOR FOR THE RESPONDENT: Andrew Warren Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. The interim application of the Father filed 12 September 2018 and returnable on 12 November 2018 is vacated from 12 November 2018 and listed for hearing at 10am on 9 October 2018.

IT IS NOTED THAT

1. The Mother has been permitted to file in Court her response and responding material to that application today. 

IT IS FURTHER ORDERED THAT

1. The Father may file and serve any material he seeks to rely upon in reply to the Mother's material by 12pm on 5 October 2008.

IT IS NOTED THAT

1. The hearing time will be limited to limited to 2 hours on that day.

IT IS FURTHER ORDERED THAT

1. Any amended application in a case may be filed by the Father by midday on 5 October 2018.

2. Provided the consent of the person who is the object of the subpoena is obtained, the parties are at liberty to issue such subpoenas as are necessary for the preparation of the interim hearing provided that they are returnable no later than 10am on 8 October 2018.

IT IS NOTED THAT

1. The Mother’s responding material includes an application in relation to financial matters.  It has been indicated to the parties that the financial aspects of the application will not be reached on the next occasion and hence there is no necessity for those to be answered at this point.

2. Directions will be given in respect of the interim financial matters on the next occasion.

IT IS FURTHER ORDERED THAT

1. Each of the counts of contravention is dismissed.

2. There being no order as to costs.

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 Meese & Meese (No. 3) 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 CANBERRA

FILE NUMBER: CAC 773 of 2017

Mr Meese

Applicant

And

Ms Meese

Respondent

REASONS FOR JUDGMENT

1. Contraventions have been pleaded in respect of four matters as expanded from the application for contravention filed 17 September 2018.  As noted earlier today, the contravention pleaded alleged contraventions in pairs in the alternative, that was amended with leave to encompass precisely the same alleged contraventions as set out in the application for contravention but expanded into four separate counts rather than as plead in the alternative.  Having received the evidence in support of the contraventions the respondent submitted that there was no case to answer in relation to any of the four contraventions.  In considering that submission I am obliged to draw all available inferences in favour of the applicant and to take the applicant’s evidence and case at its highest.  If, taken at its highest and with the drawing of those implications, the evidence is capable of establishing the contravention, then there is a case to answer in relation to any of those particular counts for which those conditions are met. 

Count one

1. Count one was pleaded as a breach of paragraph 3(a)(i) of the orders made on 27 August 2018.  Specifically, it alleged that the breach had occurred on 31 August 2017.  The orders were not in place on 31 August 2017.  Demonstrably there could be no breach occurring in 2017 of orders made in 2018.  That much was conceded by the applicant.  There is no case to answer in respect of count one.

Count two

1. Count two alleged a breach of paragraph 3(a)(i) of the orders made on 27 August 2018 occurring on 7 September 2018.  The respondent alleged that there was no case to answer because there was no obligation for the child Z to be provided to the Father on 7 September 2018.  The orders specified an alternating arrangement occurring across a fortnightly cycle where in week one Z would spend time with his Father from after school on Friday until before school the following Monday and on week two from after school on Thursday until before school on the Friday. 

2. The orders were made on Monday, 27 August 2018.  The respondent argues that the obligation cast by the order was such that the Friday through Monday obligation would occur on the weekend following the making of the orders and the Thursday, Friday obligation would be cast upon her in the following week.  If that is so, there was no obligation cast upon the Mother on 7 September 2018 to provide Z to spend time with the Father.  It is true that there is no commencing date set for how the fortnightly cycle will unfold.  However, from the date of the making of the orders and on the terms of the orders, the orders are clear as to how that cycle will unfold and that the first weekend obligation was to occur immediately following the making of the orders.  If I am wrong and it is the case that the orders do not clearly cast the obligations in such a manner, then the corollary of that is that there was no clear obligation upon the Mother to have provided Z in any event, due to a lack of clarity in the orders casting such an obligation upon her.  In either event, there is no obligation that has been breached, or no sufficient evidence to demonstrate that an obligation has been breached in respect of count two and there is no case to answer. 

Count three

1. Count three alleges a breach of 3(a)(ii) of the orders made on 27 August 2018 occurring on 6 September 2018.  On the structure of the orders as I have construed them, this would have constituted a time of obligation for Z to have been provided to the Father on the Thursday/Friday component of the orders.  The respondent asserts that there is no case to answer because there is no evidence that is capable of establishing that Z was not provided in accordance with the orders.  A number of different matters have been pointed to by the respondent as demonstrating that there was a breach of the orders on that occasion.  Again, I note that in examining this evidence I am to take the evidence at its highest and draw all favourable inferences that are available in favour of the respondent in determining whether or not there is a case to answer.

2. The first aspect that the respondent points to is the requirement that Z be collected from his school by the Father.  While not expressly stated within the orders I accept that by implication that must be so, given both the structure of the orders and given the suite of injunctions otherwise restraining the Father.  He is correct to say that the orders provided for Z to be collected from school.  Paragraph 16 of his affidavit notes that Z was not in attendance at school on that day, at least in accordance with the school records that have been provided to him.  Paragraph 18 of the Father's affidavit asserts simply that he did not see or spend time with Z on that day.  It is noteworthy that the paragraph does not assert that Z was not made available or was not in attendance at the school at the specified collection time but merely asserts that the Father did not see Z on that day. 

3. The Father also refers to the content at page 21 of the Tender Bundle (exhibit F1 in the proceedings).  Page 21 contained correspondence from the solicitor for the Mother to the school, being correspondence of 11 September 2018, five days after the alleged breach.  On that occasion the solicitor for the Mother represented to the school that the Mother was “currently not making Z available” in the light of what has happened.  The Father contends at [13] of his affidavit that the reference to “in the light of what has happened” must be, by implication, the events described in that paragraph in correspondence from the Mother's solicitor, referring to incidents occurring on 28 and 29 August wherein Z was described to have engaged in resistance to the idea of spending time with his Father and to have engaged in an attempt at self-harm. 

4. The question is whether the evidence at its highest is capable of sustaining a contravention of the order.  The question of whether it has the ability to do so relies upon whether or not it is possible to strain the reference to “currently” as expressed by the Mother's solicitor on 11 September 2018 to include the date on 6 September 2017, five days before, because of the reference there to “what has happened”.  “What has happened” is too amorphous an expression to allow an inference to be available that the expression of “currently” on 11 September encompassed the previous date of 6 September.  There is no evidence capable of demonstrating a contravention of the order on that occasion and no case to answer in respect of count three.

Count four

1. Count four alleged a breach of an obligation to provide Z on a Thursday overnight on 13 September 2018.  That was an occasion on which the orders cast an obligation on the Mother to provide Z from the Friday through to the Monday.  There was no obligation for her to provide Z on the Thursday through to the Friday.  Again, the orders are clear in their operation as to the pattern of time that Z was to spend with his Father. Again, if I am wrong about that, then there can be no obligation cast upon the Mother because the orders would not be clear enough to do so.  There is no case to answer in respect of count four. 

2. Accordingly, each of the counts is dismissed.

Costs

1. An application has been made by the respondent for her costs of today's proceedings. I am obliged to consider making an order for costs where in circumstances such as here, a contravention has been alleged but not established. The framework through which I am to consider whether or not to make an application for costs still falls to be determined by the application of s 117 of the Family Law Act 1975. Section 117 provides a starting point that each party to proceedings under this Act shall bear his or her own costs. A number of circumstances are then pointed to which may justify either in isolation or in combination the departure from that particular starting point. Two circumstances are pointed to by the parties in this case.

2. Strongly in favour of the question of departure is the fact that the applicant has been wholly unsuccessfully in relation to each of the four counts.  In the ordinary course of events that would be sufficient in a case such as this, in the absence of the pointing to of other considerations, to be sufficient to justify departure from that rule.  However, the husband points to a strongly countervailing feature.  That strongly countervailing feature is that orders were made on 27 August 2018.  These contravention proceedings were filed 17 September 2018 and they were filed in the uncontested circumstance that despite the orders providing that Z would be spending time with his Father, Z is spending no time with his Father.  That is, although the Father has been entirely unsuccessful and usually that lack of success would mean that it would be unable to be determined that the proceedings were brought about as a result of the failure of a party to comply with previous orders of the Court, the general concession, which it seems is properly made, that the orders are not being complied with (although there are reasons potentially for this occurring) means that such a finding can be made.  Although he has been entirely unsuccessful the application was necessitated by the failure to provide Z in accordance with the orders. 

3. Those two circumstances in this case are sufficient to work against each other enough to mean that the ordinary course, that is, that each party should bear his or her own costs will be maintained and I decline to make an order for costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 28 September 2018.

Associate:

Date:  8 October 2018