FAMILY LAW – CONTRAVENTION APPLICATION – Where the father alleges 13 contraventions – Where two contraventions were dismissed during hearings – Where the mother asserts that there is no case to answer in respect of the remaining alleged contraventions - Application dismissed
Legislation:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.69
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR MELOUNIS Applicant
AND:
MS MELOUNIS
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
25 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.That the Contravention Application filed by the father on 10 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 the pseudonym Melounis & Melounis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These reasons relate to an Application for Contravention filed by the father on 10 February 2023 (“the Contravention Application”).
The Contravention Application arises from Final Orders made by Judge Morley on 24 May 2022 after a lengthy trial covering both parenting and financial proceedings heard across 7 days between September 2020 and July 2021 (Melounis & Melounis [2022] FedCFamC2F 650).
The Contravention Application is the second such application that has been filed by the father. The other was filed on 17 March 2023, and was dismissed by me on 31 May 2023 (Melounis & Melounis [2023] FedCFamC1F 664).
Each of the parents were self-represented in relation to both Contravention Applications.
For the reasons that follow, the Contravention Application filed 10 February 2023 is to…
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.
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Details
AGLC
Melounis & Melounis (No 2) [2023] FedCFamC1F 811
Case
[2023] FedCFamC1F 811
Decision Date
CaseChat Overview and Summary
In the case of Melounis & Melounis, the Federal Circuit and Family Court of Australia dismissed a Contravention Application filed by the father, Mr. Melounis, against the mother, Ms. Melounis. The father had alleged 13 contraventions of the parenting orders made on 24 May 2022. During the hearings, two of the alleged contraventions were dismissed, and the mother argued that there was no case to answer for the remaining contraventions. The court considered the legal principles and found that the mother had not contravened the specified orders. Consequently, the court dismissed the remaining contraventions and the entire Contravention Application.
The court examined each allegation in detail. For instance, Count 13, which alleged that the mother involved the children in the proceedings on 24 May 2022, was dismissed due to insufficient evidence that the children were present during the Microsoft Teams hearing, and because it is impossible to contravene an order before it is made. Similarly, Count 10, which alleged that the mother made derogatory comments about the father in the children's presence, was dismissed as the court did not find the comments to be derogatory. The court found that the father had not provided sufficient evidence to support the remaining contraventions, leading to the dismissal of all alleged contraventions.
The final orders of the court dismissed the Contravention Application filed by the father on 10 February 2023. This decision underscores the importance of providing clear and sufficient evidence to support allegations in family law proceedings.
Orders
Orders of the court
SYC 7199 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR MELOUNIS
Applicant
AND:
MS MELOUNIS
Respondent
ORDER MADE BY:
KARI J
DATE OF ORDER:
25 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. That the Contravention Application filed by the father on 10 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
For the reasons that follow, the Contravention Application filed 10 February 2023 is to also be dismissed.BACKGROUND The short history of this family is as follows (taken from the reasons of Judge Morley delivered 24 May 2022)[1]:(a)The father was born in 1976 and would now be 47 years of age.(b)The mother was born in 1983 and would now be 39 years of age.(c)The parties commenced cohabitation in late 2008.(d)The parties married in 2010 and separated on either 8 September 2018 (according to the father) or 17 October 2019 (according to the mother).[1] Melounis & Melounis [2022] FedCFamC2F 650. The parties have two children as follows:(a)X born in 2013, who was nine years of age at the time of the hearing; and(b)Y born in 2016, who was six years of age at the time of the hearing. The final parenting orders made on 24 May 2022 provided as follows:PARENTING1.That the parents have equal shared parental responsibility for their children X born in 2013 and Y born in 2016.2.That the Mother’s application to relocate the children’s place of residence to the Region B is refused.3.That until the Mother establishes for herself a residence in the Sydney area in sufficient proximity to be able to convey the children to their school at C School at F Street, Suburb D, the children live with the Father and spend time with the Mother as agreed between the parties and in default of agreement as follows:(a)During school term time, from end of school (or 3:00PM if not a school day) on Friday until start of school (or 9:00AM if not a school day) on Wednesday; and(b)For one half of the school holidays, being the first half of school holidays that commence in even numbered years, and the second half of school holidays that commence in odd numbered years.4.That as and from the Mother establishing for herself a residence in the Sydney area in sufficient proximity to be able to convey the children to their school at C School at F Street, Suburb D, the parents shall share the care of the children on an equal time basis as follows:(a)At all times other than the school holidays at the end of Term 4, the children shall live with each of their parents on a week-about basis with changeover occurring at the end of school (or 3:00PM if not a school day) on Friday each week;(b)During the school holidays at the end of Term 4, the children shall live with:(i)The Mother for the first half of such school holidays that commence in an even numbered year, and for the second half of school holidays that commence in an odd numbered year; and(ii)The Father for the first half of such school holidays that commence in an odd numbered year, and for the second half of school holidays that commence in an even numbered year.5.For the purpose of order 3 and 4, the midpoint of the school holidays is the day which is the middle day between the last day the children are required to attend school and the first day the children are required to attend school and in the event the school holiday period has an odd number the midpoint shall be the earlier of the two middle days of the school holiday period.6.The first such occasion of equal time in accordance with order 4 between the Mother and the children will commence on the Friday on which the children would next have come into the Mother’s care under order 3.7.Notwithstanding any other order herein, the children shall spend time with their parents on each child’s birthday as follows:(a)If the child’s birthday falls on a school day, the children shall spend time with the parent in whose care they did not wake up on that day from 3:00PM until 6:30PM;(b)If the child’s birthday falls on a non-school day, the children shall spend time with the parent in whose care they did not wake up on that day from 9:00AM until 2:00PM.8.Notwithstanding any other order, in the event that the children are not otherwise spending time with the Mother, the Father’s time shall be suspended and the Mother shall spend time with the children as follows:(a)From 3.00PM on the Friday prior to Mother’s Day to 9.00AM on the Monday following Mother’s Day;(b)From 3.30PM to 8.00PM on the Mother’s birthday.9.Notwithstanding any other order and in the event that the children are not otherwise spending time with the Father, the Mother’s time shall be suspended, and the Father shall spend time with the children as follows:(a)From 3.00PM on the Friday prior to Father’s Day until 9:00AM on the Monday following Father’s Day;(b)From 3.30PM to 8.00PM on the Father’s birthday.10.That the children shall spend time with each party during the Easter, where it does not fall in school holidays as follows:(a)With the Father in each even numbered year from 5:00PM on the Thursday preceding Good Friday until 5:00PM Easter Saturday and in each odd numbered year from 5:00PM Easter Saturday until 5:00PM Easter Monday; and(b)With the Mother in each odd numbered year from 5:00PM on the Thursday preceding Good Friday until 5:00PM Easter Saturday and in each even numbered year from 5:00PM Easter Saturday until 5:00PM Easter Monday.11.That when Easter does fall during school holidays, the parent who does not have the children in their care when the Easter break falls shall spend time with the children from 12:00PM Easter Sunday to 5.00PM Easter Monday or such other time and date agreed between the parties.12.The children shall spend time with each party during the Christmas period as follows:(a)With the Mother in each even numbered year from 9:00AM on Christmas Eve until 2:00PM on Christmas Day and in each odd numbered year from 2:00PM on Christmas Day to 5:00PM Boxing Day; and(b)With the Father in each odd numbered year from 9:00AM on Christmas Eve until 2:00PM on Christmas Day and in each even numbered year from 2:00PM on Christmas Day to 5:00PM on Boxing Day.13.That all changeovers that do not take place at the children’s schools shall take place by the parent into whose care the children are moving collecting the children from the residence of the parent out of whose care the children are moving.14.For the purpose of order 13, the parent into whose care the children are moving is to collect the children from the front gate or perimeter of the property (away from the front door into the property) and the parent out of whose care the children are moving is to facilitate the changeover by ensuring the children are brought to the front gate of the property.15.During changeovers, the parents are restrained from discussing any matter other than information necessary for the immediate welfare of the children, and are to exchange a polite greeting should it be necessary for them to come face-to-face with each other.16.That the children shall communicate with the parent the children are not spending time with by Skype or Facetime (or mobile telephone if Skype or Facetime are not available), as agreed and failing agreement, each Tuesday and Thursday between 6.00PM and 6.30PM with the parent the children are spending time with to facilitate the children receiving such call from the mobile number or Skype account as provided pursuant to these orders.17.If either parent wishes to remove the children from the Commonwealth of Australia for a holiday, that parent shall only travel to a Hague Convention country, unless otherwise agreed in writing between the parents. The parent wishing to take the holiday must provide the other parent at least 60 days prior to the expected departure date with the following:(a)Confirmation in writing that the length of the trip shall be no more than the time allocated to the travelling parent pursuant to these orders, and if the holiday affects the time of the non-travelling parent written consent is required.(b)Confirmation that the holiday is during the children's school holidays and if it is not, written consent is required from the other parent;(c)A copy of the travel insurance policy in respect of each child for the duration of the holiday from the date of departure to the date of return to Australia;(d)The contact details of where the children will be staying overnight (including name of the accommodation, address and telephone contact details);(e)Flight numbers, a copy of the itinerary and a copy of any return plane tickets and/or e- tickets; and(f)Details of who will be accompanying the children on the trip.18.That each parent shall keep the other informed of their current residential address and mobile telephone number and Skype account details and advise the other parent of any change thereto within 24 hours of such change.19.That each party notify the other party in writing of any significant social, religious or sporting events relating to the children that is scheduled to occur whilst the children are in their respective care, not less than seven (7) days prior to that event taking place.20.The parties shall communicate with each other by text message or email concerning parenting of the children, unless it is an emergency.21.That each parent shall use their best endeavours to ensure that the children have clothing, shoes, toiletries, medication and toys etc from the other party's house returned to that party at the changeover of the children.22.That each of the parties is restrained from discussing these proceedings in the presence of or within the hearing of either of the children.23.That each of the parties is restrained from allowing the children or either of them to remain in the presence of or within the children’s (or either child’s) hearing of any other person discussing these proceedings.24.That each of the parties is restrained from making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household, in the presence of or within the hearing of either of the children.25.That each of the parties is restrained from allowing either of the children to remain in the presence of or within the child’s hearing of any other person making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.26.That each of the parties is restrained by injunction from passing information or messages for the other through the children or either of them.27.That each parent shall be at liberty to attend school events, concerts, performances, ceremonies, assemblies, parent teacher nights, extracurricular activities and sports for the children to which both parents are invited to attend, even if the children are not in that party’s care at the time of the event. The parent who has the children in their care at the time of the event shall be at liberty to engage with the children and take the children home after the event, and the other parent shall be permitted to be in the audience/crowd and shall not approach the other parent unless it is necessary to do so.28.That the parties shall use their best endeavours to encourage and facilitate the children's attendance and participation in sporting, extracurricular and social activities whilst the children are in that party's care. 29.That if either child is injured, requires medical treatment, or hospital admission, the party who has the care of that child shall notify the other party by telephone or text message as soon as possible.30.That each of the parents shall follow the advice and direction of the children’s treating medical practitioners (and including not limited to the children's GP, dentists and any other specialists) in relation to the children's health treatments and any medication and shall ensure that any treatment and/or medication is provided to the children whilst the children are in that parent’s care and passed on the other parent at the next changeover with all information about administering the medication.31.That each parent shall authorise the children’s medical practitioners that he or she has engaged to communicate with the other parent and a copy of these orders shall serve as authority to that effect.32.That the children remain enrolled at and attend C School at Suburb D unless otherwise agreed between the parties in writing.
Evidence
Evidence Before The Court
That being said, it appears that the alleged breaches fall into five separate categories as follows:(a)Counts 7, 8 and 11 relate to the children’s 2022 school Father’s Day event.(b)Counts 2, 3, 4, 9 and 12 relate to communication and the children’s attendance at extracurricular activities.(c)Count 5 relates to the exchange of the child Y’s school shoes.(d)Count 10 relates to alleged denigration by the mother of the father in the children’s presence.(e)Count 13 relates to the children being involved in the proceedings.THE EVIDENCE IN SUPPORT OF THE ALLEGED CONTRAVENTIONS The father relied on an affidavit filed 10 February 2023 in support of his Contravention Application. As was her right, the mother did not file any material in response to the Contravention Application.THE T.H.O. 23 AND 25 AUGUST 2023 At the trial hearing, the court adopted the procedure required by Rule 11.69 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’). After discussing the procedure for the hearing with the parties, each of the counts were put to the mother. In response to each count the mother denied she had breached the identified order. The father was then asked to identify those paragraphs of his affidavit which supported each alleged contravention. The transcript of the hearing will bear out the paragraphs he identified in relation to each alleged contravention. I have had regard to those paragraphs identified by the father in support of each alleged contravention. The father additionally asked the court to receive what he called a “tender bundle” of documents. It became apparent that those documents were the annexures referred to in his affidavit filed 10 February 2023, which had not actually been annexed to the affidavit. The mother did not object to the court receiving those documents that had intended to be annexed to the father’s affidavit filed 10 February 2023. The mother elected to cross examine the father and interrogate his evidence. Thereafter the father was permitted to lead some limited evidence in reply. At the conclusion of this process the mother submitted that the alleged contraventions had not been made out. Judgment was thereafter reserved.THE LEGAL PRINCIPLES The mother’s submission that the alleged contraventions had not been made out, is often times referred to as a “no case to answer” submission. When considering a “no case to answer” submission, the comments of the Full Court in Fierro & Fierro (No 7) (2023) FLC 94-132 (at [43]) when discussing contempt applications are apposite:… the quasi-criminal nature of contempt applications warrants their differential treatment from conventional civil suits: they may be dismissed if the counts are inherently defective (and hence it would be an abuse of process to prosecute them) or if there is no case for the respondent to answer, but should not be dismissed because the counts ostensibly lack reasonable prospects of success…
Decision
Reasons for decision
Count 13 is accordingly dismissed.CONCLUSION For all of the reasons that I have discussed each of the alleged contraventions are to be dismissed. I accordingly make the orders set out at the commencement of these reasons.
Ratio Decidendi
Legal Principle Established
Count 5 is accordingly dismissed.Count 10 – Alleged denigration by the mother of the father in the children’s presence The alleged contravention relates to events which took place on 27 June 2022. On that occasion the father alleges:(a)The mother instructed a process server to attend the handover of the children to effect service of documents on the father.(b)The mother attended handover with a friend who was recording the handover on a phone.(c)The process server and/or the mother had an exchange with the paternal grandparents, which included the mother saying the following words in the presence of the children; “Tell [Mr Melounis] they are after him”. The father’s position is that these words amounted to “derogatory” comments made by the mother about the father in the presence of the children. The father asserts this to be the case as he considers the inference to be drawn from those words is that “I had done something wrong”. I do not accept that these words were derogatory of the father. While it was ill advised of the mother to attempt to effect service of documents upon the father at handover, I do not consider that the father has established the mother contravened Order 24. Count 10 is accordingly dismissed.Count 13 – Alleged involvement of the children in the proceedings by the mother The alleged contravention relates to 24 May 2022, being the day upon which judgment was delivered and the final parenting and financial orders were made by Judge Morley. The details of the alleged contravention identify that the hearing before Judge Morley occurred by Microsoft Teams. That however is not clear from the face of the orders. However, even if I accept that this is how the hearing was conducted, there are some obvious difficulties with this alleged contravention:(a)The first is that there is no evidence before the court confirming that the children did not attend school on 24 May 2022.(b)The second is that there is no evidence to suggest that the children were present with the mother when the Microsoft Teams hearing occurred and/or that they were able to hear the court hearing and/or that the mother discussed the proceedings with the children on that occasion. Rather, the father infers that to be the case simply because he says that the children did not attend school on 24 May 2022.(c)The final, and perhaps more fundamental difficulty is that it is impossible for the mother to have breached any order before it was made. For all of these reasons, I am not satisfied that the father has established that the mother contravened Order 23. Count 13 is accordingly dismissed.CONCLUSION For all of the reasons that I have discussed each of the alleged contraventions are to be dismissed. I accordingly make the orders set out at the commencement of these reasons.