Melounis & Melounis (No 2)
[2023] FedCFamC1F 811
•25 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Melounis & Melounis (No 2) [2023] FedCFamC1F 811
File number(s): SYC 7199 of 2019 Judgment of: KARI J Date of judgment: 25 September 2023 Catchwords: 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 Cases cited: Devine & Devine (No 2) [2022] FedCFamC2F 920
Fierro & Fierro (No 7) (2023) FLC 94-132
Melounis & Melounis [2022] FedCFamC2F 650
Melounis & Melounis [2023] FedCFamC1F 664
Patrick v Capital Finance Corporation and Ors V637 of 2001
Residues Treatment & Trading Co Limited v Southern Resources Limited (1989) 52 SASR 54
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 23 and 25 August 2023 Place: Heard in Sydney, delivered in Melbourne Applicant: Litigant in person Respondent: Litigant in person ORDERS
SYC 7199 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MELOUNIS
ApplicantAND: 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 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:
PARENTING
1.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.
The reasons for judgment of 24 May 2022 are lengthy, running to 169 pages.
The final orders were not the subject of any appeal.
Just over a month after the final parenting and financial orders were made, the mother, on 29 June 2022, commenced fresh financial proceedings. When the father filed his response to that application on 16 February 2023, he sought that new parenting orders be made.
In terms of the progression of the fresh parenting and financial proceedings, orders were made by a Judicial Registrar on 7 August 2023, listing the substantive proceedings to a Compliance and Readiness Hearing before a Judge in Division 1 of the Federal Circuit and Family Court of Australia on 12 December 2023. Relevantly for present purposes, the notations to those orders record:
Single Expert / Family Report
c.A single expert report is not required in the final parenting proceedings, noting that the respondent seeks a Rice v Asplund threshold hearing.
It does not appear that the substantive parenting proceedings have been listed for the foreshadowed ““Rice v Asplund” threshold hearing”.
If anything flows as a consequence of these reasons, it should be that the parenting proceedings are progressed to that threshold hearing sooner rather than later. I make this comment, because it is obvious to me from all that I have read and from all I have heard in the two separate contravention proceedings that I have now heard, that the acrimony that has been omnipresent for these parents continues unabated.
I also make these comments as I am mindful of the opening comments made by Judge Morley in his reasons delivered 24 May 2022:
6.To borrow the language of his Honour Aldridge J, this matter has been littered with indulgences. While contentious family law litigation can inspire or provoke argumentative and combative conduct, writing this judgment has uncovered conduct by both parties which falls far short of the goal espoused in rule 1.04(1) of the Rules, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
7.This is particularly disappointing in circumstances where the welfare of two small children is squarely affected by this judgement and this litigation.
ALLEGED CONTRAVENTIONS
The Contravention Application filed by the father on 10 February 2023 sets out 13 separate counts.
At a hearing before me on 14 June 2023 I made orders dismissing the alleged contravention contained in Count 1.
At the trial hearing on 25 August 2023 I made orders dismissing the alleged contravention contained in Count 6. I made that order in circumstances where the father was unable to identify any evidence set out in his affidavit filed on 10 February 2023 in support of the alleged breach.
I accordingly do not propose to further consider Counts 1 and 6 in these reasons.
I otherwise propose to set out the alleged contraventions exactly as they appear in the Contravention Application. I do so, because the crafting of the application is indicative of the difficulties often encountered by self-represented litigants, who, through lack of qualifications experience and skill acquired by legal practitioners, often times lack the ability to concisely and clearly articulate their Contravention Application.
The remaining alleged contraventions as pleaded by the father were as follows:
Count 2
Date of alleged contravention: 31/01/2023 at 8.25 pm via email
Statement of the alleged contravention:
On 31 January 2023, I sent correspondence to the respondent relating to the children participating in extra-curricular activities. The respondent has provided no response in breach of Order 20.
The respondent has been unresponsive to all attempts since our final orders were in place since May 2022 with regards to establishing an agreement to allow our children to participate in extracurricular activities.
In breach of Order 28, the respondent has failed to encourage and facilitate the children participating in sports, in particular training sessions and games, resulting in the children missing out on activities that require a weekly commitment.
Count 3
Date of alleged contravention: 4/1/2023 at 12.18 via email
Statement of the alleged contravention:
The respondent without reasonable excuse refused to communicate by email concerning the parenting of the children. The children and I are impacted by her refusal to communicate as we are unable to confirm their attendance playing sport with their school friends in 2023.
In breach of Order 20, the respondent is refusing to communicate via email in respect to the children’s parenting.
Count 4
Date of alleged contravention: 16/12/2022 at 3.05 pm
Statement of the alleged contravention:
The respondent refused without reasonable excuse to not respond to an email sent to her lawyer’s seeking to communicate whether she will facilitate our children playing sport in 2023. No response has been received.
In breach of Order 20, the respondent is refusing to communicate via email in respect to the children’s parenting.
Count 5
Date of alleged contravention: 16 September 2022
Statement of the alleged contravention:
The respondent refused without reasonable excuse to return [Y’s] school shoes from 16 September 2022 until 25 December 2022. The respondent returned [Y’s] school shoes on 25 December 2022 resulting in [Y] not wearing her correct school shoes for 3 months.
In breach of Order 21, the respondent did not return [Y’s] school shoes at changeover.
Count 7
Date of alleged contravention: 2/09/2022 at 7:00 am
Statement of the alleged contravention:
The respondent refused without reasonable excuse to allow the children to attend the children’s Father’s Day event on 2 September 2022. The respondent unilateral decision is in breach of order 28.
Count 8
Date of alleged contravention: 1/09/2022 at 5.08 pm
Statement of the alleged contravention:
The respondent refused without reasonable excuse made the unilateral decision to cut‑off email communication the day prior to the children’s Father’s Day event on 2 September 2022. The respondent unilateral decision is in breach of order 20.
Count 9
Date of alleged contravention: 27/08/2022 at 3.29 am
Statement of the alleged contravention:
The respondent refused without reasonable excuse to respond to an email seeking clarification if she would be facilitating the following children’s activities while they were in her care:
•Father’s Day at [C School]’s – Friday – 2 September 22 at 7.30 am
•[Games] party – Saturday – 10 September 22 between 3 – 5 pm
•[Y’s] end of year [sporting] event – Sunday 11 September 22 between 3 – 5 pm
The respondent breached order 28 by without reasonable excuse refused to facilitate the children attending the above activities while in her care.
Count 10
Date of alleged contravention: 27/06/2022 at 3pm
Statement of the alleged contravention:
The respondent has continued to make denigrating remarks in the presence of our children during changeover. The respondent stated to my mother in the presence of the children words the affect “Tell [Mr Melounis] they are after him” suggesting to the children I had done something wrong as she sort the opportunity of changeover to serve me documents while her friend held up her phone suggesting she was recording the event again in the presence of the children.
Count 11
Date of alleged contravention: 2/6/2022 at 7:00 am at C School in Suburb D
Statement of the alleged contravention:
The respondent refused without reasonable excuse to allow the children to attend their school’s Father’s Day breakfast event. The breached order 28 by not facilitating changeover at the school at 7:00am.
Count 12
Date of alleged contravention: 1/06/2022 at 6:32am.
Statement of the alleged contravention:
The respondent refused without reasonable excuse to respond to an email seeking clarification if she would be facilitating the following children’s activities while they were in her care:
•[Sport] on Wednesdays
•[Sports training] on Thursdays
•[Sports games] on Sundays
The respondent breached order 28 by without reasonable excuse refused to facilitate the children attending the above activities while in her care every second week until their [sports] lessons were cancelled due to her nonresponse and refusal to facilitate their attendance on 20 July 2022 as the school does not support fortnightly [sports] lessons and the [sports] season ended on 20 August 2022.
Count 13
Date of alleged contravention: 24/05/2022 at 10 am.
Statement of the alleged contravention:
The respondent refused without reasonable excuse to facilitate the children attend school on […] 2022 resulting in the children being involved in our proceedings as they supported the respondent as our final orders were delivered via Microsoft Teams where the respondent and the children expected to be relocated to [City AJ] as the children had informed me prior and post the event.
(As per original)
As can be seen by the recitation of each alleged contravention, each count is difficult to easily understand, and it is apparent that there is significant overlap between the various alleged contraventions.
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…
The applicable test to be applied when a no case to answer submission has been made, was recently concisely articulated by Judge Dickson in Devine & Devine (No 2) [2022] FedCFamC2F 920. In that case in her Honour identified:
57.The test of whether or not there is a case to answer has been described as whether the evidence has before the Court, taken at its highest and ignoring those things which might diminish it, is capable of founding a conviction. At this stage of the proceedings, the Court does not need to be satisfied of the evidence beyond a reasonable doubt.
58.The question of the test to be applied in a no case to answer submission was addressed in the decision of Patrick v Capital Finance Corporation and Ors [V637 of 2001 (per Tamberlin J). In that decision, Justice Tamberlin approached a no case submission on the basis that the relevant question for determination was:
Whether on the present state of the evidence at the close of the applicant’s case, if no further evidence is called, would I find for the applicant?
59. In Patrick (supra) the Court observed that:
The no case submission is presented on the basis that there are critical gaps in the evidence adduced to this point so that the applicant’s case is not made out. In particular, the respondents submit that there is an evidentiary hiatus as to essential elements in each of the causes of action pleaded: see Residues Treatment & Trading Co Limited v Southern Resources Limited (1989) 52 SASR 54 at 68.
In Residue Treatments, Perry J, at 68 considered that there are four categories of cases in which a no-case submission might be advanced. His Honour identified these categories as follows:
“1. Where no reference at all to the evidence is required.
2. Where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action.
3. Where it is argued that on a consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff’s point of view, the evidence could not support the causes of action pleaded.
4. The situation where it is contended that although there is some evidence to support the plaintiff’s claim, it is so weak and unreliable that it should be dismissed without calling upon the defendant (emphasis added)”.
(Emphasis in original)
(Footnotes omitted)
DISCUSSION
Counts 7, 8 and 11 – Father’s Day 2022
The alleged contraventions relate to the children’s school Father’s Day event which is said to have taken place on 2 September 2022.
Counts 7 and 11 are particularised slightly differently, however they each plead identical alleged contraventions. It therefore follows that one of those counts should be dismissed as it is repetitious.
However regardless of which count is to be dismissed, the father alleges the mother has breached Order 28 which provides for the parties to “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”.
The first difficulty with counts 7 and 11 is that there is no evidence before the court that there was indeed a school Father’s Day breakfast on 2 September 2022 (beyond the father’s assertion). However, even if I were to accept that there was a Father’s Day event that day, there are two fundamentally fatal flaws with the alleged contraventions as follows:
(a)Firstly, a school Father’s Day event does not fit within any of the categories of activities provided for in the order. It is not a sporting activity. It is not a social activity. It is not an extracurricular activity. Any ordinary meaning for each of those activities would not encompass a school event.
(b)Secondly, even if a school Father’s Day event was encompassed by Order 28, the order does not mandate the children’s attendance at any activity. Instead, the order requires the parties to each use their “best endeavours” to have the children attend sporting, extracurricular and social activities. Implicit in the use of the words “best endeavours” is that the children may not attend such activities. This is something that the father himself accepts, as he has deposed to resigning himself to the fact that he will not attend the Father’s Day event going forward unless the children are in his care.
For these reasons, Counts 7 and 11 are dismissed.
In relation to Count 8, the alleged contravention is said to have occurred on 1 September 2022 at 5.08 pm, being the afternoon prior to the school Father’s Day event.
The father alleges the mother contravened Order 20 which requires the parties to “communicate with each other by text message or email concerning the parenting of the children, unless it is an emergency.”
The father alleges the mother contravened this order because at 5.08 pm on 1 September 2022 the mother’s solicitor wrote to the father to advise him (among other things) that moving forward the mother would be communicating with the father by text message only and not email.
In circumstances where Order 20 envisages either text or email communication, there is no basis to assert that the mother has contravened Order 20 by advising that she only intended to communicate with the father by text message.
Accordingly, Count 8 is dismissed.
Counts 2, 3, 4, 9 and 12 – Communication and attendances at extra-curricular activities
Counts 2, 9 and 12 are all alleged contraventions of Order 28. These contraventions are alleged to have occurred on each 31 January 2023 (Count 2), 27 August 2022 (Count 9) and 1 June 2022 (Count 12).
On each of those dates the father asserts that he sent correspondence to the mother regarding extracurricular activities he proposed to have the children participate in. The father complains that on each occasion the mother failed to respond to his communication.
As discussed earlier in relation to the alleged contraventions relating to Father’s Day (Counts 7, 8 and 11), Order 28 provides for the parties to “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”.
While I accept that the communications relating to sport and a “[Games] party” fit within the activities provided for in Order 28, as identified earlier, the use of the term “best endeavours” envisages that a parent may not facilitate such attendances. If the intention of the court was that the children should attend these activities, the order would have mandated each of the parents facilitating the children’s attendances at any such activities when the children are in their respective care.
Some force is given to this conclusion in circumstances where the final parenting orders also does not require the parents to agree which sporting, extracurricular and social activities the children are to attend. If the orders provided for this to occur, coupled with an order requiring the parents to facilitate the children’s attendances at these activities, then there would be a basis for a contravention application. This however is not the case here.
Accordingly, Counts 2, 9 and 12 that allege a breach of Order 28 are dismissed.
Count 2 additionally pleads a contravention of Order 20, as do Counts 3 and 4. These contraventions are alleged to have occurred on each 31 January 2023 (Count 2), 4 January 2023 (Count 3), 16 December 2022 (Count 4).
Again, on each of those dates the father asserts that he sent correspondence to the mother regarding the extracurricular activities that he proposed to have the children participate in. The father complains that on each occasion the mother failed to respond to his communication.
As previously identified, Order 20 provides for the parties to “communicate with each other by text message or email concerning the parenting of the children, unless it is an emergency”. The order however does not mandate either of the parents responding to each and every communication that they receive. If that was the case, the orders would require the parent receiving the communication to respond, likely within a certain time frame.
Accordingly, Counts 2, 3 and 4 which allege a contravention of Order 20 are dismissed.
Count 5 – Exchange of Y’s school shoes
The alleged contravention, while pleaded to have occurred on 16 September 2022, in fact if understood correctly commenced on 16 September 2022 and continued until 25 December 2022.
In relation to this contravention, the father alleges that the mother retained the child Y’s black school shoes, resulting in Y not having the correct school shoes for 3 days of each week when in the care of the father.
The difficulty however with this alleged contravention is that the father makes bare assertions without any evidence in support, in particular:
(a)There is no evidence which establishes Y’s school uniform requirements, and the need for “black school shoes”.
(b)There is no evidence which establishes on which day(s) of the school week commencing 16 September 2022 until 25 December 2022 that Y was required to wear “black school shoes”.
(c)There is no evidence that Y’s black school shoes were retained by the mother.
(d)There is no evidence that Y’s “black school shoes” were from the father’s house.
Moreover, Order 21 does not mandate the exchange of all of the children’s items (clothing, shoes, toiletries, medication and toys etc). Rather the order provides that the parents “use their best endeavours to ensure” those items “from the other party’s house [are] returned to that party at the changeover of the children”. The order therefore envisages that items travelling between the parent’s homes may not be returned.
For all of these reasons I do not consider that Count 5 is made out.
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.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 25 September 2023
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