FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Munayallan & Scott (No 4) [2021] FedCFamC1F 277
File number(s): SYC 59 of 2010 Judgment of: CHRISTIE J Date of judgment: 10 December 2021 Catchwords: FAMILY LAW – CONTRAVENTION – first occasion of contravention of Court orders – Reasonable excuse not established – Bond – Imprisonment – Penalty for contravention of costs order
FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Affidavits – Admissibility
Legislation: Evidence Act 1995 (Cth) s 140, Family Law Act 1975 (Cth) ss 70NC, 70NE, 70NEC, 70NEA, 112AB, 112AC, 112AD, 112AE, 112AF, Div 13A(E), Part XIIIA Federal Circuit and Family Court of Australia (Family Law) rules 2021 rr 1.05, 5.07 Division: Division 1 First Instance Number of paragraphs: 87 Date of hearing: 29 November 2021 Place: Sydney Applicant: Litigant in person Counsel for the Respondent: Mr Duc Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYC 59 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCOTT
Applicant
AND: MS MUNAYALLAN
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
10 DECEMBER 2021
THE COURT ORDERS THAT:
1.The father’s application for contravention filed on 20 December 2019 is dismissed.
2.The father contravened Order 12 of the orders of 15 August 2019 without reasonable excuse.
3.The father contravened Order 1(a) of the orders of 23 October 2019 without reasonable excuse.
4.The mother’s application for contravention filed 23 June 2020 is otherwise dismissed.
5.Within 28 days of the date of these orders the father, Mr Scott, enter into a bond for a period of twelve months on the following conditions:
(a)That he be of good behaviour; and
(b)That he comply with current orders and future orders of the Family Court of Australia and the Federal Circuit and Family Court of Australia;
and he promises to pay $2,000 to be levied against his goods, chattels and property in the event that he should fail in his obligations under the bond.
6.The father pay the mother’s costs within 28 days in the sum of $4,070.
IT IS NOTED THAT:
A. The father shall attend upon one of the Judicial Registrars of the Sydney Registry as direct in writing and sign the bond.
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 pseudonyms Munayallan & Scott has been approved pursuant to s 121(9)(g) of the Family…
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CaseChat Overview and Summary
The court examined the evidence presented, including the correspondence between the parties and the father's affidavit, to determine if the father had indeed contravened the order. The mother provided compelling evidence that the father had the passports during a cruise in January 2020, and that he refused to return them unless the mother paid him a sum of money. The court found that the father had contravened the order by withholding the passports, despite the mother's explicit request for their return. The court considered the father's explanation, which included his claim that he had given the passports to his daughter to give to the mother, but found that this did not excuse his failure to comply with the order. Consequently, the court concluded that the father had intentionally contravened the order.
In determining the appropriate sanctions, the court referred to the available remedies under the Family Law Act. The court noted that imprisonment was only appropriate if the contravention was intentional or fraudulent and if no other remedy was suitable. Given the father's intentional contravention of the order and the need to ensure compliance with the court's orders, the court considered various sanctions, ultimately deciding on a bond in accordance with the Act. This decision was aimed at ensuring future compliance with the court's orders and maintaining the children's best interests.
The court ordered the father to pay a bond in the amount of $5,000, which would be forfeited if he failed to comply with any future court orders. This decision underscored the importance of adhering to court orders in family law matters and the consequences of failing to do so.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The sanctions which are available are listed in s 112AD(2) of the Act. They include a bond in accordance with s 112AF of the Act, community service, imprisonment or a fine. Imprisonment is only appropriate where the contravention is found to be intentional or fraudulent: s 112AD(2A) of the Act and no other remedy is appropriate: s112AE(2) of the Act.CONSIDERATION: MOTHER’S APPLICATION The first contravention The mother contended that the father had in his possession the children’s Australian passports for the purpose of a Pacific cruise which the children and the father took departing Australia on 20 January 2020. It is plain that the parties engaged in lengthy correspondence about passports prior to the trip and that the children and the father left Australia. Accordingly, it can be safely concluded that the father did indeed have the children’s passports in his possession in January 2020. Further support for this proposition is to be found in the email evidence. When the mother requested the father provide the passports to her in compliance with the Court’s orders he declined to do so unless she paid him a sum of money (referrable to having made an urgent application for issue of the passports). The court order was not expressed conditionally. The father’s obligation to return the passports to the mother could not be avoided on the basis that the mother declined to pay the sum sought by the father. The mother established a prima facie case of non-compliance with the order. It then fell to the father to give evidence. The father’s affidavit dated 25 November 2021 read at [27]:I don’t have the Country X Passports. I have not seen them since the old house in 2013. I gave the Australian Passports to C to give them to her mum. The father and children travelled on a Cruise departing in January 2020 and described as a “Cruise from Sydney”, that had them return to Sydney on 28 January 2020. The father’s obligation under the relevant order was to return the passports within 48 hours of return to Australia. The father was cross-examined. He was taken to the messages exchanged between the parties. On Tuesday 28 January 2020 at 10.58 am the mother sent a message to the father as follows:“Mr Scott I expect you to send the girls over to me with their valid passports also if you can give me the Country X ones just for my records. Thank you.” The father responded on Wednesday 29 January 2020:“N., please give me $420 for the priority fee on the passports as this was completely your fault which you purposely caused the application delay. Otherwise I will submit the passports to the court for holding as per the orders which are seeking in the new application filed this year. I dont [sic] have the Country X passports.” As is plain from the parties’ exchange the mother was explicitly asking the father to return the passports to her, by way of the children. At the relevant time (January 2020) C was 12 years old. The father, during cross examination by Mr Duc said: “if the passports are still in my daughter’s possession I will make sure she gives them to [the mother]. I will reemphasise that I can’t control my daughter in every single aspect but I’ll try to persuade her as much as I can in that respect as a parent.”