Munayallan & Scott (No 4)
[2021] FedCFamC1F 277
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 Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
There are two applications alleging that a party has contravened a court order before the Court, one filed by Ms Munayallan (“the mother”) on 23 June 2020 and another filed by Mr Scott (“the father”) on 20 December 2019. As the father’s application was filed first in time he will be treated as the applicant for the purpose of the orders.
Both those applications for contravention were set down for defended hearing before me at the request of the parties at a time when her Honour Justice Henderson is reserved in respect of the determination of the final matters.
The determination of these two applications finalises all interlocutory proceedings before the Court.
At the hearing the mother was represented by counsel and the father appeared as a self-represented litigant.
The father appeared when the matter was listed for case management on 3 November 2021 and I made directions for filing of any further consolidated affidavit by either party allowing the parties the opportunity to rely on their previous affidavit if they elected.
The mother filed a further affidavit. The father did not file an affidavit in accordance with the direction.
The father filed an affidavit on 25 November 2021. Pursuant to Order 3 of the 3 November 2021 orders, he had been directed to file an affidavit on or before 19 November 2021.
Pursuant to Rule 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) and having regard to Rule 1.05, I declined to receive that affidavit, save as to paragraphs 26 and 27 which, permissibly, dealt with material he wished to rely on in reply to the mother’s contravention. He was otherwise permitted to rely on his affidavit filed 19 December 2019.
At 10.29 pm on 28 November 2021 the father sent an email to the Court requesting an adjournment. At court on 29 November 2021 that email was marked by me as Exhibit A.
In Exhibit A the father represents that he has “an urgent matter at 10.15 am in the Supreme Court.”
An email was sent to all parties indicating the matter would start, as scheduled at 10.00 am on 29 November 2021 and any party could make an application at that time. The father did not appear at 10.00 am.
The matter was adjourned to allow the Court to endeavour to make contact with the father. After attempts at reaching him via his mobile phone number went unanswered, an email was sent to his email address indicating that the matter was proceeding and he should join the Microsoft Teams link at 10.30 am.
When the matter was again before the Court at 10.30 am Mr Duc, counsel for the mother, indicated that he had received correspondence from a colleague who represents Mr Pham, a party to proceedings in the Supreme Court in which the father is involved. That email chain was marked Exhibit B. Having regard to the content of that email chain I am satisfied that the father’s matter was not before the Supreme Court at 10.15 am (notwithstanding he would have wished it to be, as he had not complied with several of the rules and procedures for listing). Accordingly, I adjourned until noon with a direction that the mother’s lawyers notify the father that the matter would proceed (including potentially undefended) at noon on 29 November 2021.
The father appeared at noon when the matter commenced. At the commencement of the hearing I provided both parties with information about the procedure of a contravention hearing prepared by Legal Aid NSW, a copy of which was marked as Exhibit C. The father took time to read that document. Having read the document he made a further application for an adjournment to seek legal advice.
The father’s further adjournment application was refused. The father was reminded that he had sought to have his matter listed on 3 November 2021, being an application he had filed in December 2019. He had had the opportunity to obtain advice. He had not elected to obtain advice and was now required to proceed. In determining to dismiss the father’s adjournment application it was appropriate to have regard to the potential impact on court resources, on other litigants and on the mother (which may not necessarily be cured by the making of costs order).
THE MOTHER’S CONTRAVENTION APPLICATION
The contravention application set out three alleged contraventions. The mother elected to proceed with two of those alleged contraventions at the hearing.
THE MOTHER’S FIRST ALLEGED CONTRAVENTION
On 15 August 2019 Justice Berman made final parenting orders (“the final orders”) in respect of the parties’ children C born in 2007 and D born in 2010 (“the children”).
The mother contended that the father had contravened Order 12 of the final orders.
Order 12 reads:
The Respondent father shall deliver up to the applicant wife any passport (whether Country X or Australian) pertaining to the children. The wife will hold the passports subject to receiving notice from the father of his intention to take the children overseas, in which case the wife shall deliver up the passports to the husband within 14 days prior to the intended dare of travel, provided that the husband shall return the passports to the wife within 48 hours of the children’s return to Australia.
The mother relied on an affidavit filed on 19 November 2021 in which she gave evidence that the father had the children’s passports for the purpose of a cruise. She says she requested the return of the passports after his return on 28 January 2020 and is yet to receive them.
As is plain from the terms of the order the obligation created by the order was for the father to return the passports to the wife within 48 hours of the children’s return to Australia.
The father contended that he had provided the passports to the parties’ daughter C.
THE MOTHER’S SECOND ALLEGED CONTRAVENTION
On 23 October 2019 Justice Berman made an order that the father pay the mother $4,800 – such payment to be made by 4.00 pm on 18 December 2019 (“the costs order”).
The mother says she is yet to receive those funds.
Justice Henderson made an order for payment by the father to the mother of $12,455 (inclusive of the $4,800 under the 23 October 2019 order).
At the hearing the father accepted that he has not complied with the order to pay the mother $4,800.
As originally filed the mother’s application for contravention contained one further ground. The mother, by her affidavit filed 19 November 2021 abandoned that ground.
THE FATHER’S CONTRAVENTION APPLICATION
On 20 December 2019 the father filed an application for the mother to be dealt with for contravention of the final orders relating to parenting.
In that application the father identified two alleged contraventions.
Order 3(c) of the orders of 15 August 2019 provided that:
The children shall spend time with the husband as follows - for one half of the Christmas school holidays as agreed between the parties but in default of agreement THEN the children are to spend time with the husband in the first half of the Christmas school holidays commencing at 10.00am on the first day of the holidays and concluding at 5.00pm on the middle day of the holidays NOTING that the Christmas school holidays shall be deemed to have concluded at 5.00pm on the last day of the Christmas school holidays before the commencement of the school term.
In both alleged contraventions (as particularised in the father’s application) the father alleged that the mother failed to make the children available to him at “10am on 18-19 December 2019” in contravention of Order 3(c).
At the hearing I formulated for the father’s approval two alleged contraventions arising out of the contentions in his contravention application as follows:
(1) On 18 December at 10.00 am, the mother contravened the order by failing to make the children available to spend time pursuant to Order 3(c) of the orders of 15 September 2019 in so far as she failed to make the children available to spend time with the father.
(2) On 19 December at 10.00 am, the mother contravened the order by failing to make the children available to spend time pursuant to Order 3(c) of the orders of 15 September 2019 in so far as she failed to make the children available to spend time with the father.
The father agreed that the charges as formulated were appropriate.
CONTRAVENTION APPLICATIONS: THE LAW
These proceedings deal with alleged contraventions of both parenting and financial (costs) orders.
Section 70NC of the Family Law Act 1975 (Cth) (“the Act”) provides that a party may be dealt with for contravention of an order under the Act affecting children if and only if:
(a)Where the person is bound by the order – he or she has:
(i)Intentionally failed to comply with the order; or
(ii)Made no reasonable attempt to comply with the order…
The onus of proof is on the applicant to establish each of the components of the alleged contravention. He or she must demonstrate that the party was bound by the order, that there was non-compliance with the order and that the non-compliance was either intentional or alternatively the party alleged to have contravened made no reasonable effort to comply.
Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) applies and the applicant must discharge the onus on the balance of probabilities having regard to the gravity of the allegation.
It is open to a party who has not complied with an order to argue that he or she had a reasonable excuse for the non-compliance. Section 70NE of the Act sets out the definition of “reasonable excuse” (for alleged contravention of a parenting order). Section 112AC of the Act sets out the definition of “reasonable excuse” (for alleged contravention of an order other than a parenting order). In circumstances where the respondent to a contravention application relies on “reasonable excuse” he or she bears the onus of demonstrating that reasonable excuse on the balance of probabilities: s 70NEA of the Act.
To the extent that the mother’s Application for Contravention also seeks that the father be dealt with for alleged contravention of a costs order that application is governed by Part XIIIA of the Act.
Section 112AB of the Act provides that a party may be dealt with for contravention of an order under the Act if and only if:
(a)Where the person is bound by the order – he or she has:
(i)Intentionally failed to comply with the order; or
(ii)Made no reasonable attempt to comply with the order…
This is not a case in which either party has previously been found (in contravention proceedings) to have contravened an order of this Court.
In the case of contraventions under Division 13A of the Act, the court hearing a contravention application may vary parenting orders, require attendance at a parenting course, provide compensatory time, impose a bond, fine, community service or imprisonment.
Where the contravention is alleged but not established, the court may order that the person who brought the contravention application pay some or all of the costs of the respondent.
In the case of a contravention under Part XIIIA of the Act, the court has the power to impose sanctions for failure to comply with orders. This is different from enforcement.
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.”
The difficulty with that evidence is that the father had an obligation under the orders. If, as he contended, he had complied with the obligation by returning the passports via his daughter it is inconsistent with his refusal (unless the mother paid him). Further, from the time the mother filed her application for contravention he was on notice that the mother was alleging he had failed to comply. If his explanation is accurate his obligation was continuing and yet there is no evidence he made any inquiry. I find that on the balance of probabilities he failed to comply with the order to return the Australian passports.
The father immediately informed the mother he did not have the Country X passports. The evidence does not establish that he knowingly and intentionally failed to comply with order for their return.
The second contravention
The orders of 23 October 2019 contained a costs order. The father was obliged under the order to pay to the mother the sum of $4,800 on or before 4.00 pm on 18 December 2019.
The mother says she has not received those funds.
The father agreed he had not made the payment to the mother as required by the orders. The mother therefore established a prima facie case in respect of the second contravention. The onus of proof hence shifted to the respondent.
Inferentially the father contended that he had a reasonable excuse.
A person will have contravened an order where he intentionally failed to comply with the order or made no reasonable attempt to comply with the order: s 112AB of the Act.
The definition of “reasonable excuse” in the Act is not exhaustive. A person will have a reasonable excuse if he did not understand the obligations created by the order. That is not argued by the father here. The father’s evidence concerning reasonable excuse was contained in his affidavit filed 25 November 2021 at [26]. It read:
“In relation to the current costs orders the mother is seeking in her contravention, I refer to the current Financial Statement file [sic] with this court on 19 June 2021 and my emails sent to the mother on the 07/03/2021 and to the mother’s solicitor on 30/07/2021. My financial position has not changed.”
The costs order required the father to pay the mother $4,800 by 18 December 2019. To the extent that the father’s reasonable excuse concerns his capacity (or alleged incapacity) to pay, then his financial circumstances as at 18 December 2019 would have relevance.
The emails sent to the mother’s solicitor (and their attachments) became Exhibit F in the proceedings. Those documents include:
(a)A bank statement for an account with the Commonwealth Bank of Australia (“CBA”) for the period 18 October 2016 to 23 October 2016. The account holder is unclear.
(b)A credit card statement for a CBA credit card in the name of the father for the period 10 September 2016 to 12 October 2016.
(c)A CBA Complete Access bank account statement in the name of the father for the period 1 September 2016 to 28 February 2017.
(d)A CBA Complete Access bank account statement in the name of the father for the period 1 March 2017 to 31 August 2017.
(e)A CBA Complete Access bank account statement in the name of the father for the period 1 September 2017 to 28 February 2018.
(f)A CBA Complete Access bank account statement in the name of the father for the period 1 March 2019 to 31 August 2019.
To the extent that the father sought to rely on a financial statement unsworn but dated 9 March 2021 and filed 19 June 2021 it could not and did not speak to his financial circumstances at the relevant time, namely the time he was required to comply with the court order to pay the mother $4,800.
The father relied on no evidence to demonstrate he had made any payments towards satisfaction of the costs order in the period between December 2019 and hearing.
The father filed no specific evidence of his financial circumstances at the relevant time and accordingly since the onus to establish reasonable excuse by way of admissible evidence falls on him, as the respondent to a prima facie case, he has failed to discharge the onus and failed to establish a reasonable excuse.
Penalty
On behalf of the mother it was urged that the appropriate penalty for the father’s contraventions was imprisonment.
The father argued that the contravention application was a waste of time and if contravention was established there should be no penalty.
Firstly, it should be noted that this is not a case in which a court exercising jurisdiction under the Act has previously found the father guilty of contravening a court order. Accordingly, this matter comes to be determined (in so far as the parenting contravention is concerned) as a contravention without reasonable excuse (less serious contravention): subdivision E of Division 13A of the Act.
As regards the sanctions which may be imposed for failure to comply with orders that do not affect children (the costs order), that falls to be determined by application of s 112AD of the Act.
The contravention of the parenting order did not result in the mother forgoing time with a child. The most appropriate penalty in those circumstances would be that the father enter a bond under ss 70NEC and 112AF of the Act and pay the costs of the mother’s Application for Contravention.
The docket registrar will contact the father at his address in his Notice of Address for Service and make arrangements for him to attend upon the Registry to enter into a bond to comply with orders of this Court and to be of good behaviour for a period of 12 months.
The father will be ordered, pursuant to s 70NEC(1)(f) of the Act, to pay the mother’s costs of the contravention in the sum of $4,070. That sum was said to represent the costs of counsel and solicitor for the date of hearing. It therefore does not include case management appearances or preparation and accordingly is not an order for indemnity costs.
CONSIDERATION: FATHER’S APPLICATION
First contravention: 18 December 2019
The final orders provide for the children to spend time with the father for half of the Christmas school holidays by agreement and failing agreement from 10.00 am on the first day of the holidays.
It is necessary to understand the evidence about when the children’s holidays started and ended. The father’s affidavit filed 19 December 2019 says that 18 December 2019 was the last day of school. That is a common position between the mother and the father.
The father has no entitlement under the orders to have the children delivered into his care at 10.00 am on 18 December 2019. As the mother’s evidence sets out, the orders provide that during term time the children are in her care on Wednesdays and 18 December 2019 was by both parties’ evidence, a school day.
The father asked the mother if he could have time with the children on 18 December 2019 – in light of the mother’s request that the children remain with her during the father’s time to facilitate the children seeing a friend of the mother’s visiting from Western Australia. Neither party was obliged by court order to vary the arrangements. The fact that the children did not spend time with the father on 18 December 2019 will not ground a contravention.
Second contravention: 19 December 2019
If the default provision contained in Order 3(c) of the orders of 15 August 2019 applied then the children were due to come into the father’s care at 10.00 am on 19 December 2019 for the first half of the holidays.
The children did not come into the father’s care at 10.00 am on 19 December 2019.
The parties were at issue about the interpretation of the order. The order provided that the first half of the school holidays commenced at 10.00 am on the first day of the holidays. The father relied on Exhibit E which demonstrated that the last day of school for students was 18 December 2019 and hence the first day of holidays was 19 December 2019. The mother relied on Exhibit D which showed the school holidays as commencing on 23 December 2019. By reading both documents it was plain that all days after 18 December 2019 were staff development days and accordingly I prefer the father’s evidence about when school holiday time was to commence under the default provision. However, for reasons discussed below the contravention application does not fall to be decided by resolution of the controversy about when the default provision was to operate.
The father had provided the mother with notice that he intended to take the children on a cruise leaving Australia on 20 January 2020 (that is during the second half of the school holidays). As a consequence of Order 3(c) that proposed holiday fell outside the father’s default time with the children. In order for the children to take the holiday on the dates proposed by the father the father required the agreement of the mother which was forthcoming. Thereafter the father could not, absent the mother’s agreement, insist on also having the children for the first half of the holidays. Consequently, the father cannot establish that the mother was required to make the children available at 10.00 am on 19 December 2019.
In effect there were two ways in which the order could be complied with – either by the father having time under the default provision (the first half of the school holidays starting at 10.00 am on 19 December 2019) or the father having time by agreement. The father could not insist on agreement, he could only insist on the default provision. However, it is not open to enforce a combination. By indicating an intention to spend time in the second half (to which the mother agreed) – the father could not insist on the first half of the school holidays.
I find that the father did not establish a prima facie case that the mother had failed to comply with a parenting order and accordingly I dismiss the father’s application for contravention filed 20 December 2019.
CONSIDERATION: PENALTIES
The father’s application will be dismissed. The question of penalty to be imposed on the mother does not arise.
An applicant for a party to be dealt with for contravention of an order who is unsuccessful in their application may be ordered to pay costs.
As outlined above I intend to make an order that the father pay the mother’s costs.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 10 December 2021
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