Myron and Milson (No. 3)

[2018] FamCA 1049

FAMILY COURT OF AUSTRALIA

MYRON & MILSON (NO. 3) [2018] FamCA 1049

FAMILY LAW – CHILDREN – ORDERS – Contravention – Where it is alleged the mother has contravened a parenting order without reasonable excuse – Where the evidence fails to establish a prima facie case – Where the two counts of contravention are dismissed.

Family Law Act (Cth) 1975

APPLICANT: Mr Myron

RESPONDENT: Ms Milson

INDEPENDENT CHILDREN’S LAWYER: Ms Geysen

FILE NUMBER: BRC 3628 of 2018

DATE DELIVERED: 27 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 27 November 2018

REPRESENTATION

FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr George

SOLICITOR FOR THE RESPONDENT: KLM Solicitors

Orders

1. The Application – Contravention filed by Mr Myron on 24 October 2018 be dismissed.

2. Costs in relation to the applications filed by Mr Myron on 24 and 25 October 2018 and listed for hearing today be reserved to trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myron & Milson (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3628 of 2018

Mr Myron

Applicant

And

Ms Milson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There are two applications before me today.  The first is an Application -Contravention filed by the applicant father on 24 October 2018.

2. There are two counts of alleged contravention against the mother, the first arising out of an alleged contravention without reasonable excuse of paragraphs 3(a) and 3(b) of an Order made by Senior Registrar Spink on 23 August 2018.  The relevant paragraph of that Order is as follows:

   3.The Mother shall:

   (a)advise the father in writing of any changes to [B’s] and [Z’s] living arrangements and medical circumstances as soon as reasonably practicable; and

   (b)if reasonably practicable, invite and take account of the Father’s input in the child [B’s] and [Z’s] living arrangements and medical circumstances prior to making any changes thereto. 

3. It is  alleged by the father that on 24 September 2018 at an unknown time in the place of Brisbane,

   The Respondent Mother [Ms Milson] effected a change in the living arrangements of the Child [B] without informing the Independent Children's Lawyer or Applicant Father or taking the Father’s input into account in this connection.

4. The second count of alleged contravention without reasonable excuse is said to relate to paragraph 5 of the same Order, which provides:

   5.That following the father attending four (4) further sessions of supervised time with [X] and [Y] at [P Group] and complying with the Centre guidelines, the father be at liberty to spend supervised time with [X] and [Y] every second visit thereafter at the Contact Centre in ‘outside supervised time’. Such ‘outside supervised time’ is to occur unless the Supervisor considers it inappropriate. 

5. It is alleged that the mother contravened that Order without reasonable excuse on 17 October 2018 at a time unknown in the place of Brisbane, in that the she:

   …unreasonably prevented the children [Y] and [X] from attending further supervised conduct sessions with the Applicant Father, and unreasonably withheld consent to proposed activities leading to the facility, [P Group] withdrawing its services because managing those issues was too time consuming.  In preventing the children [Y] and [X] from attending supervised contact sessions, the Respondent Mother also unreasonably prevented the children [Y] and [X] from enjoying meaningful contact with the Applicant Father. 

6. Mr George, counsel for the mother, did not require the formal reading of those counts to his client for her to enter her acceptance or denial. He made an application that the Application - Contravention be dismissed on three bases. 

7. The first basis advanced was pursuant to r 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”) which provides:

   A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

   (a)the court has no jurisdiction;

   (b)the other party has no legal capacity to apply for the orders sought;

   (c)it is frivolous, vexatious or an abuse of process; or

   (d)there is no reasonable likelihood of success. 

8. The second basis upon which the Application - Contravention is sought to be dismissed is that it fails at the first hurdle, namely, that the evidence upon which the father relies fails to establish a prima facie case of contravention. 

9. The third basis relied upon is that there is an absence of evidence that the mother has been served by special service by hand, as required by r 7.03 of the Rules.

10. The particular part of r 10.12 relied upon by Mr George is sub-paragraph (d) – that there is no reasonable likelihood of success. I do not find it necessary to separately consider that particular paragraph nor the submission in relation to service because in my view, the evidence upon which the father relies in relation to his Application - Contravention fails on its face to establish a prima-facie case of contravention, and I say that for these reasons.

11. The father, in his affidavit filed on 24 October 2018 at paragraph 6, in relation to the first count of alleged contravention, says this:

    On or about 24 September 2018 [Ms Milson] assumed to accommodate the child [B] in her place of residence with the children [Z], [X] and [Y]. In doing so, I consider that she breached The [sic] Orders by:

    a)Failing to notify the Independent Children's Lawyer or I until 10  days after this had occurred, despite there being no reason why this notification could not have occurred earlier; and,

    b)Failing to even consult with me, let alone taking account of my input in this connection.

12. It will, of course, firstly be observed, that paragraph 6(a) of the father’s affidavit refers to the mother failing to notify the independent children's lawyer.  I have not taken that reference to be an assertion that that formed part of the mother’s legal obligation under paragraph 3(a) or (b) of the Order but rather, simply forming part of the evidence upon which the father relied more generally. But importantly, the evidence at its highest is that on a date which the husband describes as being on or about 24 September 2018 the mother assumed to accommodate the child B in her place of residence.  That evidence is the only evidence relating to what may or may not have amounted to a change in the living arrangements for B. It does not establish that anything in particular did occur and on the face of paragraph 6 itself, the father cannot establish on the evidence when indeed anything happened in relation to a change in B’s living arrangements. 

13. There is nothing else in the affidavit that is relevant to count 1 of the Application for contravention filed on 24 October. Accordingly I dismiss count one of the Application. 

14. Turning then to consider count two. The father relies upon, in support of that alleged contravention, paragraph 9 of his affidavit, which says: 

    On 4 October 2018 I received correspondence from [Ms S] of [P Group] which stated:

    ‘My concerns are regarding the activities. As stated previously it is something that [P Group] are not able to review and monitor on an ongoing basis. My suggestion is that the parties use an alternative Service -provider.’

    …

    [errors in original of father’s affidavit]

15. The paragraph just referred to makes reference to and purports to quote from some correspondence received from P Group. As the current rules of Court require, any document that is relied upon and referred to in an affidavit is not to be filed but rather served on the parties and, if appropriate, tendered at the hearing. For circumstances that are not relevant to this particular decision or determination, the father is not present. However, he appears by telephone.  Without objection, annexure JMM3, which is the one referred to in paragraph 9 of the father’s affidavit, was tendered and became exhibit 2 before me. It is incomplete in that it says, simply, this: 

    Dear [Mr Myron]

    The ICL is free to make contact with me.

    As I am on leave I have limited access to emails and phone reception.

    My concerns are regarding the activities. As stated previously it is something that [P Group] are not able to review and monitor on an ongoing basis. My suggestion is that parties…

    And there it ends. No issue was taken by Mr George, however, that the communication in fact said “My suggestion is that the parties use an alternative service provider”.  The father submits that I can infer that it was in fact the mother’s conduct in not agreeing to him engaging in certain activities which caused the centre to withdraw their services. 

16. Applications for contravention are quasi-criminal. They can, in appropriate circumstances, carry with them significant sanctions, including fines and/or imprisonment. So it is important in those circumstances that the Court be satisfied on persuasive evidence that an Order has been contravened and in this case I am not prepared to make any such inference as suggested by the father. On the face of paragraph 9, the contact centre indicated a suggestion that the parties use an alternative service provider. In those circumstances, I am not satisfied on the evidence relied upon by the father that the mother has prima facie  contravened paragraph 5 of the Order of 23 August 2018 as alleged in count two. 

17. The Application – Contravention is therefore dismissed.  

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 November 2018.

Associate:

Date:  11 December 2018