Nambisan & Nambisan

[2022] FedCFamC1F 448

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nambisan & Nambisan [2022] FedCFamC1F 448

File number(s):	BRC 7618 of 2021
Judgment of:	SMITH J
Date of judgment:	21 June 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Contraventions – Father seeks hearing dates for two applications – First application – Contravention for non-compliance with telephone contact orders – Those orders since suspended at contested interim hearing – No utility – not appropriate to allocate scarce Court time at this time – Second Application – Contempt for not attending private family report writer – Mother says reasonable excuse – Mother says she will attend a further interview when arranged – Father will not consent to arranging or paying for further interview – Not appropriate to allocate scarce Court time hear contempt application while father opposes orders that would permit mother to purge any contempt committed. Both applications stood over generally
Division:	Division 1 First Instance
Number of paragraphs:	22
Date of hearing:	21 June 2022
Place:	Sydney
Solicitor for the Applicant:	Cooper Family Law
Solicitor for the Respondent:	The Respondent was Self-Represented
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

BRC 7618 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR NAMBISAN Applicant
AND:	MS NAMBISAN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	21 JUNE 2022

THE COURT ORDERS THAT:

1.The Contempt Application filed 26 April 2022 be stood over generally for allocation for hearing at a later date.

2.The Contravention Application filed 28 April 2022 be stood over generally for allocation for hearing at a later date.

3.The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in these proceedings on or after the date of these Orders.

4.As section 102NA of the Family Law Act 1975 (Cth) applies, the Respondent mother is to do all things necessary to make an application to Legal Aid NSW for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable her to be represented at the final hearing or any hearing requiring cross examination.

AND THE COURT NOTES THAT:

A.The mother is self-represented. The ICL supports an order pursuant to section 102NA in the context of the allegations in this case.

B.The Court has declined to list the Contempt and Contravention Application for final hearing at this time for very short ex-tempore reasons for judgment delivered today, relating in particular to the fact that telephone time has been suspended and to the fact that the father will not consent to orders that would allow the mother to purge her alleged contempt.

1. The parties estimate a total of one (1) days hearing time for the hearing of both applications.
2. The matter is next listed for a directions hearing on 11 July 2022.

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 Nambisan & Nambisan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

SMITH J:

1. This matter was listed by me today for mention to consider readiness and listing dates for hearing for two applications.  I will give short reasons given that I am not willing to list them for hearing at this time so they are on the record.

2. The mother is self-represented. The father is represented. The ICL appeared. The ICL supported an order pursuant to section 102NA given the allegations in the proceedings. I think it is appropriate and I make that order.

3. The first application is a contravention application filed by the applicant father on 24 April 2022.  That application relates to the mother’s failure to comply with orders for phone contact.  I am told by the ICL that, in the meantime, a judicial officer has heard a contested interim application and has suspended that phone time.  That must give rise to the possibility that there is reasonable excuse.  Further, the alleged contravention is not ongoing, so there is no utility in hearing the application at this time in order to obtain compliance.

4. The second, more serious, application is a contempt application filed by the applicant father on 26 April 2022.  The contempt alleged is:

   That contrary to Order 1 of the Orders of the Federal Circuit and Family Court of Australia on 16 March 2022 as amended on 17 March 2022, the Respondent Mother failed to attend upon [Mr B], Family Report Writer on 6 April 2022 for the purpose of family report interviews and further she failed to cause, facilitate and ensure that the Children [X], [Y] and [Z] attended on that date with [Mr B] for family report interviews.

5. I am informed that a limited report was prepared by the expert and was before the judicial officer who heard the interim hearing. 

6. The mother says that she did not commit contempt.  She says she did not attend because the eldest child, aged 15 years, refused to attend and she was concerned about his mental health and state on the day, and did not want to leave him. 

7. Significantly she told me that she will attend a further appointment with the two younger children so that a report may be prepared.  She can do this while the eldest is at school and so in a safe location.

8. Before determining the contempt application, in circumstances where the mother says she had a reason to not attend and is willing to attend the interview if re-arranged, it seems to me that the mother should be offered that opportunity first. 

9. Accordingly, I offered the father the opportunity today to arrange a further private family report session, which he would have to pay for, and I advised the mother that if she was to fail to attend that would suggest contempt and the consequences for her would then likely be very serious, verging on dire. 

10. The father would not agree to my proposed course.  Whilst seeking to press the application against the mother for contempt the father said, through his solicitor, that he has now formed the view that until there is a psychiatric assessment it is not worthwhile having further family report interviews.  The father will not agree, therefore, to orders that would allow the mother to attend a further family report interview to purge any contempt, if any.

11. The ICL does not support the father’s view that a further interview cannot occur and says the matter needs to be advanced.

12. I am not the docket judge and not seized of the necessary details to case manage the proceedings today, and it is not appropriate for me to enter into case management of another Judge’s matter particularly in the context of a recent interim hearing.

13. In these circumstances, where the father is not willing to agree to the mother attending a re-arranged interview, and noting the ICL’s view, I do not consider it appropriate, at this point in time, to allocate extremely scarce judicial hearing time by listing the contempt application for hearing either.

14. I am told that the matter is listed for case management in mid-July.

15. Although this is a case management issue I will publish these short reasons, so there will be no doubt why these applications are not being heard at present, and also so that in case the mother does not comply with orders in future, and if she is found to in fact be acting in contempt, it will be clear the mother has been advised that the orders of this Court are not to be taken lightly. 

16. Once a judicial officer has made a determination, a party is prima facie expected to comply with those orders.  Failure to comply with orders can strike at the heart of the judicial system and at the heart of the capacity of this Court to operate.  Whilst the Court is cautious about imposing significant penalties, there will be times when, if a party is in contempt of Court, there will be no choice, if the integrity of the Court processes are to be protected, than to impose penalties which, as recent cases have shown, can be up to and including imprisonment. 

17. I emphasise that at present there has been no hearing and no finding of contempt.   However, the mother is on notice that parties need to be very mindful of the fact that if the choice is between allowing parties to do whatever they want, and so undermining the legal system, or imposing a punishment up to and including gaol, then a Justice of this Court may ultimately feel that they have no choice but to do that where there is contempt established.

18. Those are my short reasons for declining to list either the contravention application or the contempt application for hearing at this time when the father will not agree to orders for a further report interview.

19. While I do not consider it appropriate to hear these applications at this time, in particular because of the position the father adopts, nor will I dismiss the father’s applications. 

20. It may be that they need to be heard, particularly if the mother fails to comply with any future orders of the Court to attend on a family report writer.  

21. When and if the matters need to be heard and determined they may be referred back to me for allocation for hearing and determination.

22. Those are my reasons.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.

Associate:       

Dated:       24 June 2022