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.

The parties estimate a total of one (1) days hearing time for the hearing of both applications.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FedCFamC1F 448
Decision Date

CaseChat Overview and Summary

The case of Nambisan & Nambisan [2022] FedCFamC1F 448 involved the father, Mr Nambisan, seeking a hearing for two applications against the mother, Ms Nambisan. The first application was a contravention for non-compliance with telephone contact orders, which had been suspended at a contested interim hearing. The second application was for contempt for not attending a family report interview, with the mother providing a reasonable excuse for her absence. The Federal Circuit and Family Court of Australia (Division 1) heard the matter, with Justice Smith delivering the judgment. The legal issues that the court had to decide were whether to allocate scarce court time to hear the contravention and contempt applications, given the circumstances surrounding each application.

The court found that it was not appropriate to allocate scarce court time to hear the contravention application at that time, as the telephone contact orders had been suspended, and there was a possibility of reasonable excuse. Additionally, there was no utility in hearing the application at that time to obtain compliance. Regarding the contempt application, the court determined that it was not appropriate to allocate scarce court time to hear it while the father opposed orders that would permit the mother to purge any contempt committed. The mother had provided a reasonable excuse for not attending the family report interview and expressed her willingness to attend a further interview when arranged. However, the father refused to consent to arranging or paying for the further interview. The court emphasised that it was cautious about imposing significant penalties but would not hesitate to do so if necessary to protect the integrity of court processes.

In conclusion, Justice Smith decided not to list the contravention and contempt applications for hearing at that time. The court made an order pursuant to section 102NA of the Family Law Act 1975, requiring the mother to apply for funding from Legal Aid NSW for representation at the final hearing or any hearing requiring cross-examination. The matter was next listed for a directions hearing on 11 July 2022. The court did not dismiss the father's applications, and they may be heard and determined when and if necessary, potentially referred back to Justice Smith for allocation and decision.

Orders