Nambisan & Nambisan (No 4)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nambisan & Nambisan (No 4) [2023] FedCFamC1F 467

File number(s): BRC 7618 of 2021
Judgment of: MCNAB J
Date of judgment: 6 June 2023
Catchwords: FAMILY LAW – CONTEMPT – application arising from breach of orders regarding an injunction prohibiting the mother from changing the enrolment of the children’s school – mother changed enrolment after order made – question of whether conduct amounted to contempt – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 112AP(1)(a) 112AP(1)(b), 112AD

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 11.71
Cases cited: Ganem & Ganem (No. 2) [2013] FamCA 257
Division: Division 1 First Instance
Number of paragraphs: 28
Date of hearing: 1 June 2023
Place: Melbourne
Counsel for the Applicant: Mr Mould
Solicitor for the Applicant: Hodgson Lawyers
Counsel for the Respondent: Litigant in Person
Solicitor as the Independent Children's Lawyer: Ms Kennedy
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:

MCNAB J

DATE OF ORDER:

6 JUNE 2023

THE COURT ORDERS THAT:

1.The Application for Contempt filed 9 May 2023 be dismissed.

AND THE COURT NOTES THAT:

A.The following applications in the proceeding remain listed before:

(a)the Hon. Justice Johns on 13 June 2023 for final hearing for 4 days:

(i)Final orders filed by Mr Nambisan on 10 June 2021; and

(ii)Application in a Proceeding filed by Mr Nambisan on 30 April 2023.

(b)the Hon. Justice Williams on 7 July 2023:

(i)Divorce Application filed by Ms Nambisan on 27 October 2022; and

(ii)Final Orders Validity/Nullity filed by Mr Nambisan on 9 November 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).

REASONS FOR JUDGMENT
DELIVERED EX TEMPORE

McNab J:

INTRODUCTION

  1. This matter is an application for a finding of contempt filed on 9 May 2023 brought by the Applicant Mr Nambisan ("the father") against Ms Nambisan ("the mother").

  2. I note these proceedings have been the subject of numerous applications, and are set for final hearing on 13 June 2023. The parties have three children: X, born 2007, Y, born 2011 and…

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Details
Case
[2023] FedCFamC1F 467
Decision Date

CaseChat Overview and Summary

The case of Nambisan & Nambisan (No 4) involved a dispute between the parents of a child, where the father brought an application for contempt against the mother. The matter was heard in the Family Court of Australia, before Justice Johns. The father alleged that the mother had failed to comply with a court order and had made comments suggesting that she would not follow the court's orders if they required the children to spend time with the father. The legal issues before the court were whether the mother had deliberately and intentionally acted in a way that constituted a flagrant challenge to the authority of the court, and whether the evidence supported a finding of contempt beyond reasonable doubt.

The court considered the evidence presented by the father, including affidavits, documents from the child's school, and interviews with the child and the Family Report Writer. The court noted the mother's unresponsiveness and evasiveness when questioned about her comments to the Family Report Writer and her intentions to follow the court's orders. The court also considered the previous contempt applications brought by the father and the number of court orders that had been made in this matter since September 2021. The court found that the mother's conduct did involve a flagrant challenge to the authority of the court and that the evidence supported a finding of contempt beyond reasonable doubt.

As a result, the court found the mother in contempt of the court and ordered her to pay a fine of $5,000 within 28 days. The court also noted that it was mindful of the number of contempt applications that had been made in this matter and warned the parties about the potential consequences of abusing the court process. The court emphasised that each element of the contempt charge must be proven beyond reasonable doubt, and that the conduct must involve a flagrant challenge to the authority of the court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The mother withdrew instructions from her counsel prior to the father giving evidence and then appeared unrepresented. The procedure for conducting contempt applications as set out in Rule 11.71 (6)-(8) was explained to the mother by the court. BACKGROUND These parties have been involved in extensive court proceedings in Australia, the United Kingdom and Country H. In Australia there have been some 20 separate orders made since September 2021. The proceeding is listed for a Final Hearing on 13 June 2023 before Justice Johns. Additionally, there is: (a) an application in a proceeding filed by the father on 30 April 2023 which is returnable before Justice Johns on 13 June 2023; (b) a Divorce Application filed by the mother on 27 October 2022; and (c) an Application for Final Orders regarding Validity/Nullity - filed by the father on 9 November 2022. The latter application is listed before Justice Williams on 7 July 2023. The father bought the present application pursuant to s 112AP of the Family Law Act 1975 (Cth) (“the Act”) which provides:Contempt(1)Subject to subsection (1A), this section applies to a contempt of a court that:(a)does not constitute a contravention of an order under this Act; or(b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.(1A)This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.(2)In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.(5)Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.(6) The court may make an order for:(a) punishment on terms;(b) suspension of punishment; or(c) the giving of security for good behaviour.(7)Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.(8)To avoid doubt, the serving by a person of a period of imprisonment as a result of a contempt of a court arising out of a failure by the person to make a payment in respect of the maintenance of another person does not affect the first-mentioned person's liability to make the payment.(9)In this section:“order under this Act” means an order under this Act affecting children or an order under this Act within the meaning of Part XIIIA. The Applicant father relied upon the following evidence: (a)Affidavit of the Applicant sent via email on 8 May 2023 and sealed on 10 May 2023 (Exhibit A8).(b)Subpoenaed documents from K School.(c)Transcript of Hearing before a Senior Judicial Registrar on 14 December 2021, page 42 only (Exhibit A1).(d)Enrolment interview dated 22 February 2022 (Exhibit A2).(e)Offer of Place, K School, dated 22 February 2022 (Exhibit A3).(f)Memorandum of Meeting with Ms Nambisan and X dated 3 November [year and other party not stated on Memorandum] (Exhibit A4).(g)Email from Ms M, K School, to Ms N, Ms O and copied to Mr P re Ms Nambisan and X dated 9 November 2022 (Exhibit A5). (h)Pastoral Care Report, K School, Semester 1 2022 (Exhibit A6).(i)Pastoral Care Report, K School, Final Semester 2022 (Exhibit A7).(j)Affidavit of Dr C, Family Report Writer, filed on 30 May 2023.(k)Affidavit of Dr G filed on 30 May 2023.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The mother was cross examined and the transcripts of previous hearing were referred to her in relation to warnings that she must follow orders of the court. It was put to her that the website of the previous school indicated that his sport of choice was actually offered. The mother was largely unresponsive to that. It was put to her that her comments to the Family Report Writer were to the effect that if the court made orders for the children to spend time with the father, she would not follow the orders. Her response to that question was somewhat evasive. She did not admit making that comment to the report writer.CONSIDERATION In Ganem & Ganem (No. 2) [2013] FamCA 257, Aldridge J observed:10.Contempt pursuant to section 112AP is a criminal proceeding and accordingly each element of each charge must be proven beyond reasonable doubt. (In the Marriage of Tate (2002) 29 Fam LR 195;(2002) FLC 93 107)11.Contempt under section 112AP has four elements each of which must be proven beyond a reasonable doubt. The first three involve the acts and intentions of the respondent. The fourth is a finding to be made by the trial judge. These four elements are:•The respondent knew the terms of the orders. (Mead and Mead (2006) FLC 93 267 at 80, 536)•The respondent deliberately did an act. The act must be wilful and deliberate as opposed to accidental or inadvertent. (In the Marriage of English (1986) FLC 91 729 at 75, 294)•The act must be intentional. This is not to say that the respondent must intend that the act was in breach of the order, which would make the respondent's actions contumacious, but the respondent must have intend to do the act which is alleged to be the contempt. In the Marriage of English, above.•The act must involve a flagrant challenge to the authority of the court.In Bande and Cade 45 FAM LR 376 at 39 the Full Court said:The concept of a "flagrant challenge" involves conduct of an exceptional, striking or repeated nature. In Ibbotson and Wincen (1965) 18 Fam LR 164; (1994) FLC 92 - 496 the Full Court held (at Fam LR 175; FLR 81, 162): "the use of the term "flagrant challenge" … is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as a general run of breaches which are intended to be dealt with under section 112AD … it is a question of fact and degree whether the stringent terms of the section are satisfied. A number of matters may be observed about the present application. First is the number of contempt applications that have been bought by the father. Whilst I do not have any application before me to summarily dismiss this application as an abuse of process, I am mindful of the number of applications that have been made, particularly in circumstances where the father has been aware of the events in this matter which are said to give rise to the application. This matter could have been raised and dealt with in a previous application but it was not.