Nambisan & Nambisan (No 4)
[2023] FedCFamC1F 467
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 TEMPOREMcNab J:
INTRODUCTION
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").
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 Z, born 2012 ("the children").
There have been previous applications for contempt brought by the father these being:
(a)Contempt Application filed on 26 April 2022 under r 11.71 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules"), in relation to the mother's alleged failure to attend Mr B, Family Report Writer, on 6 April 2022 for the purpose of a family report and interviews, in breach of Orders of the Federal Circuit and Family Court of Australia of 16 March 2022 as amended 17 March 2022. The application was subsequently withdrawn.
(b)Contempt Application filed on 27 February 2023 in relation to the mother's alleged failure to hand up the children's passports to the Independent Children's Lawyer in breach of Order 11 of the orders of 14 December 2021. The application was subsequently withdrawn on 31 March 2023.
On 28 April 2022 a Contravention Application was brought by the father in relation to alleged breaches by the mother of Orders 9 and 11 of Interim Orders made on 27 October 2021. That application was withdrawn on 25 November 2022.
The present application involves an allegation in these terms:
The Mother changed the enrolment of the child, [X], from the school he was attending [in late] 2021 to [K School] in breach of Order 10 of the orders made on 14 December 2021.
Order 10 made by a Senior Judicial Registrar on14 December 2021 states:
That the mother be restrained and an injunction hereby issue restraining the Mother herself, her servants and her agents from moving residence of the children from the [City L] Local Government Area or from changing the enrolment of the children from their present school ("the relevant Order").
The matter proceeded on 1 June 2023 with the applicant represented by counsel and with the mother represented by counsel, with the mother and her counsel appearing by MS Teams.
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.
The father relied on this evidence to support a finding that the mother was in breach of the relevant order. That evidence established that on 22 February 2022, the mother and the child, X, participated in an Enrolment Interview with K School. Shortly thereafter the mother transferred X from Q School and enrolled him in K School.
The father gave evidence that on either 17 August 2022 or 26 October 2022 he became aware that the mother had enrolled X in K School which he believed to be a breach of Order 10 of 14 December 2021.
The father also relied on the evidence of the transcript of the proceedings before a Senior Judicial Registrar on 14 December 2021 and Justice Smith on 21 June 2022 that the mother had been clearly put on notice regarding the importance of following orders and the consequences that may follow in the event that orders were intentionally breached.
Under cross examination the father gave evidence that the documents produced under subpoena from the child's current school indicated that he was only attending about 60% of the time and that he was unhappy at school. He proposed by his evidence that the child should be removed from his current school (which he alleged he was enrolled in breach of the orders) and enrolled at R School. It was unclear the type of enrolment. He said his son was a sportsman who would benefit from that school.
The father was adamant that in the event that the court found that the mother was acting in contempt of the court by enrolling the child as alleged, that a sentence of imprisonment should be imposed.
I found that there was prima facie evidence that the relevant order had been breached and invited the mother to state her response to the allegation. She stated that:
(a)She had believed that she had not breached the relevant order as the order was directed at requiring her to remain in the City L area and she said that she had received legal advice to the effect that if she remained in the City L area she could change the children's school. In effect she stated that in doing so she would be exercising parental responsibility;
(b)It was not clear who the relevant order referred to as the order did not specifically refer to the children by name;
(c)any breach was not a flagrant breach and that in changing the enrolment of the child's school she was acting in his best interests as:
(i)the child was not happy at the previous school that he was enrolled at and asked to change schools;
(ii)the previous school did not offer the range of subjects that the child wished to study - particularly STEM subjects - and this was a matter of importance to the mother and child as the child wished to pursue studies at university;
(iii)the child wanted to leave the previous school as it did not offer as subjects Advanced Maths, Chemistry, Psychology, Business Studies or have a sports team. She said the child wanted to be on the school sports team and that there was no sports team at the previous school.
(d)she did not intend to act contemptuously towards the court and she apologised to the court.
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.
Since the relevant orders were made, on 31 May 2022 orders were made granting the mother sole parental responsibility for the children of the relationship including X.
Whilst it appears that the orders of 31 May 2022 do not discharge the relevant order, as a result of those orders the mother has sole parental responsibility for the children which includes decisions about education.
I find that the mother knew the terms of the order and took a deliberate step in changing schools.
Whilst the evidence does support a finding that there has been a breach of the relevant order and the mother has clearly been put on notice that she must not breach orders, I do not find that the breach involves a flagrant disregard for the authority of the court as that expression is used in the authorities.
I note that there has been no finding of a contravention of previous orders, notwithstanding the number of orders made and the number of contempt applications issued on behalf of the father.
The children are living with the mother and she is aware of their needs. She has explained why she changed the child's school and I accept that explanation. It is not the case, for instance, that the mother has changed the child's school so as to interfere with the father's spend time arrangements or to provide a basis for relocation to a different place. I accept that she was acting in what she thought were the child's best interests and she did not change schools simply to disregard the authority of the court. Whilst the father said in his evidence that he is concerned about how the child is progressing at the current school and that he would be better off at a different school well away from his current location, he does not currently have parental responsibility for the child. The fact that he thinks the child should now go to a different school is not relevant to the conduct of the mother at the time of the breach.
The mother ought to have notified the Independent Children's Lawyer and the father prior to taking any steps to change school and if agreement was not reached then she should have approached the court to seek orders to amend the relevant order. However, the failure to make that application does not render her conduct in contempt of court. She must now be aware that she is required to comply with orders of the court including any orders for the children to spend time with the father.
The statements of the mother to Dr C, the Family Report Writer, that she will not follow court orders that require the children to spend time with the father are very concerning. Further adopting of a passive aggressive approach to this litigation and the orders of the Court is likely to lead the mother into further ongoing proceedings. By passive aggressive, I mean that the mother would seem to have a capacity to appear to agree to do certain things or profess an understanding that something needs to happen and then refuse to do it, or do something other than what was ordered on the basis that either she did not understand what she agreed to regarding what was ordered or because it is no longer in her or her children's interests to follow the orders. That approach will no doubt lead to further litigation.
That said, for these reasons, the conduct of the mother relating to this breach of orders does not meet the standard required for a contempt finding. The conduct is not that of a 'flagrant challenge' to the Court. It is not distinguished from the general run of breaches which are meant to be brought under s 112AD of the Act.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated: 9 June 2023