Narkis and Narkis (No 3)

[2015] FamCA 747

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO 3) [2015] FamCA 747

FAMILY LAW – CONTEMPT – contravention of court order – where there is a total of eight counts – where the wife admits one count – where the wife denies all other counts – where the wife claims she has a reasonable excuse for non-compliance – where the contravention that was found to have occurred without reasonable excuse was considered less serious – where consideration is given to Division 13A of Part VII of the Family Law Act 1975 (Cth) – meaning of contravened an order – meaning of reasonable excuse – where the standard of proof to be applied is proof on the balance of probabilities – where consideration is given to the procedure for hearing – where consideration is given to whether there should be a change to the consent order.

Family Law Act 1975 (Cth) s 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC, 112AB, 112AC, 112AD, 112AE, 112F, 112G.

Family Law Rules 2004 (Cth) r 21.08

APPLICANT: Mr Narkis

RESPONDENT: Ms Narkis

FILE NUMBER: MLC 210 of 2014

DATE DELIVERED: 9 September 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Melbourne and Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 30 July 2015 and 21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mellas

SOLICITOR FOR THE APPLICANT: Cantwell Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Purcell

SOLICITOR FOR THE RESPONDENT: Michael J Gleeson and Associates

Orders

1. That the Contravention Application is adjourned to a date to be fixed before the Honourable Justice Berman for the Court to hear submissions from the parties as to penalty and costs.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 210  of 2014

Mr Narkis

Applicant

And

Ms Narkis

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This judgment concerns an application for contravention of orders filed on behalf of Mr Narkis (“the husband”) on 4 March 2015.

2. The respondent is Ms Narkis (“the wife”).

3. The application alleges eight counts, six of which relate to the child of the marriage the child E (known as “E”) born in 2002.  One count involves an allegation that the respondent did not allow a health inspection on her home as ordered and a further count relates to valuation issues.

4. The clear focus of the underlying orders relates to parenting and financial matters.

5. It is alleged by the applicant that the respondent failed to comply with orders of the court and that in respect of each count she did so without reasonable cause or excuse.

THE HEARING

1. The hearing was conducted on 30 July 2015, concluding on 21 August 2015.

2. The parties were each represented by solicitors and counsel. Counsel for the respondent emphasised that the wife was only represented for the currency of the contravention hearing.  When challenged as to whether the terms of engagement included representation for any sentencing hearing if I found that any of the counts were proven, counsel answered in the affirmative.  That representation is subject to the express instruction of the respondent.

BACKGROUND

1. The applicant was born in 1956.  The respondent was born in 1966. The parties commenced their relationship in about November 2000 and were married 2002, separating in late 2012.  There is one child of the marriage namely the child E born in 2002 (the child) now aged 13 years.  The child lives with the respondent in Melbourne.  The applicant currently resides in the United States of America.

2. The respondent has two children from her first marriage, Ms KK who is over the age of 18 years and LL who will attain 18 years in late 2015. There are no orders that relate to those children and they are not involved in the proceedings.

3. The proceedings were commenced by the respondent filing an Initiating Application on 13 January 2014 seeking financial orders.  The Response filed by the applicant on 26 February 2014 introduced parenting orders.  The parties would appear to have been in substantial conflict and ongoing litigation.

4. Interim orders were made on 5 March 2014, 16 April 2014 and 17 December 2014.

5. It is from those orders that the current application for contravention and the various breaches have their genesis.

6. Since the making of the said orders, the contravention application under consideration is the first such application in the proceedings.  I am aware that subsequent applications for contravention and contempt have been filed by each of the parties but I have had no regard to those applications for the  purpose of assessing whether in respect of any particular count the alleged breach is made out and if so, whether the breach was committed with reasonable cause or excuse.

APPLICATION FOR CONTRAVENTION

1. For ease of reference, the following counts are attributed to the corresponding paragraphs in the said application.

   ·Count 1 – paragraphs 6 and 7 of the application.

   ·Count 2 – paragraphs 8 and 9 of the application.

   ·Count 3 – paragraphs 10 and 11 of the application.

   ·Count 4 – paragraphs 12 and 13 of the application.

   ·Count 5 – paragraphs 14 and 15 of the application.

   ·Count 6 – paragraphs 12 and 13 of the application.

   ·Count 7 – paragraphs 14 and 15 of the application.

   ·Count 8 – paragraphs 16 and 17 of the application.

2. The applicant proceeded with counts 1 to 8 inclusive.

3. At the commencement of the hearing, the respondent admitted count 1 but submitted that she had a reasonable excuse.  The balance of the counts were denied.

COUNT 1

1. Count 1 alleges a breach of paragraph 1(a) of orders made 17 December 2014.

2. The statement of the alleged contravention in relation to count 1 is as follows:

   The respondent without reasonable excuse has failed to provide to the applicant, written notification of the school chosen for the child.

3. Paragraph 1 of the orders provides that the wife be at liberty to enrol the [child] at a school of the wife’s choice and the parties do all things to sign the enrolment form once the wife has made a choice provided:

   (a)The wife provides written notification of the chosen school as soon as is practicable to the husband; and

   (b)Until further order the wife be solely responsible for all fees and expenses associate with such enrolment and education.

COUNT 2

1. Count 2 covers the period between 24 December 2014 and 28 February 2015.  The count alleges a breach of paragraph 3(i) of the orders made 17 December 2014.

2. The statement of alleged contravention in relation to count 2 is as follows:

   The respondent without reasonable excuse has failed to facilitate the husband’s telephone/skype communication with the child.

3. Paragraph 3.1 of the order provides:

   That until further order the husband have telephone/Skype communication with the child each Wednesday at 4.30 pm and Saturday at 10.00 am (AEST) with the wife to do all things to facilitate the telephone/Skype communication.

COUNT 3

1. Count 3 alleges a breach of paragraph 6 of orders made 17 December 2014.

2. The statement of the alleged contravention in relation to count 3 is as follows:

   The respondent without reasonable excuse has failed to sign the joint letter of appointment to engage L Valuers to conduct the valuations of M Street, Suburb N and O Street, Suburb P.

3. The alleged breach is in respect of financial orders but in particular paragraph 6 of the said order provides:

   That the parties forthwith do all things necessary to engage L Valuers (“Valuer”) to conduct valuations of the following properties:-

   (a)M Street, Suburb N; and

   (b)O Street, Suburb P

   and the costs of such of valuations be shared equally between the parties.

COUNT 4

1. Count 4 alleges a breach of paragraph 10(b) of orders made 17 December 2014.

2. The statement of the alleged contravention in relation count 4 is as follows:

   The respondent without reasonable excuse has failed to allow a representative from I Health Services to enter the property at O Street, Suburb P to comply with orders 3 and 4 of 23 June 2014.

3. Paragraphs 3 and 4 of orders made 23 June 2014 provides:

   (3)The husband do all things and sign all documents to enable the wife to deal with the insurer of O Street in relation to the potential insurance claim relating to the roof/mould-related/water damage of that property.

   (4)The cost of engaging I Health Services to prepare and complete a report in relation to works required to O Street be met from the mortgage over O Street within 7 days of receipt of an invoice, the husband to sign all documents to facilitate such payment (capped at $2,000).

4. Paragraph 10(b) of the orders made 17 December 2014 provide:

   That the wife do all things to allow:-

   (b )representative from I Health Services to enter O Street, Suburb P to provide an assessment report and quote as to the mould in the property comply with orders 3 and 4 of 23 June 2014.

COUNT 5

1. Count 5 allegedly occurred between 4 and 25 January 2015 in Melbourne.

2. The statement of the alleged contravention in relation to count 5 is as follows:

   The respondent without reasonable excuse has disrupted and interfered with the husband’s time with the child when she was in his care in January 2015.

3. Paragraph 11 of orders made 17 December 2014 provides:

   That the changeover for the husband’s time with the child pursuant to orders of 23 June 2014 be outside the Suburb P Police Station at the commencement of his time at 5.00 pm on 4 January 2015 and at the conclusion of his time at 5.00 pm on 25 January 2015.

COUNT 6

1. Count 6 allegedly occurred between April and June 2014 in Melbourne.

2. The statement of the alleged contravention in respect of count 6 is as follows:

   The respondent has without reasonable excuse failed to advise the husband of all planned events and arrangements made in respect of the child’s [religious ceremony].

3. Paragraph 5 of the orders made 16 April 2014 provide that the wife forthwith advise the husband of all planned events and arrangements made in respect of the child’s religious ceremony.

COUNT 7

1. Count 7 allegedly occurred on 20 June 2014 and again on 4 January 2015 in Melbourne.

2. The statement of the alleged contravention in respect to count 7 is as follows:

   That the respondent without reasonable excuse failed to provide the child with appropriate clothing, toiletries and footwear for the period of seven days that she was to spend with the applicant in June 2014 and further, that the respondent without reasonable excuse failed to provide the child with appropriate clothing, toiletries and footwear for the period of three weeks that she was to spend with the applicant in the long summer vacation in January 2015.

COUNT 8

1. Count 8 allegedly occurred on 11 March 2014.

2. The statement of the alleged contravention in respect of count 8 is said to be in breach of paragraph 5 of orders made 5 March 2014.

3. The statement of alleged contravention in respect to count 8 is as follows:

   The respondent has without reasonable excuse collected or caused to be collected from school without the consent of the applicant when the child was to be in the care of the applicant pursuant to court orders and thus she hindered and/or prevented the applicant from spending time with the child.

4. Paragraph 5 of orders made 5 March 2014 provides:

   That the father spend time with the child [E] from 7.00 pm this day [5 March 2014] until the commencement of school on Wednesday 12 March 2014 and for that purpose the child shall be collected from the 7-11 Store at 7.00 pm this day at [Suburb N] in [B Street].

THE LAW

1. It is Div 13A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention of orders made in respect of children and Div 1 of Pt 13A that deals with an application for contravention of orders and obligations that do not affect children.

2. The following considerations apply to counts 1, 2, 5, 6, 7 and 8 of the application.

3. Subdivisions C to F of Div 13A of Pt VII provides for the orders that are available to the court that can be made in instances where:

   (a)the contravention has been alleged but not established (Subdivision C);

   (b)the contravention is established but reasonable excuse for the contravention is found (Subdivision D);

   (c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (Subdivision E); and

   (d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (Subdivision F).

4. In relation to count 1 the breach was admitted but it is asserted by the respondent that she has a reasonable excuse for doing so. 

5. At the conclusion of the evidence and as part of submissions made by the applicant’s counsel, there was discussion as to whether if the counts (in relation to parenting orders) were proven and there was no reasonable excuse available to the respondent, was it the position of the applicant that any established breach should be considered as a “serious disregard for his or her obligation under the primary order”.  It was conceded by the applicant’s counsel that any contravention found to have occurred without reasonable excuse should be considered as “less serious”.

SECTION 70NAC – Meaning of “contravened” an order

1. A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)where the person is bound by the order – he or she has:

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order.

SECTION 70NAE – Meaning of reasonable excuse for contravening an order

(1 ) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but not limited, to the circumstances set out in subsections (2), (4), (5), (6) and (7).

(2 ) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reasons referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed by the order and the consequences that may follow if he or she again contravenes the order.

(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

(a)the respondent believed on reasonable grounds that the actions constituting a contravention were necessary to protect the child or safety of a person (including the respondent of the child); and

(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(5) The person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)The period during which because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(6) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)The period during which, because of the contravention, the child and person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(7)   A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a child (including the respondent or the child); and

(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

SECTION 70NAF – Standard of proof

(1 )Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravenes an order under this Act affecting children had a reasonable excuse for the contravention.

(3)The court may only make an order under:

(a)      paragraph 70NFB(2)(a)(d) or (e); or

(aa)     paragraph 70NEB(1)(da); or

(ab)     paragraph 70NECA(3)(a); or

(b)paragraph 70NFF(3)(a);

if the court is satisfied beyond reasonable doubt that the grounds for making the order exists.

1. Section 70NEB sets out the manner in which a court should deal with a contravention in circumstances where it is considered “less serious”.

SECTION 70NEG – Powers of the court

Section 70NEB sets out the power of the court as follows:

(1)If this Subdivision applies, the court may do any or all of the following:

(a)make an order directing;

(i)the person who committed the current contravention; or

(ii)that person and another specified person;

to attend a post-separation parenting program;

(b)if the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates the person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by a person under paragraph (d) – impose a fine not exceeding 10 penalty units on that person;

(e)if:

(i)the current contravention is a contravention of a parenting order in relation to a child; and

(ii)the current contravention results in a person not spending time with a child (or the child not living with a person for a particular period); and

(iii)the person referred to in subparagraph (ii) reasonably incurs expense as a result of the contravention;

make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

(g)if the court makes no other order in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

1. Section NEC provides for the terms and conditions of a bond if a court requires a person to enter into a bond under s 70NEB(1)(d).

RULE 21.08 – Procedure for hearing

1. Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outline the procedure for the hearing of an application for contravention orders.

2. At the hearing of an application mentioned in items 1A, 2, 3 or 5 in Table 21.1 the court must:

   (a)inform the respondent of the allegations;

   (b)ask the respondent whether the respondent wishes to admit or deny the allegations;

   (c)hear any evidence supporting the allegations;

   (d)ask the respondent to state the reasons for the allegations;

   (e)hear any evidence of the respondent; and

   (f)determine the case.

3. As discussed, all of the counts were read to the respondent and it was her clear response that other than count 1 which was admitted subject to her contention of reasonable excuse, she denied each and every allegation in respect of the counts 2 to 8 inclusive.

SECTION 112AB – Meaning of contravene an order

1. A person shall be taken for the purposes of this Part to have contravened an order under this act if, and only if:

   (a)where the person is bound by the order – he or she has:

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order; or

   (b)in any other case – he or she has:

   (i)intentionally prevented compliance with the order by a person who is bound by it; or

   (ii)aided and abetted a contravention of the order by a person who is bound by it.

2. The meaning of reasonable excuse for contravening an order is set out in s 112AC.

3. Circumstances in which a person may be taken to have had a reasonable excuse includes but is not limited to the circumstances as set out in s 112AC(2):

   (2)A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:

   (a)the respondent contravened the order because or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who is bound by it; and

   (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

4. The sanctions for failure to comply with orders are set out at s 112AD(2) and include the following:

   (a)to require the person to enter into a bond in accordance with section 112AF; or

   (b)to impose a sentence by order on the person, or make an order directed to the person in accordance with section 112AG; or

   (c)to fine the person not more than 60 penalty points; or

   (d)subject to subjection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.

5. Demonstrably there is no circumstances where even if a breach is proven in respect of counts 3 or 4 that they would be considered so grievous that the court should properly have regard to imprisonment as a penalty.

EVIDENCE AND SUBMISSIONS IN RESPECT OF THE VARIOUS COUNTS

1. The applicant relies upon an affidavit filed 4 March 2015 in support of the application for contravention.

2. The respondent did not rely on any affidavit material but rather gave evidence by way of examination in chief and was then the subject of cross examination.

3. The court is assisted by the following exhibits:

   ·Exhibit 1 – copy of intervention order dated 30 July 2014.

   ·Exhibit 2 – communication between the parties and their solicitors as to the appointment of real estate valuers.

   ·Exhibit 3 – communication between the respondent and Dr NN from October 2014 to March 2015 concerning inspection of the respondent’s premises by I Health Services.

   ·Exhibit 4 – letters relating to the child’s religious ceremony.

EVIDENCE AND SUBMISSIONS – COUNT 1

1. The applicant relied upon his affidavit filed 4 March 2015 in respect of paragraphs 8 to 19 inclusive.

2. Following the order being made on 17 December 2014, it is the applicant’s contention that as at the date of his affidavit namely 3 March 2015, he still had not been advised of the identity of the secondary school at which the child had been enrolled.

3. The child spent time with the applicant over the December/January 2014-2015 holidays and it is his evidence that when he asked the child to reveal the school, her response was to the effect that she wasn’t sure and in any event she felt uncomfortable discussing it at that time.

4. Correspondence was forwarded to the respondent dated 14 January 2015 Exhibit (“MN2”) to the applicant’s affidavit seeking the following:

   Please advise us which school you have chosen to enrol the child in for the commencement of the school year and provide us with all relevant documentation in relation to said enrolment.

5. It is only as at 21 January 2015 that the child advised the applicant that she had been enrolled at CC School and it is his evidence that the circumstances surrounding the child’s disclosure was distressing.

6. The applicant followed up his earlier correspondence forwarded to the respondent by correspondence forwarded to the Independent Children’s Lawyer (“ICL”) of 3 February 2015 (“MN4”). The focus of that correspondence is directed to an enquiry as to the child’s enrolled school and his concern at a range of correspondence forwarded to the wife in the month of January remaining unanswered.

7. Under cross examination, it was put to the applicant that there was in existence at that time an interim intervention order made in the Magistrates Court in Suburb R on 30 July 2014.  The terms and conditions of that intervention order required that the applicant not commit family violence against either the respondent or the child and that he should not attempt to communicate with either of them other than as may be permitted by an order of this court.

8. The focus of the cross examination was that when the child had attended MM School the father had forwarded a package to the child’s school contrary to the terms of the intervention order.  Either as a result of this action or generally, the father was asked whether he had a poor relationship with his daughter. The applicant denied that there had been any disruption to the relationship, nor that he observed his daughter being distraught or angry.

9. The respondent agreed that she had breached the order.  The only question is whether she had a reasonable excuse in respect of her non-compliance.

10. It is the respondent’s position that she did not wish to tell the applicant the identity of the child’s school because without that knowledge he could not send unsolicited communication and/or packages to the child as he had done at the child’s previous school.

11. The respondent’s position does not explain the lack of response to the numerous correspondence forwarded to her in relation to the child’s school enrolment.

12. There is no suggestion that the respondent sought to amend the order when it became clear that the applicant was insistent upon compliance.

13. It appears that the respondent’s position was to provide no information and deliberately so, but in circumstances where her refusal was not the subject of explanation.  The respondent has admitted the contravention and I find that she has not established a reasonable excuse on the balance of probabilities.

COUNT 2

1. The applicant relies upon paragraphs 20 to 30 as his evidence in support of count 2.  Specifically, his evidence is that between 24 December 2014 and 28 February 2015 he was not able to make either telephone or Skype communication with his daughter on either the Wednesday at 4.30 pm or the Saturday at 10.00 am.  On some of the occasions the applicant left a detailed message for the child but also forwarded a text message to the respondent seeking that she facilitate the communication as ordered.

2. The applicant asserts that the number provided was the child’s mobile phone number and if the applicant rang the number and it was not answered by the child then that is a matter about which she has no control.  She did concede that whatever the issue was on each Wednesday, on Saturday the child attends religious centre.

3. At first the mother raised the possibility that the inability of the applicant to contact the child might be because the child was either at school or was on the school bus.  Obviously that was not a relevant consideration between the dates as alleged.

4. It is also not as simple as the respondent asserting that she could do nothing about the child not being able to contact the father because of her religious commitments.

5. The order of 17 December 2014 was made by consent and it is reasonable for the applicant to assume that there would be compliance with the order particularly given the first instance upon which the applicant alleges a breach occurred was on 24 December 2014, a matter of only seven days from the making of the order.

6. It is clear that there has been a breach of the order and there remains to be considered whether there is a reasonable excuse that is able to be relied upon by the respondent.

7. Whilst it may be that the applicant is not able to disprove that the child did not wish to accept the call, there appears to be no such excuse available in respect of the Saturday morning obligation.

8. The attendance of the child at religious centre may well be an important and appropriate activity, but it is incumbent upon the respondent to consider the obligation to comply with orders when other arrangements are made.

9. In this case I do not consider that those arrangements were properly considered, or at all by the respondent.

10. I do not find that the respondent has made out a reasonable excuse and accordingly I find count 2 proven.

11. It may be that ultimately I will need to consider whether there should be a change to the consent order pursuant to s 70NBA of the Act.

COUNT 3

1. The applicant relies upon paragraphs 31 to 33 as his evidence in support of count 3.  Reference is also made to correspondence sent to the respondent by the applicant’s solicitors on 5 February 2015.  The letter is annexed and marked “MN9”.

2. The allegation is straightforward.  The order of 17 December 2014 required the parties to do all things necessary to engage L Valuers to conduct valuations of certain specified properties.  The applicant asserts that the respondent has been recalcitrant in that regard, ignored the request as set out in a draft joint letter of instruction and then only signed the letter of instruction once she became aware that there was to be an application for contravention filed.

3. The respondent denies that she received the correspondence of 5 February 2015 and refers to her letter to the applicant’s solicitors dated 5 March 2015 together with a further letter from the applicant’s solicitors to her dated 6 March 2015 which was returned signed.

4. There is nothing in the correspondence from the respondent to the applicant’s solicitors which suggests that she received the purported correspondence.  The letter also indicates a willingness to appoint L Valuers and to that end the authority was received and signed by the respondent and returned to the applicants.

5. It appears that the contravention application was served on the respondent at 9.20 am on 6 March 2015.  The respondent does not remember the circumstances surrounding service, but in any event if the date reference on the email header is accurate, the authority was signed by the respondent prior to her receiving the application.

6. I do not consider that the applicant has established on the balance of probabilities that the respondent received the correspondence of February 2015 nor that her compliance with the order was of necessity promoted by the knowledge and/or receipt of the application for contravention.

7. Count 3 is therefore dismissed.

COUNT 4

1. The applicant relies upon paragraphs 34 to 45 as his evidence in support of count 4.

2. There is some history to the factual circumstances of this count. The orders of 17 December 2014 refer to the order of 23 June 2014 in respect of the reference to a possible insurance claim in respect of the O Street property relating to roof/mould-related/water damage to the property.  That insurance claim could only be further explored upon the preparation of a report.  The consent order made provision for the costs of engaging I Health Services to repair and complete a report in respect of the works that would be required to be undertaken.

3. For that process to occur, obviously a representative of I Health Services would be required to attend upon the O Street property, to enter therein and to conduct an inspection and an assessment.

4. The applicant complains that the respondent has failed to come to any arrangement for the attendance of a representative from I Health Services to attend at the home.

5. Demonstrably, the issue has been ongoing as and from at least the date of the June 2014 order.

6. The complaint of the respondent is that as at the date of the application for contravention, the arrangement has not been made and it is alleged that the respondent has actively refused to make any arrangement for the attendance and inspection of the property.

7. Not that it is directly relevant to the determination of whether there has been a contravention of the order, but the applicant refers to the issue of damp and mould in respect of the premises as being an issue that commenced in January 2014 and that it was the respondent who proposed I Health Services undertake the assessment.  It was on that basis that the order of 23 June 2014 was made and by consent.

8. The applicant annexes various correspondence attempting to make arrangements for Dr NN who is the authorised representative of I Health Services to attend the property.

9. The respondent denies that she has resisted the attendance to inspect and assess the mould and resultant damage.

10. She refers to correspondence with Dr NN directly as her attempt to show she has done all that could reasonably be expected to arrange the necessary assessment.

11. The correspondence relied upon by the respondent comprises Exhibit “3” in the proceedings.

12. Whilst the respondent asserts that there is other correspondence, none was produced and I am satisfied that the respondent has had ample opportunity to produce the evidence if it was considered relevant to the alleged breach.

13. The correspondence reveals that there has been communication between the respondent and Dr NN commencing on 22 October 2014 up to and including 25 November 2014.  Arrangements were not able to be confirmed and it is not controversial that the inspection and assessment proposed in the order of 23 June 2014 was not undertaken.

14. Accordingly, on 17 December 2014 the applicant clearly considered that a further and more specific order was required.  That order was made.

15. There is no correspondence as and from 25 November 2014 until 11 March 2015.  Communication on that day confirms that on 10 and 11 March 2015 the applicant had contacted the office of Dr NN and agreement was reached that he would attend the O Street property on 28 April 2015 at 9.30 am for the purpose of performing an indoor air quality and mould inspection with sampling in order to prepare a written report.  A service agreement was provided and a request was made for the applicant to sign the agreement.  As I understand matters, the applicant did sign and the inspection was thereafter able to occur.

16. The issue is whether between 17 December 2014 and 5 March 2015 the respondent had either complied with the order or if she did not comply, then had a reasonable excuse for not doing so.

17. The respondent was not able to provide any explanation as to why arrangements were not made after the order was made but before the applicant filed the application for contravention.

18. I am not able to accept the assertion of the respondent that there were other letters and/or communications with Dr NN in the absence of any reference to those documents.

19. The proceedings had been listed for some time and importantly, whilst there has been a history of the respondent being a self-represented litigant, for the purposes of the application for contravention she has a solicitor and counsel.

20. Whilst ultimately the issue may be relatively minor in terms of its consequence, at least in part I consider that the respondent did not comply with the order and in circumstances where there is no reasonable excuse for her non-compliance.

21. Accordingly, I find on the balance of probabilities that count 4 is proven.

COUNT 5

1. The applicant relies upon paragraphs 46 to 55 as his evidence in support of count 5.

2. There are three separate breaches of paragraph 11 of the orders made 17 December 2014.  They are unconnected with each other.

3. As to 4 January 2015, the applicant alleges that he attended to collect the child at the Suburb P Police Station at 5.00 pm noting that the relevant order provides for the changeover for the applicant’s time with the child to be outside the Suburb P Police Station at the commencement of his time at 5.00 pm on 4 January 2015 and at the conclusion of his time at 5.00 pm on 25 January 2014.

4. The applicant says that he arrived at 4.50 pm and parked in one of the visitor bays with his car being clearly visible to the street and the entrance to the police station.  He states that he did not see the respondent or his daughter but that at 5.10 pm he received an email from the respondent accusing of him of not turning up for the changeover.  He got out of his car and saw the respondent and the child walking towards her motor vehicle.  Even though he attracted her attention, the respondent did not return but proceeded to her car and drove away.

5. Subsequently, the respondent obtained assistance from the police who then attended at the respondent’s home.

6. Shortly thereafter the respondent and the child returned and the applicant’s time with the child continued with a disruption of about 30 to 40 minutes.  The breach is alleged, however, the applicant recognises that in the scheme of things it is most minor.

7. The order is clear and it refers to a handover outside of the police station.  The respondent was apparently in the police station.  Whilst there may have been a mix up in relation to where the changeover was to occur, upon the respondent leaving the police station and walking to her car, I am satisfied that she became aware of the presence of the applicant but continued to her motor vehicle.  Her actions were unnecessary and provocative.

8. I consider that the count is proven and that the respondent has not made out a reasonable excuse.

9. The count includes further allegations that between 13 and 20 January 2015 and between 4 and 25 January 2015, the respondent without reasonable excuse disrupted and interfered with the applicant’s time with the child when she was in his care in the month of January 2015.

10. There was extensive evidence given in respect of these allegations and in particular it is alleged that notwithstanding representations made by the respondent before Johns J on 17 December 2014, the child had been enrolled in the Sports Carnival, it was clear that the applicant would not be agreeing to take the child to the Sports Carnival and it was the respondent’s position that understanding that the court was intending to compel the applicant to take the child to the Sports Carnival, she would make arrangements to withdraw the child from the carnival and to obtain a refund.

1. The respondent says that she did not remove the child with any level of formality but rather, happened to meet a person or persons who are in some way connected with the Sports Carnival organisation and told them that the child would not be attending.

2. The respondent was not able to remember the name or identity of the person or persons to which she had spoken and she concedes that there was certainly nothing in writing.  She was not able to establish that she had made application for the refund as promised.

3. The excuse provided by the respondent was fanciful and she was not able to establish to any satisfactory degree that she had done anything to cancel the child’s enrolment at the Sports Carnival or to seek a refund as she submitted to the court was her intention.

4. The difficulty is that those matters represent a breach not of paragraph 11 but rather, paragraph 12 of the orders made 17 December 2014.

5. A breach of paragraph 12 has not been alleged and accordingly there is no count to which the allegations can attach.

COUNT 6

1. The applicant relies upon paragraphs 56 to 60 as his evidence in support of count 6.

2. The order of 16 April 2014 provides that the respondent advise the applicant of all planned events and arrangements in respect of the child’s religious ceremony.

3. The applicant alleges that he did all he could to seek information from the respondent about the Religious ceremony plans and in particular, he relies upon his solicitors correspondence of 20 May 2014 which specifically refers to the respondent’s obligations pursuant to paragraph 5 of the orders made 16 April 2014 and advises that the applicant had not received any information from the respondent in respect of the religious ceremony.

4. A response from the respondent’s solicitors on 4 June 2014 did not provide information but rather, alleged that the respondent was aware that the applicant had been in contact with the relevant religious centre and that his own enquiries provided all of the relevant information.  The identity of the relevant religious centre was apparently self-evident.  There was no other religious centre that would likely be the venue for the child’s religious ceremony.

5. The applicant agrees that he did make his own enquiries and clearly ascertained significant information, but he complains that it was the respondent’s obligation pursuant to the order to provide the information and in any event his own enquiries did not reveal information that he considered critical namely, the study group at which the child was attending and therefore the dates of her sabbatical.

6. The issue is therefore whether the respondent advised the applicant at all of any information in respect of the child’s religious ceremony but that if she did, whether she did so forthwith and whether it was sufficiently comprehensive to encompass the terms and conditions of the order namely, “all planned events and arrangements made in respect of [the child’s] religious ceremony”.

7. It is clearly a matter of degree.  I suspect that the respondent was somewhat cavalier in her compliance with the order in the sense that she considered the ability of the applicant to obtain the relevant information relieved her of the obligation to do so.

8. Clearly it did not and the intention of the order was to avoid the very issue that took place namely, the need for the applicant to make his own enquiries.  I find that the count is proven, but with some reluctance I am prepared to accept that the respondent considered her compliance to be irrelevant in circumstances where the information was readily available.

9. I do not consider the construct of the order would be sufficient for the respondent to differentiate the type of information that would be significant to the applicant as opposed to information that would be irrelevant.

10. In the circumstances I find that the respondent has demonstrated she has a reasonable excuse for her non-compliance.

COUNT 7

1. The applicant relies upon paragraphs 61 to 65 as his evidence in support of count 7.

2. The issue is straightforward namely, that on 20 June 2014 and 4 January 2015 the respondent failed to provide the child with appropriate clothing, toiletries and footwear.

3. The allegation is denied by the respondent and she alleges that there were photographs taken by her of the extent of clothing and toiletries provided.

4. The applicant alleges that the clothing provided was wholly inadequate, ill-fitting and inappropriate to the extent that he was required to purchase clothing and toiletries.  The respondent denies the allegation.

5. There is no evidence that supports the applicant’s contention and this may be a further area where consideration will need to be given to a different order pursuant to s 70NBA of the Act.

6. In the circumstances of this count, whilst I accept that the applicant considered it necessary to purchase new clothing and toiletries for the child, I am not able to determine that it was necessary because the respondent had failed to provide appropriate clothing, toiletries and footwear for the child.  It is a matter of degree.  I do not consider that count 7 has been proven.

COUNT 8

1. The applicant relies upon paragraphs 67 to 69 as his evidence in support of count 8.

2. The issue is narrow and confined to the child spending time with the father on 11 March 2014.  The applicant alleges that the order was breached by the respondent collecting the child or arranging a third party to collect the child from school without the applicant’s consent.

3. The evidence of the respondent is that she specifically instructed the parents of other school children that they were not to take the child to her religious ceremony class on the basis that her father would be collecting her.

4. She alleges that without any further instruction or involvement by her, a mother of a child attending the class determined that the child should not be left alone and took her to the class.

5. The applicant became aware that the child was not at school and made enquiries as to her whereabouts.  It was confirmed that the child had attended the religious ceremony class, but it is his contention that the respondent acted deliberately to thwart the order and his attendance to collect the child.

6. The respondent denies any involvement and says that she did all that she could to ensure that the child remained at the school in anticipation of the attendance of the applicant.  If arrangements were changed by the conduct of a third party, that occurred not because of any action by the respondent but rather, because it was considered necessary by the delay in the attendance of the applicant.

7. I am not able to determine that the respondent involved herself inappropriately or that she gave instructions to another parent to take the child from the school knowing that the applicant would be attending.

8. Count 8 is not proven.

9. Accordingly, I propose to list the contravention application before me to hear submissions from the parties as to penalty and costs.

I certify that the preceding one hundred and fifty two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 9 September 2015.

Associate: 

Date: