Norris and Matthews (No 2)

[2018] FamCA 1177

FAMILY COURT OF AUSTRALIA

NORRIS & MATTHEWS (NO. 2) [2018] FamCA 1177

FAMILY LAW – CHILDREN – CONTRAVENTION – Where the mother alleges eight contraventions of final parenting orders by the father – Where none of the alleged contraventions reach the standard of a case being made for the father to answer – Application dismissed.

APPLICANT: Ms Norris

RESPONDENT: Mr Matthews

FILE NUMBER: NCC 2226 of 2015

DATE DELIVERED: 16 November 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 16 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

THE APPLICANT: Self-Representing

COUNSEL FOR THE RESPONDENT: Ms Carty

SOLICITOR FOR THE RESPONDENT: Oliver Campbell Heslop Lawyers

Orders

1. The Application – Contravention filed by the mother on 11 September 2018 is dismissed.

2. The mother pay the father’s costs of and incidental to defending the mother’s Application – Contravention as agreed within 28 days, and in default of agreement, as assessed, and payable within 28 days of agreement or assessment.

3. Each party shall make an offer in writing to the other party prior to the next court event [before the Registrar on Wednesday 5 December 2018] in an attempt to resolve the property proceedings.

4. The Rice & Asplund threshold application contained within the Further Amended Response to Initiating Application filed by the mother on 4 October 2018 shall be heard and determined at the time of the final property hearing NOTING:

   a.That application will remain listed for hearing in the event the property proceedings are resolved;

   b.In the event that application was successful further hearing dates would be allocated. The following applications are adjourned to the Duty List at 10.00 am on Monday 17 December 2018:

5. The following applications are adjourned to the Duty List at 10.00 am on Monday 17 December 2018:

   a.Further Further Amended Application filed by the father on 31 October 2018 in relation to the release of funds; and

   b.The interim application of the mother contained in her Further Amended Response filed on 4 October 2018 in relation to spouse maintenance.

6. The mother is granted leave to appear at Court on 17 December 2018 by way of telephone link as follows:

   Prior to 10.00 am on 17 December 2018 please telephone …

   At the prompt, enter the passcode …

   Wait until a court staff member joins you in the conference call.

THE COURT NOTES THAT

(A)This matter will be allocated hearing dates when the Registrar considers the matter is ready.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Norris & Matthews has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2226 of 2015

Ms Norris

Applicant

And

Mr Matthews

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On behalf of the respondent father, it is submitted that the eight contraventions, set out by the mother in her application for contraventions filed 11 September 2018 do not represent a case to be answered by him.

2. Taking each contravention in turn, the first contravention, purportedly of order 5.  I accept that the evidence of a child, without more, is insufficient to justify a contravention, which is a serious quasi criminal matter.  The intention of the order is that the parties notify each other of medical emergencies, illness or injury suffered by the child whilst in their respective care, warranting treatment by a third party.  It is clear that in a case where a child has had to receive treatment, the other parent should be notified.  That the child had some kind of matter that a stranger might have helped with, falls short of what is required.

3. The second and fourth matters.  The evidence of the mother herself is that the father discloses or exposes his contact details, mobile telephone number and email address when there has been a change.  The father has exposed it by including it in correspondence with the mother.  In respect, that is a reference to two and four of the contravention application.

4. Number three is that an allegation that the father yelled profanities at the mother while the mother was on the phone to the child.  I accept the submission that yelling profanities is not sufficient to establish a contravention of non-denigration.  There is no evidence of what was said.  Whilst unpleasant, if profanities were yelled, there would need to be evidence of what words where used that constituted a denigration of the mother, in the presence of the child.

5. In respect of contravention number five, I accept that even if it was the case that the child told her mother, “Daddy keeps telling me you don’t want to see me.  That’s what he tells me.  He tells me you don’t want to see me.”  Even if the child had said that, it would not constitute denigration of the mother by the father.  The mother’s own statement of what the child said is hearsay at a level in which falls short of contravention and arguably does not amount to denigration in any event.

6. Number six, there is no order that restrains the father from relocating and it is apparent that the new postal address of the father is known to the mother, which is the extent of his obligation.

7. In respect of number seven, the same applies.  The assertion of denigration by the father, the evidence about that is simply an assertion that there has been denigration without evidence by the mother or anyone else who is said to have heard it, of what it was that was said and why it could be classified as denigration. 

8. The final contravention is that the father failed to authorise the school.  Clearly, he did, on the mother’s own evidence supplied.  The father provided a copy of the final parenting orders to the school, which discloses that the father has an obligation to authorise the school to release information to the mother.  That is the extent of the father’s obligation.  If the school chooses not to communicate with the mother or supply information, that is a matter between the school and the mother.

9. On that basis I consider that none of the alleged contraventions reach the standard of a case being made for the respondent father to answer and I therefore dismiss the application.

10. In respect of the contravention application brought by the mother on 11 September 2018, the mother has been entirely unsuccessful.  The father seeks an order for his costs, that of his solicitor and counsel.

11. The mother’s submission is that she is not in a financial position to pay costs and that it would impose hardship on her, to do so.  The authorities are that being impecunious does not necessarily deter the Court from making an order for costs.

12. Orders are made accordingly.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 16 November 2018.

Associate: 

Date:  16 November 2018