Papp & Myers
[2022] FedCFamC1F 936
Federal Circuit and Family Court of Australia
(DIVISION 1)
Papp & Myers [2022] FedCFamC1F 936
File number: SYC 5372 of 2018 Judgment of: HENDERSON J Date of judgment: 23 September 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Prima facie case – Where the father alleges the mother contravened final orders consisting of 18 breaches – Consideration of ‘contravened an order’ – Finding the father has established a prima facie case in respect of all counts. Legislation: Family Law Act 1975 (Cth) s 70NAC(1)(a), (1)(b). Cases cited: Papp & Myers [2020] FamCA 127. Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 23 September 2022 Place: Sydney Counsel for the Applicant: Mr Longworth Solicitor for the Applicant: Michael Conley Lawyers Counsel for the Respondent: Mr Antill Solicitor for the Respondent: Jack Rigg Solicitors ORDERS
SYC 5372 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PAPP
Applicant
AND: MS MYERS
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
23 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The respondent, Ms Myers, born in 1977, is found guilty, on a prima facie basis, of contravening:
(a)Order 2 of the orders made on 22 May 2020, in February 2021; and
(b)Order 5(a)(i) of the orders made on 22 May 2020, on 27 June 2020; and
(c)Order 5(a)(i) of the orders made on 22 May 2020, on 11 July 2020; and
(d)Orders 5(a)(i), 6(b), and 18(c) of the orders made on 22 May 2020, on 25 July 2020; and
(e)Order 5(a)(ii) of the orders made on 22 May 2020, on 8 August 2020; and
(f)Orders 5(a)(ii), 6(b), and 18(c) of the orders made on 22 May 2020, on 22 August 2020; and
(g)Order 5(a)(ii) of the orders made on 22 May 2020, on 12 September 2020; and
(h)Orders 5(a)(ii), 6(b), and 18(c) of the orders made on 22 May 2020, on 26 September 2020; and
(i)Order 5(a)(iii) of the orders made on 22 May 2020, on 10 October 2020; and
(j)Orders 5(a)(iii), 6(b), and 18(c) of the orders made on 22 May 2020, on 24 October 2020; and
(k)Order 5(a)(iv) of the orders made on 22 May 2020, on 14 November 2020; and
(l)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 27 November 2020; and
(m)Order 5(a)(iv) of the orders made on 22 May 2020, on 11 December 2020; and
(n)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 26 February 2021; and
(o)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 27 March 2021; and
(p)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 24 April 2021; and
(q)Orders 5(a)(iv), 6(b), and 18(c) of the orders made on 22 May 2020, on 22 May 2021; and
(r)Order 5(b) of the orders made on 22 May 2020, on 25 December 2020.
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 Papp & Myers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE JUDGMENT
HENDERSON J
Papp and Myers is a Contravention Application of some 18 counts and where the mother has plead guilty to failing to comply with orders to bring the child to Sydney to spend time with the father on no less than six occasions. The child is X and the orders were made by Harper J on 22 May 2020 after a final hearing.[1]
[1] Papp & Myers [2020] FamCA 127.
The mother says she has not breached orders in respect of the remaining counts.
I have not read the mother’s filed material, being an affidavit in relation to her reasonable excuse because, despite the fact that the child has not spent any time with his father in accordance with his Honour’s orders, either in Town B or Sydney, the mother asserts that there is no prima facie case made out by the father for the failure of the child to spend time with him on eight occasions in Town B, or consult with him regarding education and as set out in the father's affidavit filed in support of his Contravention Application on 18 August 2021.
Those occasions range from Saturday 27 June 2020, 11 July 2020, 8 August 2020, 12 September 2020, 9 October 2020, 13 November 2020, 11 December 2020, and Christmas 2020.
The mother’s argument is that the Contravention Application, as drafted, asserts that the mother, without reasonable excuse, refused to allow X to spend time with the father and that it was not the mother refusing to allow the child to spend time with the father, it was the child refusing to spend time with the father, therefore, how could she be guilty of the contravention.
X was four and five years of age at the time of the alleged breaches, primarily and only in the mother’s care, totally dependent upon his mother for all aspects of his care. His mother, no doubt, has him attend school, brush his teeth, go to bed at the appropriate time and engage in appropriate behaviour and she gave evidence he was a good little boy and obedient.
It is extraordinary that a mother of a young child or a parent of a young child would say that a four or five year old child has the right to refuse to attend time with a parent when there have been orders just made by a judge of this Court so very soon after a contested hearing. That a child saying, “I do not want to attend”, it is the end of the situation. The law is clear: a parent must encourage and do all that they can that is reasonable to ensure orders of this Court, particularly in relation to the importance of children having a relationship with each of their parents is carried out. There is not one conduct or action of the mother that I can see in the father’s material or that was put to the father in cross-examination, which supports the mother, even at the slightest end of her obligation, to do all she could to have this child spend time with his father. The father was not shaken on his evidence in any aspect including not consulting regarding education.
The father deposes not one word from her, not one action of encouragement, not one assistance to her son, nothing. Just a “He does not want to spend time with you”. Indeed, the father’s affidavit confirmed in cross-examination is that on 12 September 2020, the father described his son as being more comfortable with him, they spent some time together, they interacted quite well, having coffee and juice with the assistance of the mother’s friend at a shop over the road.
The father described it as “good contact”. They had a hug, he took his son to his little mate NN’s home, they chatted about what they were going to do at NN’s home and he was intending to take a photograph of he and his son. He says at that point the mother intervened and removed him from the father’s care.
After taking the child from the father’s care, his time ceased and from that date onwards, the father could not see his son at all even at the doorway, going to a coffee shop, or having a juice as they had done on at least two occasions prior to that cessation of time.
It is, as the Case Outline of the father sets out, in the Act, that the relevant provision is section 70NAC of the Act as follows:
70NAC Meaning of contravened an order
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; or
(b) otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.[2]
[2] Family Law Act 1975 (Cth) s 70NAC(1)(a)–(b).
The mother was bound by the orders for time and regarding consulting with him in regard to education, which he denies she did. I can see no reasonable attempt whatsoever on the evidence, presented in the father’s case, of the mother endeavouring to take any step, let alone a reasonable step, to have her son spend time his father; it being his right to have a relationship with both of his parents under the Act.
In those circumstances, I find the father has established a prima case in relation to all counts of the contravention set out in his Contravention Application filed on 18 August 2021, being 18 counts commencing from June 2020 to the last occasion which was May 2021.
I will now adjourn, having found the mother guilty at a prima facie level, to read her material as she did thankfully file an affidavit in accordance with my directions, as to reasonable excuse.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson delivered on 23 September 2022. Associate:
Dated: 2 December 2022
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