Federal Circuit and Family Court of Australia
(DIVISION 1)
Papp & Myers (No 2) [2022] FedCFamC1F 937
File number: SYC 5372 of 2018 Judgment of: HENDERSON J Date of judgment: 2 December 2022 Catchwords: FAMILY LAW – CONTRAVENTION – Reasonable excuse – Where the mother was found guilty at a prima facie level of contravening final orders on 18 occasions – Where the contraventions are in relation to the child spending time with the father and consultation on the schooling – Where the father pressed for a finding the mother did not have a reasonable excuse for nine counts – Consideration of reasonable excuse – Finding the mother guilty without reasonable excuse in respect of all nine counts – Penalty – Where the father sought compensation for expenses incurred and a good behaviour bond without surety for 24 months – Where the father also sought the final orders be varied – Where the mother conceded a bond was an appropriate penalty if reasonable excuse not found and opposed any order for compensation – Consideration of appropriateness of compensation and a good behaviour bond – Finding the expenses incurred by the father were reasonable and incurred in an attempt to spend time with the child – Order made for the mother to compensate the father – Finding a good behaviour bond without surety for 24 months is appropriate to ensure compliance by the mother – Consideration of whether compensation for time lost is in the best interests of the child – Finding it is not in the best interests for an order to compensate the father for time lost – Matter adjourned for consideration of whether the final orders should be varied. Legislation: Evidence Act 1995 (Cth) s 50.
Family Law Act 1975 (Cth) Div 13A, ss 70NAC(a)(ii), 70NAE, 70NAF, 70NBA, 70NDB, 70NEA(1)(c), (2)(a), (4), 70NEB(1)(e)(iii), (4), 70NEC, (5), 102NA.
Cases cited: Delahunty & Delahunty [2019] FamCA 304.
Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214; [2007] FamCA 655.
Ericsson & Beesley (No 3) [2016] FCCA 2111.
Papp & Myers [2020] FamCA 127.
Papp & Myers [2022] FedCFamC1F 936.
Ongal & Materns (No 3) [2013] FamCA 946.
Division: Division 1 First Instance Number of paragraphs: 246 Date of last submissions: 10 November 2022 Date of hearing: 23 September 2022, 10 November 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:
2 December 2022
THE COURT FINDS THAT:
1.The respondent, Ms Myers, born 1977, is found guilty, without reasonable excuse, 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…
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- AGLC
- Papp & Myers (No 2) [2022] FedCFamC1F 937
- Case
- [2022] FedCFamC1F 937
- Decision Date
CaseChat Overview and Summary
The matter of Papp & Myers (No 2) involved a contravention application brought by the father against the mother regarding the care and education of their child. The Family Court of Australia was tasked with deciding whether the mother had breached a prior court order by not consulting the father about the child's schooling and other matters. The father sought financial compensation and other orders against the mother for these alleged breaches.
The legal issues before the court included whether the mother had failed to consult the father regarding the child's schooling and other matters as required by a prior court order, and if so, whether she had a reasonable excuse for these failures. The court also needed to determine if the mother's evidence was credible and whether she was a witness of truth. The father argued that the mother had not consulted him about enrolling the child in a particular school and had not informed him of her intention to home-school the child. The mother, on the other hand, claimed that she had informed the father of these decisions and had his consent, or at least his indifference.
In his reasons for judgment, Harper J found that the mother was not a satisfactory witness and not a witness of truth. The court rejected the mother's claim that she had consulted the father about the child's schooling, finding that the father had made inquiries about the child's enrolment at the school the mother had mentioned, which indicated that no such enrolment had occurred. The court also rejected the mother's evidence about a conversation where the father allegedly gave her his consent to home-school the child, finding that the father had denied such a conversation took place and that the witness supporting the mother's version was not credible. The court ordered the mother to compensate the father for the contravention and to enter into a good behaviour bond.
The court ordered the mother to pay the father $2,738.72 as compensation for the contravention within three months. The mother was also required to enter into a good behaviour bond without surety for a period of 24 months. The matter was adjourned to a later date to determine if the final orders of Harper J should be varied. The court also ordered the release of a Child Impact Report to the parents and reserved the costs of both parties to the adjourned hearing date.
The legal issues before the court included whether the mother had failed to consult the father regarding the child's schooling and other matters as required by a prior court order, and if so, whether she had a reasonable excuse for these failures. The court also needed to determine if the mother's evidence was credible and whether she was a witness of truth. The father argued that the mother had not consulted him about enrolling the child in a particular school and had not informed him of her intention to home-school the child. The mother, on the other hand, claimed that she had informed the father of these decisions and had his consent, or at least his indifference.
In his reasons for judgment, Harper J found that the mother was not a satisfactory witness and not a witness of truth. The court rejected the mother's claim that she had consulted the father about the child's schooling, finding that the father had made inquiries about the child's enrolment at the school the mother had mentioned, which indicated that no such enrolment had occurred. The court also rejected the mother's evidence about a conversation where the father allegedly gave her his consent to home-school the child, finding that the father had denied such a conversation took place and that the witness supporting the mother's version was not credible. The court ordered the mother to compensate the father for the contravention and to enter into a good behaviour bond.
The court ordered the mother to pay the father $2,738.72 as compensation for the contravention within three months. The mother was also required to enter into a good behaviour bond without surety for a period of 24 months. The matter was adjourned to a later date to determine if the final orders of Harper J should be varied. The court also ordered the release of a Child Impact Report to the parents and reserved the costs of both parties to the adjourned hearing date.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
In his Reasons, Harper J found:… I formed the view that the mother was not a satisfactory witness.[6]After hearing the mother’s oral evidence, not only would I agree with this assessment, but for this Contravention Application, I find that she is not a witness of truth.THE EVIDENCE and Reasonable Excuse[6] Papp & Myers [2020] FamCA 127 at [99].Count 1 (consultation regarding schooling) In relation to the prima facie breach of the mother failing to consult the father regarding the child’s schooling for the 2021 year, I find the mother has not established a reasonable excuse for the following reasons. On 28 June 2020, the mother wrote to the father telling him that she had enrolled the child at J School in Town B, to attend school for the following year. This did not occur. The mother asserts that she and the father had a conversation at the front door of her house in or about October/November 2020 when she told the father that she intended to home school the child, given her concerns regarding COVID-19 and the child’s age. In her October 2021 affidavit, the mother deposed that father said to her at that time words to the effect of:Fine [Ms Myers] I don’t care. Do what you like about school.(As per the original) In her affidavit, in support of her reasonable excuse, the mother deposed that the father said to her the effect of:I don’t give a shit what you do.(As per the original) Mr QQ gave evidence that he was present when the conversation occurred and that the father appeared to have no interest in the child’s schooling. Mr QQ was cross-examined and I reject the entirety of the evidence he gave in support of the mother. Mr QQ is clearly in the mother’s camp and was there to support the mother’s version of events. I do not accept his evidence accurately described what occurred at the mother’s house, rather, it supported her narrative. Mr QQ’s evidence was inconsistent with the mother’s evidence in many respects, such as who typed up his affidavit, whether it was handwritten and then typed. I could not see Mr QQ ever criticising the mother or her conduct, and his affidavit was at pains to tell the Court what a wonderful mother and person she was. These are matters not relevant to contravention proceedings. Mr QQ’s credibility was seriously compromised by his overwhelming support in every respect of the mother and her behaviour. The father denied any such conversation took place. I accept his evidence given the following facts as found. On 27 January 2021, the father emailed the principal of J School, being the school the mother had told him the child was enrolled to commence in 2021. The father requested information as to start dates, pick up times, his teacher, etcetera. The principal responded that evening saying the child was due to start on 3 February 2021. On 8 February 2021, the father again contacted J School and was told by the principal that the mother had told her the child would not be attending that year and he was not enrolled at the school.
Decision
Reasons for decision
I will order the mother to compensate the father in the amount of $2,738.72 and that she enter into a good behaviour bond without surety.Conclusion and Orders The matter is to be adjourned to 14 December 2022 for determination if the final orders of Harper J should be varied. I make an order that the Child Impact Report dated 5 August 2022 be released to the parents. I reserve the costs of both parties to 14 December 2022. The mother’s to pay the father the sum of $2,738.72 by way of compensation within three months. The mother is to enter into a bond, without surety, to be of good behaviour, for a period of 24 months and is to attend before a Registrar of the Sydney Registry to enter into that bond prior to the adjourned hearing on 14 December 2022.
Ratio Decidendi
Legal Principle Established
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