PHU & CHAN (No.3)
[2015] FCCA 1782
•29 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PHU & CHAN (No.3) | [2015] FCCA 1782 |
| Catchwords: PRACTICE AND PROCEDURE – Disruptive behaviour by applicant – disruptive comments in court – where further cross-examination futile – where further submissions futile – where application decided on evidence already taken. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NAF |
| Cases cited: Phu & Chan [2015] FCCA 275 Phu & Chan [2015] FCCA 1208 |
| Applicant: | MS PHU |
| Respondent: | MR CHAN |
| File Number: | SYC 1714 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 21 April, 5 May 2015 |
| Date of Last Submission: | 5 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2015 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
The Respondent has made out a reasonable excuse in respect of Counts 1 and 2 of the Application-Contravention filed on 21 October 2014.
Counts 6 and 7 of the Application-Contravention filed on 21 October 2014 are dismissed.
The Application-contravention filed on 21 October 2014 is dismissed in its entirety.
IT IS NOTED that publication of this judgment under the pseudonym Phu & Chan (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1714 of 2010
| MS PHU |
Applicant
And
| MR CHAN |
Respondent
REASONS FOR JUDGMENT
Application
The Applicant has brought contravention proceedings against the Respondent, who is the father of the parties’ child X, who is now 14 years of age, claiming that he contravened a number of Orders made on 18th June 2013. There were ten separate counts, alleging various contraventions of 12 separate Orders on various dates.
On 12th February 2015, after a hearing an Application for summary dismissal on 4th February 2015, I made orders dismissing Counts 3, 4, 5, 8, 9 and 10 of the Application (Phu & Chan[1]). The balance of the Application was adjourned to 21st April 2015 for hearing.
[1] [2015] FCCA 275
Allegations
The remaining counts are Counts 1, 2, 6 and 7. The Father denies each one.
Count 1 claims that the father contravened Order 5(a) made on 18th June 2013 on eleven separate occasions between 14th February and 7th July 2013 by deliberately denying the child a total of 33 nights of weekend access to the Mother and actively preventing the child from seeing her.
Order 5(a) states:
The child X is to spend time with the Mother as follows:
a) Each alternate weekend during the school term commencing on the first weekend after the commencement of the third school term in 2013;
Count 2 claims that the Father contravened Orders 5(b) and 5(c) on three separate occasions, being the Term 1, Term 2 and Term 3 school holidays in 2014, although, as I commented earlier[2], the allegation in respect of the Term 3 school holidays was framed as an attempt not to allow the child to see the mother.
[2] Phu & Chan [2015] FCCA 275 at [9]
Count 6 claims a contravention of Order 7, which relates to Mothers’ Day. The Mother states:
X’s father did everything he could to prevent X seeing me on Mother’s Day. I pushed very hard to make this access happen, and this should never have been necessary. He also prevented me from attending a school Mother’s Day function with X, even though he had ample notice of my intention to attend. When his attempt to formalise this denial with Ms Webber[3] backfired, he still did all he could to prevent this access and frustrate all my efforts in making this happening. I saw X only from the Sunday morning to the Monday morning, and that’s only because I forced it.
[3] Ms Webber was the Independent Children’s Lawyer at the time
Order 7 states:
Notwithstanding the effect of these Orders X is to spend time with her mother each Mother’s Day commencing at 6:00 pm on the Saturday evening immediately prior to Mother’s Day and concluding at the commencement of school on the Monday morning, with the Mother to collect X from the Father’s residence at the commencement of this period.
Count 7 claims a contravention of Order 11, relating to the child’s birthday. The Mother alleges that the Father did not allow X to spend any time with her on the child’s birthday, noting that this was meant to be her full weekend with the child.
Order 11 provides:
In the event that X’s birthday falls on a weekend when she is in her mother’s care according to these Orders then X will spend time with her father from 9:00 am until 12 noon and for this purpose the Mother must deliver X to the Father at the commencement of that period and collect her from the Father’s residence at the conclusion of that time.
The Hearing
The hearing commenced on 21st April 2015. The Mother was not represented although on that occasion the Father was represented by a solicitor, Mr Tiyce, and Counsel, Mr Guterres. As she was the Applicant, the Mother was cross-examined by Mr Guterres, for the Father.
The Mother’s evidence in cross-examination was highly unsatisfactory. On various occasions she claimed to have had no knowledge of messages that had been sent to her and denied that on one occasion she had even been in Court when a hearing took place. The Mother answered various questions as to why she had not complied with requirements under the orders by stating that “the precedent had been set” (apparently by her) for her to act in other ways.
The Mother’s demeanour in the witness box was nothing short of deplorable. On two occasions she was cautioned by the Bench for answering questions from Mr Guterres by saying “Are you serious? You’re a fool”. On more than one occasion the Mother answered propositions put to her by counsel by shouting out the word “Liar!” in a very loud voice.
I did not find her evidence to be at all convincing.
The hearing resumed on 5th May. By that stage the Father was no longer represented. The mother’s cross-examination of the Father was highly unsatisfactory, as many of her questions were irrelevant and, on occasions, were ruled out as offensive. As an example, one the mother’s early questions began:
I have a definition of evil I would like to share, and it’s a term that I use openly, to describe Mr Chan’s attitude and behaviour.[4]
[4] Transcript 5 May 2015 page 13 lines 41-42
The question, whatever it was intended to be, was not allowed.
The Mother’s behaviour did not improve. The Independent Children’s Lawyer, Mr Christaki, was sitting in the Courtroom not taking part in the Contravention proceedings but waiting to make submissions about interim parenting orders. When I interposed those proceedings to take some short submissions, the Mother kept interrupting, describing the Father as a “compulsive liar”, necessitating several warnings from the Bench about interrupting the proceedings.
After the Mother had been warned on three separate occasions about interrupting the proceedings, she again called out during a submission to the Court by the father, at which stage I issued this rebuke:
Ms Phu, how many more times do I have to tell you not to interrupt? Is there a number? 10, 20, 30? How about none? I’m getting very sick of this. I’m getting very sick of your behaviour. You behaved abominably on the last occasion and you’re descending into it now. I’m warning you. I’m getting sick of your behaviour. Do I make myself clear?[5]
[5] Transcript 5 May 2015 page 24 lines 10-14
Shortly afterwards, I took a brief adjournment. On my return, I said:
I wish to make it clear that I’m not prepared to continue with a hearing where one party continually behaves in a loud and abusive and obstructive manner. I’ve had occasion to warn the applicant on several occasions about interruptions to no avail. I’m not prepared to continue with a hearing where one party continually directs abusive comments, perhaps at the other party, which is understandable, bug at the independent children’s lawyer or other practitioners, which is totally unacceptable.[6] \
[6] Transcript 5 May 2015 page 24 lines 39-45
Conclusions
The demeanour of the Mother and her disruptive behaviour made it well-nigh impossible, in my view, to continue to take any oral evidence or to hear oral submissions. Consequently, I propose to decide the case on the evidence that has been taken, noting that the Mother’s case has been completed and that any further cross-examination of the father will not be at all helpful.
The Father made certain responses through his then Counsel to the Counts still in issue.
As to Count 1, relating to eleven separate allegations of a denial by the Father to the Mother of weekend time with the child, the Father denied the first six occasions. He admitted the next four and claimed that he had a reasonable excuse. The final occasion was a denial on the basis that the Mother was not entitled to spend time with the child under the Orders.
As to Count 2, relating to school holidays, the Father denied the allegation in respect of the first school holiday period, admitted the second but with a reasonable excuse and denied the third on the basis that no contravention had been identified.
Counts 6 and 7 were not admitted.
Section 70NAF of the Family Law Act 1975 (Cth) provides that the standard of proof to be applied in determining matters in contravention proceedings is proof on the balance of probabilities. An applicant must establish a contravention on the balance of probabilities. It is incumbent on a respondent claiming a reasonable excuse for as contravention to establish the reasonable excuse on the balance of probabilities (s.70NAE).
The reasonable excuse claimed is a belief on reasonable grounds that not that not allowing the Applicant to spend time with the child was necessary to protect the health or safety of the child and the denial of the time was not longer than was necessary.
The demeanour of the mother during the proceedings was such that her evidence was lacking in credibility. By comparison, the Father maintained his composure, notwithstanding the ferocity with which the Mother assailed him with questions. I found the Father to be a much more credible witness and I prefer his evidence to that of the Mother in all areas where their accounts differ.
I am satisfied that the Father has established a reasonable excuse in respect of the contraventions alleged in Counts 1 and 2. I am not satisfied that the Mother has made out her case to the requisite standard in Counts 6 and 7.
As a reasonable excuse has been established in respect of Counts 1 and 2 and Counts 6 and 7 have not been established, the Application is dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 29 June 2015
0