Relic & Dunwich

[2009] FamCA 597

FAMILY COURT OF AUSTRALIA

RELIC & DUNWICH [2009] FamCA 597

FAMILY LAW – CONTEMPT – Contravention of Court order – Intent

APPLICANT: Mr Relic

RESPONDENT: Ms Dunwich

FILE NUMBER: BRF 12544 of 1998

DATE DELIVERED: 10 June 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 5, 6 & 7 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Forde of Counsel

SOLICITOR FOR THE APPLICANT: Crimmins Burns,  Solicitors, of Brisbane

FOR THE RESPONDENT: The Respondent appeared on her own behalf

IT IS NOTED that publication of this judgment under the pseudonym Relic & Dunwich is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 12544  of 1998

MR RELIC

Applicant

And

MS DUNWICH

Respondent

REASONS FOR JUDGMENT

1. This application’s facts are within a comparatively small compass. I might say that the application has been brought pursuant to the provisions of s 112AP of the Family Law Act 1975 (Cth) assisted by an application of Rule 22.02 of the Family Law Rules 2004 (Cth).

2. Briefly, the facts surrounding this matter are that the parties were married in March 1994.  A child, a daughter, was born in October 1997.  The parties have separated and on 10 September 2002 Registrar Spelleken, as she then was, made numerous orders but including in those orders was the following:

   “That the father have contact with the child as follows:…..

   (n)by telephone on Tuesday, Thursday and Saturday in a week when he is not having weekend contact with the child and in the week when he is having contact with the child on Tuesday and Thursday between 5.00pm and 7.00pm with the mother to initiate the telephone call to a landline telephone number provided by the father.”

3. The procedure in relation to an Application for Contempt of Court pursuant to the provisions of s 112AP is of course controlled by that section as well as Rule 21.08:

   “21.08           At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:

   (a)inform the respondent of the allegation’

   (b)ask the respondent whether the respondent wishes to admit or deny the allegation’

   (c)hear any evidence supporting the allegation;

   (d)hear any evidence for the respondent; and

   (e)determine the case.”

4. I have complied with each of the requirements of Rule 21.08(a) to (e) inclusive.  I point out as would appear from the transcript that I expressed some concern as to whether the respondent to such application, it being a quasi criminal application which requires proof on the part of the applicant beyond reasonable doubt, should be called upon to give evidence prior to there being a finding of a prima facie case against her in this case.  In the circumstances, unfortunately, as is required, a list of documents were put before the Court and the respondent’s affidavit was put before in such list. 

5. Mindful as I am of the difficulties to which I have briefly hereinbefore referred, I did not place any emphasis upon the statements of the respondent contained in such affidavits.

6. At the end of the evidence supporting the allegation I called upon the respondent to indicate whether she pleaded guilty or not guilty to the offence to which she pleaded not guilty. 

7. I then informed her of the various steps which she could take, inter alia:

   (i)Call evidence to support herself but that she need not give evidence at all but may make submissions to me upon the evidence of the applicant and upon his either failure or no to make out the case beyond reasonable doubt;

   (ii)She may give evidence.  If that was the case she would subject herself to cross-examination.

   (iii)She may call other witnesses in her support in relation to the allegations and this naturally would not subject her to cross-examination.

8. She indicated that she did not wish to call evidence and to that extent I was unable to rely upon any of the evidence contained in her application.

9. However, in her submissions I was satisfied on the evidence before me that the following facts appear and I refer and include in particular to the chronology put before me by Forde of Counsel in his submissions.

10. As I have said, I was satisfied that the respondent was able to satisfy me that no offence took place on 10 September 2002, the first day of the orders of Registrar Spelleken, and consequently I delete that allegation. 

11. It will be noted that there are at least 450 particulars of breaches of the order of the aforesaid Registrar Spelleken, as she then was.  The father complained that the wife did not comply on the at least the following dates:  15 December 2003, 15 July 2004, 31 August 2004, 9 June 2005, 21 July 2005, 2 September 2005, 10 August 2006, 30 November 2006, 17 April 2006, 19 July 2007 and 3 October 2007.  See the affidavit of 21 November 2007 (affidavit complained re non-compliance).  In December 2007 the Applicant Father filed a contravention application.  This contravention application was subsequently withdrawn and on 30 October 2008 the applicant filed the subject application.

12. It is alleged in the material of the applicant, as I have said, that the mother failed to facilitate the telephone call on at least 450 occasions since 2002.  I say in passing that the child has now gone to reside with the father.  The residence of the child with the father is confirmed by way of an order of this court of 12 May 2008.

13. The material before me was overwhelming.  The order was not complied with on all of the particulars save for one to which I have hereinbefore referred the mother had failed to facilitate the telephone call.  She, in her submissions, indicates that the intent of the court was that the child was to have telephone contact with the father not particularly in accordance with the order which she conceded in her submissions to the court she had not strictly complied with.  That is farcical in the extreme.  The court ordered a certain method of contact between the father and the child and it ill behoves the mother to indicate that she is entitled to vary such order without either the consent of the respondent or with the approval of the court or to interpret an order which otherwise has no defect on the face of it.

14. She indicates that the intent of the order was carried out by herself in arranging for the child to call at whatever time she thought it was convenient and not forcing the child to comply with the order.  It was not that the child had to comply with the order, it was the fact that the mother had to comply with the order and she has failed to do so.

15. However, that in itself it not determinative, in my opinion, of the finding of contempt. Section 112AP requires that (i) there must be a contravention of an order under this Act; and (ii) it involves in such contravention a flagrant challenge to the authority of the Court.

16. In effect, there are two findings necessary:  (i) that there was a contravention of an order and (ii) that such contravention involves a flagrant challenge to the authority of the Court.

17. Many authorities have been referred to me in relation to what contravention of an order means.  In particular, whether it is necessary for there to be an element of intent in relation to the contravention.  I need not refer to the authorities in full but I am satisfied on the authorities that I can come to the conclusion that there must be an element of intent in the contravention of the order since one could not expect a person to be charged with contempt of court if such contravention was brought about by accident, mistake or inadvertence.

18. On the material before me am I able to find that there was an intent on the part of the respondent to breach the order.  It is patently clear, in my opinion, that the intent is evidenced by:

    (i)the respondent’s view that in fact it was for her to determine how the order of the court was to be interpreted. 

    (ii)Not only was she required and/or requested to comply with the orders of the court and failed to do so but she had the arrogance on one occasion to insist by way of letter that the father comply strictly with the order of 2002.

19. I further believe that the evidence of the mother’s failure to make any endeavour to comply with the order of the court over a lengthy period notwithstanding numerous attempts on the part of the father to have her comply with it, is clear evidence of an intent to contravene the order.

20. The second finding which is necessary for me to come to a conclusion on is is such contravention of the order a flagrant challenge to the authority of the court.

21. “Flagrant” has been looked upon in depth by the authority of Kendling & Anor v Kendling (Contempt) [2008] FamCAFC 154 which was delivered, as I understand on 22 October 2008. This has been looked at not only by the applicant but as well the respondent. It appears to me that what I have to find is whether the breach of the order was “exceptional” or “striking.” The order in itself cannot be said to be exceptional or striking but that is not the test. The test is whether I am satisfied that the breach, as I have found, the intended breach of the order was to use two of the words which have been used in Kendling (there are many other words which have been used in other cases) was exceptional or striking.

22. I believe not only is the fact that the original breach is exceptional but I am of the belief that it is striking that notwithstanding repeated requests on the part of the applicant for the respondent to comply with the order, notwithstanding a request by herself that the order be complied, she continued, flagrantly in my opinion, to breach the order of the court.  I would be surprised if any person, either on a Clapham Common bus or on Bondi tram, would other than be surprised, struck, horrified and scandalised by the failure of a person to comply with an order of a court which was fully entitled to make such order.

23. I therefore have no hesitation in finding that the application has been proved beyond reasonable doubt and that the respondent is guilty of contempt of court.

24. I will now call upon the applicant’s counsel to make any submissions in relation to penalty and I will consider any reply that the respondent may have to such applications. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:     

Date:              10 June 2009