Spiteri and Walker (No 2)

[2016] FamCA 575

FAMILY COURT OF AUSTRALIA

SPITERI & WALKER (NO 2) [2016] FamCA 575

FAMILY LAW – CONTRAVENTION – Where the mother seeks contravention orders – Where mother ordered to pay costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Spiteri

RESPONDENT: Mr Walker

FILE NUMBER: PAC 5808 of 2008

DATE DELIVERED: 27 and 28 June 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Gill J

HEARING DATE: 27 and 28 June 2016

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Ms Spiteri

SOLICITOR FOR THE RESPONDENT: Mr Graeme Ulbrick of G & D Lawyers

Orders

27 June 2016

Application for Contravention – filed 3 March 2014

1. Items 1, 2, 3, 4, 5 6, 7 and 9 of the Application for Contravention filed 3 March 2014 are dismissed

2. Item 8 of the Application for Contravention filed 3 March 2014 is proved and no reasonable excuse is found for the contravention.  No further order is made.

3. Costs be paid by the Applicant in respect of items 1 to 7 and 9 in accordance with the Family Law scale as taxed or assessed as is appropriate by the Registrar or Taxing Officer and they be assessed on a basis of eight-ninths of the Respondent’s costs in relation to the Application for Contravention filed 3 March 2014 noting that this decision has been handed down at 3.15pm on day 1.

28 June 2016

Application for Contravention – filed 10 April 2014

1. Application for Contravention filed 10 April 2014 is dismissed.  There is no order as to costs.

   Applications for Contravention – 11 August 2015, 1 June 2015, 3 November 2014 and 23 July 2014

2. Counts 1, 2, 5, 7 and 10 of Application for Contravention filed 11 August 2015 are dismissed.

3. Counts 1, 2, 3, 9 and 13 of Application for Contravention filed 1 June 2015 are dismissed.

4. Counts 1, 2, 3, 5, 8, 9, 10 and 11 of Application for Contravention filed 3 November 2014 are dismissed.

5. Counts 2, 3, 4, 5, 6 and 8 of Application for Contravention filed 23 July 2014 are dismissed.

6. No order as to costs is made in respect of the dismissals in (2), (3), (4) and (5) above.

Application for Contravention – 23 July 2014

1. Count 7 is proven and I find a reasonable excuse for the contravention.  No further order made.

2. Count 1 is dismissed and I make no order as to costs.

   Application for Contravention – 3 November 2014

3. Counts 6, 7, 12, 13, 14, 15 and 16 of Application for Contravention filed 3 November 2014 are dismissed.

4. Count 4 of Application for Contravention filed 3 November 2014 is proven.

5. No order as to costs is made in respect of the dismissals in (9) and (10) above.

6. I reserve on the question of consequential orders in relation to the proven contravention (Count 4).

7. The matter is adjourned to 12 August 2016 at 10.00am for hearing of the contravention applications.

8. I direct that the Applicant is to provide any updated chronology outlining the material that she relies upon in respect of each of the remaining counts by close of business Thursday, 4 August 2016.

9. I direct that the Respondent is to file a list of any objections he takes to that identified material by close of business Tuesday, 9 August 2016.

10. I direct that proceedings PAC5808/2008 relating to further contravention allegations filed by the Applicant on 8 June 2016 are to be listed to be determined on, if possible, 12 August 2016.

11. I direct that the Applicant’s chronology document incorporate any references necessary in relation to that set of contravention allegations.

12. I direct that the list of objections likewise incorporate that set.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5808 of 2008

Ms Spiteri

Applicant

And

Mr Walker

Respondent

REASONS FOR JUDGMENT

Two numbering systems have been used to identify the allegations of contravention.  The Applicant prepared a chronology that became Exhibit W1 that numbers each of the counts under the heading of the particular contravention application.  Otherwise each of the allegations appeared in a non-numbered form in the Applications for Contravention and are identified by the date of the alleged contravention, the page of the Application on which they appear and their subject matter.

Application for Contravention – 3 March 2014 – Counts 1-4

1. Having heard the parties regarding the contraventions alleged at pages 4, 5 and 6 of the application which equate to counts 1, 2, 3 and 4 under the heading “Application filed 3 March 2014” of Exhibit “W1” and having, in particular, heard submissions from the Applicant as to what matters those alleged contraventions are connected to and having been taken to, in particular, Annexure “C” of the supporting affidavit filed 3 March 2014 and further the Applicant having conceded that on the face of the descriptions of contraventions on the application it cannot be ascertained what the scope of the contravention is and further, having heard from the solicitor for the Respondent who asserts that the counts are insufficiently particularised to identify the contraventions alleged, I dismiss items 1, 2, 3 and 4 on the basis that the contraventions are insufficiently particularised to fairly enable them to be answered.  I will deal with consequential orders in relation to counts 1, 2, 3 and 4 in due course.

Application for Contravention – 3 March 2014 – Count 5

1. Allegation that on 21 February 2014 the Respondent failed to purchase the required school uniform as determined by the school for D (allegation number 5 of the Applicant’s chronology, appearing at page 2 of the application for contravention).  The Applicant concedes that there is no evidence to support this contravention.  The Application for Contravention is, accordingly, dismissed.  I will make consequential orders in due course.

With counts set out on the chronology marked as exhibited “W1” being counts 1 to 9 I make findings as follows in relation to counts 6 through to 9.

Count 6

1. Count 6 is an allegation that on 21 December 2014 the Respondent failed to purchase the required school uniform for C without reasonable excuse, which is said to constitute a breach of Order 12 of the consent portion of the terms that provides that each party is to obtain and maintain at their own expense a complete school uniform for both C and D.  Such school uniform is to include both a standard uniform and the sports school uniform and all associated items that form part of the child’s school kit.  The conflicting evidence in this case comes firstly from the Applicant reporting a conversation wherein she says that C claimed that the Respondent had not purchased a school uniform.  Contrasting with this evidence is the evidence of the Respondent, subject to cross-examination, where he asserts that he had, in fact, purchased the relevant school uniform.  There is no direct evidence from the Applicant to establish that there was no uniform other than the hearsay material from C.  In comparing that hearsay material with the direct assertions by the Respondent, I am unable to come to the conclusion that he failed to purchase the school uniform.  Accordingly, I make no finding that he has intentionally failed or made no reasonable attempt to comply with the orders and I dismiss the contravention and will make consequential orders in due course.

Count 7

1. Count 7 is the allegation that on 24 December 2013 the Respondent breached Order 13 by withholding C’s full school uniform purchased by the Applicant without reasonable excuse (appearing at page 3 of the Application for Contravention).  In relation to this count the parties called in aid various forms of evidence that they say confirms their case.  The Applicant tendered Exhibit “W2” being a subpoena to the NSW Police Force that indicated that that she had made a complaint to the police that the uniform had not been returned and that the police had contacted the Respondent.  Their contact with the Respondent was not met by any admission on the part of the Respondent that he had so failed to return the uniform.  The Applicant calls in aid the nature of the Respondent’s response which is described by the police in negative terms.  The Respondent, however, explained in his evidence that he has been subjected to a large number of complaints to the police in relation to various matters of compliance and he does not like dealing with the police.  He indicates that he responded to the police that he had returned the uniform and promptly ended the conversation with the police.  He also calls in aid Annexure “D” being a letter from his solicitors to the Applicant wherein it is asserted in the January following the alleged breach that the uniform had been returned.  He further calls in aid Annexure “B” of the Applicant’s affidavit where there is an apparent concession that at least some of the items that belong to C had been returned although it is by no means clear how far the concession extends.  Having heard directly from the Respondent and from the Applicant, I am unable to determine that he has intentionally failed to comply with the order or made no reasonable attempt.  I am unable to come to a finding on the balance of probabilities that he failed to return the uniform.  Accordingly, I dismiss allegation 7.  I will make consequently orders in due course.

Count 8

1. Count 8 is an allegation that the Respondent withheld C’s full school uniform purchased by the Applicant without reasonable excuse on 13 December 2013 being again a breach of Order 13 (appearing at page 3 of the Application for Contravention).  The particular circumstances alleged are that C was to attend a mufti day at school wherein he could wear clothes other than a school uniform.  He returned to the Applicant at the end of that day without the school uniform.  The Respondent agrees that he failed to send C with the school uniform to return to the Applicant on the basis that it was a plain clothes day and he did not wish to burden him with those clothes.  The orders specify that each party is to ensure that each child return to the other parent’s residence with the school uniform provided by that parent at the commencement of time.  On the Respondent’s concession this was not done.  He asserts that his failure to do so is covered by reasonable excuse that is not burdening C with the carrying of this school uniform.  It appears that C is capable of carrying a bag which might house the school uniform.  The Applicant puts this forward as a relatively easy mechanism by which this school uniform could have been returned in compliance with Order 13.  The Applicant’s assertion appears to be correct and there is nothing inherent in the plains clothes day or inherently difficult in the return of the school uniform that meant that failure to do so is covered by reasonable excuse of simply not wishing C to have to carry the uniform.  I do not find that there is a reasonable excuse for the contravention.  I will make consequential orders in due course.

Count 9

1. Count 9 alleges that on 10 December 2013 the Respondent withheld D’s school runners without reasonable excuse (appearing at page 3 of the Application for Contravention).  It is alleged that this constitutes a breach of Order 13 of the orders made by this Court on 12 April 2013 comprising part of the consent terms made on that day.  Specifically, it is asserted that the Respondent failed to return D’s runners being a component of her school uniform that was to be returned to the Applicant.  I found that there was a prima facie case in relation to this matter.  The Respondent gave evidence that he had returned D to school on that day and that there was a plastic bag which contained the school mascot and her runners that accompanied her in the car.  She left the car and left behind the bag.  He later discovered the bag and returned the bag to the school.  This explanation is consistent with what is contained at Annexure “D” of the Applicant’s affidavit being correspondence from the Respondent’s solicitor to the Applicant and so the account received some limited support from January the year after the alleged contravention.  The Respondent’s direct testimony is that he returned the shoes to school.  The Applicant’s testimony is that she did not receive the shoes.  I am unable to find that the Respondent failed to return the shoes to the school and so do not find that he intentionally failed to comply with the orders or made no reasonable attempt to comply with the orders.  That Application for Contravention is dismissed and I will make consequential orders in due course.

Orders following findings

1. I have heard the parties in relation to the consequences that they say ought to flow from the finding of a breach of the order by the Respondent without reasonable excuse.  The Applicant has agreed that the not returning of the uniform on a mufti day is a petty matter.  She has, however, advocated that there be a change to the current orders such that handovers will occur at a contact centre at Suburb L.  I am not provided with any evidence about the availability for costs or degree of convenience or inconvenience of such a centre.  It is put to me that such a centre would log what was or was not returned with the children and hence assist in the resolution of the non-return of items.  Again, I am not given evidence that will enable me to come to a finding that it would be able to do so or that if it did that would resolve the non-return of items.  The objective of these provisions, that is, Division 13A is that I am empowered to make orders to enforce compliance with Orders under this Act affecting children.  That is, my purpose is not to simply provide punishment of persons who might fail to meet their obligations but to make orders to enforce compliance with the current orders.  For the Respondent it is put that the children currently have handover from school, that this occurs from different schools and that C is 15 and so able to look after his own clothing.  Each of the parties seek some change to the orders, the Applicant resists such a change on the basis that if the obligation to return items in respect of C is removed that that will give the Respondent carte blanche to fail to return items.  Given the nature of the breach I am not prepared to remove the obligation on the Respondent to return the items, however, given the petty nature of the breach nor am I inclined to amend the order to cause the parties to conduct their handovers at a changeover centre particularly when there is no evidence which supports me in finding the degree of burden that this will occasion to either of the parties.  Given the petty nature of the breach I simply find that the breach occurred and take no further action.  Returning then to the balance of the alleged contraventions I note that eight of the nine have been dismissed.  In sequence of order of contravention, it is the second which has been found and I have taken no action in respect of that.

2. Section 70NCA sets out a statutory regime for dealing with contraventions that are alleged but not established.  The particular focus of that provision deals with the payment of costs.  I have sought submissions from each of the parties about what should happen in respect of costs.  The Respondent seeks that a portion of his costs be paid, the Applicant resists the payment of costs on the basis that she says the evidence does not support the idea that she has been malicious and she asserts that she has had other difficulties, in particular with the Respondent not paying for the support of the children.  No evidence has been brought to bear on that issue and I note that it is not necessary to find that a party has been malicious to make an order for costs.  Costs do not form a category of punishment of a party, that is, they are not awarded to punish a party and while, if the Applicant had been malicious consequences may follow there is no necessity for me to make such a finding.  However, I am obliged under s 70NCA to apply sub-division (c) to costs considerations in this matter. 

3. I note for count 9, the first in time, I may make an order that the person who has brought the proceedings pay some or all of the costs of another party to the proceedings.  In relation to count 9, I note that the Applicant has been wholly unsuccessful in respect of that count.  The Respondent has engaged legal representation to deal with it and I consider that it is appropriate that she pays his costs in relation to that count.

4. In relation to count 7, again, s 70NCA applies and as the Applicant has been wholly unsuccessful I consider that it is appropriate that she pay the Respondent’s costs of that count.

5. In relation to counts 6 through to 9, s 70NCB applies which means not only may I make an order but that I must consider making an order given that the previous occasions at which a contravention had been brought have been unsuccessful.  In relation to each of those, I note that the Applicant has been wholly unsuccessful and I consider that it is appropriate for her to pay the Respondent’s costs of those contraventions.  I direct that the costs be paid in accordance with the Family Law scale as taxed or assessed as is appropriate by the Registrar or Taxing Officer and they be assessed on a basis of eight-ninths of the Respondent’s costs in relation to the application filed 3 March 2014 noting that this decision has been handed down at 3.15pm on day 1.

Application for Contravention – 10 April 2014

1. Yesterday I commenced dealing with the Contravention Application filed 10 April 2014 by the Applicant.  That contravention allegation relates to a failure on the part of the Respondent to meet his financial obligations for the payment of C’ school fees as at 28 March 2014.  The orders, the subject of these contravention applications, were made on 12 April 2013, by consent, by the Honourable Justice Collier.  Those consent terms included terms of settlement that were made by the Court upon hearing solicitors for the Respondent and the Mother and the Independent Children’s Lawyer.  The terms of settlement under the heading “Specific Issues” deal with issues relating to the schooling of both of the children, the religious upbringing of the children, denigration of the parties in the presence or hearing of the children and also for the financial manner in which the children’s school is to be catered for, namely, that each party is to bear half of the costs of the schooling expenses including not only school fees but also the purchase of school uniforms and payment for matters that are associated with school and school related activities.  Order 12 makes orders that provide for how the children are to be clothed for school, that is, how school uniforms are to be purchased and who has responsibility for the purchase of what school kit.  Orders 14, 15 and 16 deal with the division of school fees, the responsibility for each of the parties to pay half of the school fees for each of the children and when those payments are to be made.  Order 17 defines school fees to include broadly tuition, school excursions, clothing, materials required by the school for specific lessons including sporting or musical activities.  These orders each deal with the proper support of D and C, that is, the financial support in order that they may be raised properly and receive a proper education and receive an education as agreed by both of the parties.  Education is an essential part of the raising of these two children and these orders make provision as to how financial that is to be catered for.  I find that the orders fall within the broad definition of maintenance as dealt with under the Family Law Act 1975.  Despite the fact that these orders appear under the heading of “Specific Issues” and despite the fact that they clearly seem to have formed a part of an overall settlement, without which the settled orders may never have been agreed to, they still bear the character of maintenance orders for the upkeep of C and D.

1. The jurisdiction of this Court is restrained by the operation of s 66E of the Family Law Act 1975.  That section provides that a court must not make a child maintenance order where there could be an assessment made under the Child Support Assessment Act 1989.  These children were born after the commencement of the Child Support Assessment Act 1989.  There appears to be no issue, otherwise, as to jurisdiction for the making of an assessment and there is a concession that an assessment has been made.  In relation to that assessment the Applicant complains that it is as if the assessment was not in place because the father, she says, has not met his obligations under the Child Support Assessment Act 1989. Even if I accept the factual premise that underlines that complaint, which I have for the purposes of argument, it does not displace the operation of s 66E which is not contingent upon whether or not a person is compliant with their obligations under the child support legislation. I note that I have received written submissions on behalf of the Respondent prepared by Mr Ulbrick, his solicitor, and oral submissions from the Applicant. On the construction that I have placed upon the consent terms that I have identified they are each child maintenance orders that each orders which the Court was not empowered to make.

2. Turning to the operation of the contravention provisions, s 70NAC sets out the meaning of contravened an order.  An essential component of a contravention of an order is that a person must be bound by the order.  If the orders were made outside the jurisdiction of the Court, then they do not have a binding effect upon the Respondent.  Accordingly, I find that the contravention filed on 10 April 2014 is not made out on the basis that the Respondent was not bound in the manner that he would be required to be bound to be found to have committed a contravention of the orders in relation to financial obligations for C.  I dismiss the Application for Contravention filed 10 April 2014 and will consider consequential orders.

Applications for Contravention – 11 August 2015 (Counts 1, 2, 5, 7 and 10), 1 June 2015 (Counts 1, 2 , 3, 9 and 13), 3 November 2014 (Counts 1, 2, 3, 5, 8, 9, 10 and 11) and 23 July 2014 (Counts 2, 3, 4, 5, 6 and 8) – Maintenance orders

1. In accordance with my determination that these orders identified constitute maintenance orders, I dismiss using the numbering of the chronology prepared by the Applicant, reconciled with the Contravention Applications, the following counts:

   a)Application filed 11 August 2015 – counts 1, 2, 5, 7 and 10 (Appearing at pages 2 and 4 of the Application for Contravention) are dismissed.

   b)Application filed 1 June 2015 – counts 1, 2, 3, 9 and 13 (Appearing at pages 2, 3 and 3[2^nd occurrence] of the Application for Contravention) are dismissed.

   c)Application filed 3 November 2014 – counts 1, 2, 3, 5, 8, 9, 10 and 11 (Appearing pages 3 and 5 of the Application for Contravention) are dismissed.

   d)Application filed 23 July 2014 – counts 2, 3, 4, 5, 6 and 8 (Appearing pages 6, 7, 3 and 5 of the Application for Contravention) are dismissed.

2. An application for costs has been made by the Respondent in relation to these dismissals.  I am required to apply s 117 of the Act in respect of costs specifically to consider the matters outlined in sub-section 2A.  Given the dismissals, I am obliged to consider awarding costs.  However, in relation to the consideration set out in s 117 I find as follows:

   a)The financial circumstances of each of the parties.  I have been given limited evidence in relation to the financial circumstances of each of the parties and am unable to apply weight to this consideration.

   b)Whether any parties are in receipt of assistance by Legal Aid.  Again I am unaware if either of the parties is in receipt of legal aid although it is clear that the Applicant is not given that she is self-represented.

   c)The conduct of the parties to the proceedings in relation to the proceedings.  There is no matter identified here other than the dismissals. The dismissals have been supported by submissions from the Respondent’s solicitor on the basis of an error of law in the making of the original orders.  Those submissions have come at the beginning of day two of the proceedings.  There was no obligation on the Respondent to have brought this matter to the Court’s attention at an earlier stage, however, if it had been brought at an earlier stage it would have formed a factor in favour of the making of a costs order, although it may not have determined that a costs order would be made.

   d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.  Given the manner of dismissal I am unable to determine whether or not this is the case.

   e)Whether any party to the proceedings has been wholly successful/unsuccessful in the proceedings.  I note that I have identified that in relation to the counts dismissed the Applicant has been wholly unsuccessful.

   f)Whether a relevant offer has been made.  Again, I have no information to suggest that this is the case.

   g)Such other matters as the Court considers relevant.  I have identified to the father’s solicitor in the course of argument that I consider the matter of most importance is the determination as to why it is that these counts have been dismissed.  These counts have been dismissed following a determination that consent orders which dealt with a range of different matters but included these matters which are now categorised as maintenance orders were entered into by each of the parties to dispose of their matters fully.  They were orders that had been relied upon, it seems, up until now.  The making of the orders appears to have been made in jurisdictional error by this Court which is the factor that has led to the dismissal of these matters.  I consider that that particular factor in the circumstances where it is apparent that the parties have considered the orders as binding until this morning militates against an order for costs where the Applicant has been unsuccessful on the basis that it has now been discovered that the orders are not binding.  No order as to costs is made in respect of these dismissals.

Application for Contravention – 23 July 2014 (Counts 1 and 7)

Count 7 (Appearing page 2 of the Application for Contravention)

1. It is alleged that on 5 June 2014 the Respondent breached the order by collecting D before the conclusion of school on that day.  The breach of the orders is admitted by the Respondent, however, he states that he had a reasonable excuse for the breaching of the orders.  The particular order breached is Order 7(b) strictly in its operation as it interacts with Order 6.  Order 6 provides that D is to live with the Applicant and Order 7 provides for the time that D is to spend with the Respondent.  His time is defined as commencing at the conclusion of school on Friday, that is, until that point D is subject to a “live with” order that provides that she live with her mother.  A removal from school before the conclusion of school extends beyond the “spend time with” order contained at 7(b) and intrudes upon the “live with” order contained at Order 6.

2. In terms of reasonable excuse, two matters are put forward by the Respondent.  The first is that his explanation for removing D early from school was to take her to attend at a medical appointment that related to an assessment connected with scuba diving which in turn connected to court proceedings as to whether or not the children could engage in scuba diving.  He asserted that there were difficulties in obtaining a different appointment to see the doctor as it could take months to get in to see the doctor.  The Applicant established under cross-examination that on a subsequent occasion when the Respondent had needed to move doctor’s appointments for the same test the doctor had been able to accommodate him on the next day.  Whether or not it was difficult to obtain a doctor’s appointment at a particular time does not operate sufficiently to constitute a reasonable excuse under the circumstances put forward by the Respondent.  It is not a case where there is any urgent medical need, for example, for treatment purposes.  However, the second matter that the Respondent puts forward as reasonable excuse is a misunderstanding of the operation of the orders.  His evidence was that he did not think that the orders prevented him from removing D early from school as he thought that at that point “D was his”.  Given the structure of the orders this is a reasonably simple mistake to make, in particular, noting that the father has asserted and demonstrated from the witness box difficulties that he has with reading.

3. Section 70NAE provides that one form of reasonable excuse is where the Respondent contravenes an order because or substantially because he did not at the time of the contravention understand the obligations imposed by the order on him.  I find that this was the case on this occasion.  Having made such a determination I will in due course comply with s 70NAE(3) and explain to him the obligations as they flow from the orders in terms likely to be understood by him.  I will consider other consequential orders in due course.

Count 1 (Appearing at page 4 of the Application for Contravention)

1. The second breach alleged is that on 11 July 2014 the Respondent withheld D’s belongings including her school jumper, sports T-shirt and sneakers.  The evidence at its height is contained at paragraphs 19 and 20 of the Applicant’s affidavit wherein she attests to D not having her jumper and D having explained that the Respondent had not given it to her, but also that D was returned to her with a size 6 top rather than the size 8 top that she had been provided with.  The Respondent asserts that he did not withhold items.  On the basis of D’s assertion to the Applicant, I am unable to be satisfied on the balance of probabilities that the Respondent failed to return the jumper with D to school.  I am unable to determine what happened to the jumper, whether it was lost at school or whether it was not returned by the Respondent.  In that state of uncertainty I did not make the requisite finding.

2. In relation to the return of the polo shirt being a size 6 rather than the size 8 that D was provided with I find that the Respondent failed to provide the size 8 top as has been asserted by the Applicant.  She followed up her claims of non-provision of items quickly with the Respondent’s solicitor.  The Respondent explains he does not cause his solicitor to engage in that correspondence.  However, I find that the Respondent did provide a size 6 polo top rather than the size 8 top.  While the order provides that he is to return to her the items that had been sent with the children to him, in order to find a contravention of the order I am required to find in accordance with s 70NAC that where the person is bound by the order as here, he has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.  Given that a polo top albeit the wrong size polo top was returned, I am unable to conclude that he intentionally failed to comply with the order or made no reasonable attempt to comply with the order and I dismiss the contravention.  I will make consequential orders in due course.

3. An application has been made for costs in relation to each of these matters.  On the first matter, costs is dealt with by virtue of the operation of s 70NDC, that is, a contravention is established that there is a reasonable excuse for the contravention.  I am obliged to consider making an order for costs as for the previous breach alleged I was not satisfied that the Respondent had committed a contravention of the primary order.  Applying the same criteria as I previously applied in relation to s 117 save as to the last of those criteria I consider that the variable in this case is whether or not the Applicant has been wholly unsuccessful.  Given her proof of the breach itself and given that the first basis put forward by the Respondent did not constitute a reasonable excuse, I do not find that she has been wholly unsuccessful albeit I find that she has failed to exclude a reasonable excuse.  A remedy will be provided in relation to that matter in that an explanation will be given to the Respondent as to his obligations.  I decline to make a costs order against the Applicant in relation to that matter.

4. As to the second of the contraventions, I have dismissed the contravention and the costs provisions are dealt with a s 70NCB.  I am obliged to again consider the making of a costs award given that the pre-condition set out in sub-section 2(b) applies.  However, I am applying the considerations that I previously outlined in respect of s 117 save for the last of those criteria.  I again conclude that this is not a case of the Applicant has been wholly unsuccessful albeit that the contravention has not been proven.  The underlying fact of the contravention being the failure to return the polo shirt has been proven despite the fact that I found that this did not equate to a failure on the part of the Respondent.  Accordingly, I decline to make an order for costs in relation to that matter.

Application for Contravention – 3 November 2014 (Counts 4, 6, 7, 12, 13, 14, 15 and 16)

1. Using the counts as numbered on the Applicant’s chronology, the matters dealt with are as follows:

   a)Count 16 dated April 2014 which appears at page 7 of the sealed Application for Contravention. 

   b)Count 15 dated 8 July 2014 which appears at page 4 of the Application for Contravention.

   c)Count 14 dated 4 September 2014 which appears at page 7 of the Application for Contravention.

   d)Count 13 dated 4 September 2014 which appears at page 6 of the Application for Contravention.

   e)Count 12 dated 7 September 2014 which appears at page 7 of the Application for Contravention.

   f)Count 7 dated 3 October 2014 which appears at page 7 of the Application for Contravention.

   g)Count 6 dated 3 October 2014 which appears at page 4 of the Application for Contravention.

   h)Count 4 dated 14 October 2014 which appears at page 4 of the Application for Contravention.

2. Counts 16, 14, 12 and 7 deal with issues relating to denigration, while Item 13 deals with the undermining of the Applicant’s teaching of religion.  Items 15, 6 and 4 deal with the return or non-return of items related to D.

3. In support of the Applications for Contravention the Applicant relied on a number of passages from her supporting affidavit along with annexures which are identified in her chronology document.  A number of exhibits were tendered, in particular, relating to whether or not there were overdue books and each of the parties was subjected to cross-examination.  I propose to deal with the denigration and undermining of religion counts together as each of those is heavily reliance upon comments which have been made by the children to the Applicant.  I note that the Applicant was cross-examined to suggest that she was not telling the truth about what she had been told by the children.  That is not a matter that I will need to resolve in order to resolve the contravention applications.  Two matters are of particular relevance specific to these children.  The first relates to the non-controversial fact that C has given diametrically opposed accounts of matters concerning while he is under the care of the Respondent.  Specifically the issue of whether or not he was unfed for a period of up to two days, depending on how it is calculated.  The evidence reveals that he made an assertion to the Applicant that he had not been fed for a period of time by the Respondent, made different assertions to NSW Police and a different assertion to the author of the Child Inclusive Report.  Without being able to resolve precisely where the truth in each of these assertions lies it left me in a position where I am unable to rely on assertions made by C even if they are accepted as having been made to the Applicant, to the standard of the balance of probabilities to establish that the Respondent has, in fact, made the comments as have been reported by C.

4. In relation to D, the Respondent gave evidence that D would say to him if he was non-compliant with her wish to attend a particular leisure event that he was no longer the fun parent.  Given the nature of the assertions that she has reported as having made to the Applicant, I am unable to find, given this characteristic of D, that the matters the subject of the allegations represent matters which the Respondent has said to D.  I also note that a number of matters are not even attributed to the Respondent but relate to assertions made by the children to the Applicant which are not denigrating in their nature.  Similarly, it is the veracity of the children which is to be relied upon to make out the count in relation to the undermining of religion.  As I have found that I am unable to rely upon the assertions made by the children to reach the balance of probabilities standard to establish that the Respondent has engaged in activities which are in contravention of the orders in respect of denigration and the undermining of religion, I dismiss each of those counts.  I will make consequential orders in due course.

5. The balance of the counts relate to whether or not items were returned, namely, count 15 in relation to the school library bag, count 6 relating to D’s school shoes and socks and count 4 relating to D’s school dress, sports shirt and school jumper.  There is some confusion on the evidence as to the status of the library books.  The records that were tendered indicated that there were no overdue books for D, however, the evidence from the Respondent, accepted by the Applicant was that the school had provided a replacement library bag which is indicative of the fact that the first library bag had gone missing.  The Applicant places responsibility for this at the Respondent’s feet.  It is clear that the school made contact with the Respondent to find out what had happened to the library bag and books.  The Respondent had indicated to the school that he was unsure but would look at home.  He has given evidence to say that he was unable to find a library bag.  His explanation in relation to that matter seems entirely reasonable and also consistent with the facts as deposed to by the Applicant and the school.  I am unable to find on the balance of probabilities that he intentionally failed to comply with the order or made no reasonable attempt to comply with the order.  I am unable to come to any conclusion as to what happened in relation to the library bag and books.  Accordingly, I dismiss that contravention.

6. In relation to count 6, the Respondent initially admitted but asserted there was a reasonable excuse.  This relates to an allegation that the Respondent had withheld D’s school shoes and socks without reasonable excuse.  Despite the Respondent’s admission in relation to this matter, his testimony bore no relationship to the allegation itself in that he asserted that the incident as he understood it had taken place during school holidays and had involved some thongs.  If this was the case then there is no applicable order to require them to be handed over.  He further gave evidence that what had prevented the handing back of the footwear was that he had been running late and that the footwear was in the car outside his house at a point when the Applicant arrived to collect the children and that he felt that he was unable to go outside as that would see him in breach of the orders.  The Applicant’s evidence in relation to the school shoes was supported by an annexure to her affidavit in the sense that there was a recent report made by the Applicant to the school principal.  While the Respondent initially made an admission through his solicitor, his evidence was such that when compared to the Applicant’s evidence in relation to the same matter left me in a position that I am unable to determine what footwear was involved or when in relation to school term the footwear was not returned or precisely how.  Left in this state of confusion I am unable to determine on the balance of probabilities that the Respondent has contravened that order.

1. In relation to Item 4, the Respondent failed to return school wear to the Applicant.  This was not the subject of an admission, however, Annexure “M” of the Applicant’s affidavit material contained an email from the Respondent’s solicitor that implicitly made an admission that the items had not been returned at the commencement of school.  Annexure “M” is dated Thursday, 16 October 2014 and addressed from Mr Ulbrick to Ms Spiteri.  He reports as of Thursday 16 October 2014 that his client had dropped off D’s sneakers, sports shoes and shirt that morning at the school office.  I note that in the terms of the orders, that is some days after the handover of D and the obligation to return to school uniform would have obliged the Respondent to have returned them.

2. The Respondent was unable to identify the precise circumstances of the non-return of the school uniform noting that there are many complaints of non-compliance.  I am satisfied that there was a contravention of the order, that is, that the uniform was not returned.  The evidence is not such as to enable me to be satisfied that there was a reasonable excuse for the non-return of the uniform.  I find that contravention proven.

3. Having heard the parties in relation to the matter of costs, I note my comments in respect to s 117(2A) previously made.  I note that I am obliged given the findings I have made to consider making a costs order.  I make further findings in addition to those made previously under s 117(2A)(a) I find that each of the parties is of minimal means.  The Applicant is in receipt of social security.  The evidence suggests that she has no assets of any value.  The Respondent, likewise, is in receipt of very little income.  I do not know his asset position.  I have some evidence as to his income, although that evidence is incomplete and I am unable to form a picture of what his income was before he ceased working.  I do not know how long he is unlikely to work for.  I have before me evidence that he is currently in arrears of child support in the sum of approximately $16,000.00.  I note that the Applicant has been wholly unsuccessful in seven of the eight counts in relation to the Application brought 3 November 2014.  Given the evidence currently before me, I find that notwithstanding the fact that the Applicant has been almost wholly unsuccessful in relation to the proceedings filed 3 November 2014, her financial circumstances are such that I decline to make a costs order in favour of the Respondent in relation to these matters.  In particular, I note the outstanding amount of child support, the lack of assets and the lack of any significant income.  I reserve on the question of consequential orders in relation to the found contravention.

4. The matter is adjourned to 12 August 2016 at 10.00am for hearing of the contravention applications.

5. I direct that the Applicant is to provide any updated chronology outlining the material that she relies upon in respect of each of the remaining counts by close of business Thursday, 4 August 2016.

6. I direct that the Respondent is to file a list of any objections he takes to that identified material by close of business Tuesday, 9 August 2016.

7. I direct that proceedings PAC5808/2008 relating to further contravention allegations filed by the Applicant on 8 June 2016 are to be listed to be determined on, if possible, 12 August 2016.

8. I direct that the Applicant’s chronology document incorporate any references necessary in relation to that set of contravention allegations.

9. I direct that the list of objections likewise incorporate that set.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered 28 June 2016.

Associate: 

Date:  13 July 2016