Spiteri and Walker (No 3)

[2016] FamCA 735

FAMILY COURT OF AUSTRALIA

SPITERI & WALKER (NO 3) [2016] FamCA 735

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

Family Law Act 1975 (Cth) ss 117, 117(2)(e), 117(2A)

APPLICANT: Ms Spiteri

RESPONDENT: Mr Walker

FILE NUMBER: PAC 5808 of 2008

DATE DELIVERED: 12 August 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Gill J

HEARING DATE: 12 August 2016

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Ms Spiteri

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

Orders

Application for Contravention – filed 11 August 2015

1. Counts 1, 2, 3, 4 and 5 of the Application for Contravention filed 11 August 2015 are dismissed.

2. The mother pay the father’s costs on a party/party basis and that the amount be agreed within 14 days and if not agreed at that point be assessed and that the mother pay the costs as assessed within 14 days after the completion of the assessment process.

Application for Contravention – filed 1 June 2015

1. Counts 1, 3, 4, 5, 6, 7, 8, 9 and 10 of the Application for Contravention filed 1 June 2015 are dismissed.

2. The mother pay the father’s costs on a party/party basis and that the amount be agreed within 14 days and if not agreed at that point be assessed and that the mother pay the costs as assessed within 14 days after the completion of the assessment process.

Application for Contravention – 3 November 2014

Count 4

1. The father is to attend a post-separation parenting program.

2. The father is to attend a post-separation parenting program within 14 days in order to arrange and commence as soon as practicable with the intake process for such program.

3. The father is to complete such post-separation parenting program.

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5808 of 2008

Ms Spiteri

Applicant

And

Mr Walker

Respondent

REASONS FOR JUDGMENT

Application for Contravention – 11 August 2015

Count 1 – as set out in M1 of the Mother’s Chronology

1. Count 1 is dismissed on the basis that the evidence is incapable of establishing the count as it fails to establish that the items were a component of the school uniform.

Count 2

1. Count 2 is dismissed on the basis that the evidence is incapable of proving the contravention as it fails to address whether the item was a component of the school uniform as defined.

Count 3

1. Count 3 is dismissed on the basis that the evidence is incapable of establishing that the items were a component of the school uniform.

Count 4

1. Count 4 is dismissed as, following successful objection to evidence there was no evidence by which this count could be sustained.

Count 5

1. Count 5 is dismissed as the count involves a homework book which does not fit within the definition of school uniforms set out in paragraphs 12 and 13 of the orders.

Costs application in respect of Contravention Application filed 11 August 2015

1. A costs application has been made on the part of the father and resisted on the part of the mother.  There is limited material before the Court as to the circumstances of the parties, although financial circumstances as disclosed to the Court indicate that the father owes a significant sum in the amount of approximately $18,000.00 by way of child support.  Further evidence in relation to the financial means of the parties is not before the Court.  In considering whether to make a costs order I am obliged to apply s 117 of the Act.  In considering what if any order is to be made I am required to take into account the provisions of s 117(2A).  Of the matters that are known to me, the principal matter that arises for consideration under that provision is at paragraph (e) that is whether any party to the proceedings has been wholly unsuccessful in the proceedings.

2. The mother filed contravention proceedings in relation to five matters.  I ruled that the evidence led in relation to each of those did not at its highest rise to a point as to be able to establish a contravention of the orders and accordingly dismissed each of the applications for contravention.  The mother’s application may be characterised as wholly unsuccessful.  This justifies the making of a cost order and I order that the mother pay the father’s costs on a party/party basis on the basis of the application of 11 August 2015.  I direct that the costs be as agreed and failing agreement within a period of 14 days then be submitted for assessment following assessment and on completion of assessment that the outstanding amount be paid within 14 days.

Application for Contravention – 1 June 2015

Count 1

1. I dismiss count 1 that the father denigrated the mother on 9 May 2015 on the basis that the material is not sufficient to show that an act of denigration took place on the part of the father.

Count 3

1. The allegation is that the father contravened the orders by denigrating the mother on 24 April 2015.  I dismiss the count on the basis that there is no evidence to support the count.

Count 4

1. The count is dismissed on the basis that the evidence is not capable of establishing that the father was in any sense responsible for the sending of the email to his son’s email account.

Count 5

1. I dismiss the count.  Order 13 does not touch upon the circumstances the subject of the count as the item was, on the mother’s evidence, not an item that was provided by her at the commencement of time.

Count 6

1. I dismiss count 6 on the basis that there is no evidence to establish that the raincoat is a portion of the school kit referred to in orders 12 and 13.

Count 9

1. The mother concedes that the father did not leave the property although he had exited the house.  The orders are expressed in terms of premises and I find that on the mother’s concession the father had not left the premises and was, hence, not in breach of the order.  I dismiss the contravention.

Count 10

1. The mother concedes that the school photographs cannot meet the description of school uniform or school kit as set out in paragraphs 12 and 13 of the orders.  I dismiss the contravention.

Counts 7 and 8

1. Having heard from the father and having examined the evidence presented by the mother, I am not satisfied that the father has either denigrated or permitted Ms E to denigrate the mother in respect of the pig keyring between 14 and 17 February 2015.

2. I dismiss the Application for Contravention.

Costs application in respect of Contravention Application filed 1 June 2015

1. An application for costs has been made in relation to the Application for Contravention filed by the mother on 1 June 2015.  I have previously canvassed the limited evidence in respect of the financial circumstances for each of the parties in evidence before me in relation to the contraventions of 11 August 2015.  The parties relied on the same evidence and material with the mother supplementing her submissions.  Again accepting that the usual course is for each party to a proceedings under this Act to bear his or her own costs, I find pursuant to s 117(2)(e) that there are particular circumstances in relation to this case being circumstances which justify the making of a costs order against the mother.  That costs order is justified by the fact that the mother has been wholly unsuccessful in relation to the contravention proceedings.  I order that the mother pay the father’s costs on a party/party basis and that the amount be agreed within 14 days and if not agreed at that point be assessed and that the mother pay the costs as assessed within 14 days after the completion of the assessment process.

Application for Contravention – 3 November 2014

Count 4

1. Having previously found the contravention proven, on submissions from the Applicant mother and on submissions also in support from the solicitor for the father, I order that the father attend a post separation parenting program.

2. I order that the father attend for a post-separation parenting program within 14 days in order to arrange and commence as soon as practicable with the intake process for such program.

3. I order that the father complete such post-separation parenting program.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered 12 August 2016.

Associate:

Date:  26 August 2016