Wilkins and Currie

[2017] FamCA 323

FAMILY COURT OF AUSTRALIA

WILKINS & CURRIE [2017] FamCA 323

FAMILY LAW – CHILDREN – application for contempt – where the father has made an application that the mother has acted in contempt of court orders – where it is found that the mother has not acted in contempt – where there has been no deliberate defiance of a court order

Family Law Act 1975 (Cth) s 112AP

APPLICANT: Mr Wilkins

RESPONDENT: Ms Currie

FILE NUMBER: MLC 44 of 2013

DATE DELIVERED: 7 March 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 7 March 2017

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Hoult

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

1. That the Application - Contempt filed 9 January 2017 be struck out;

2. That the Reasons for Judgment of this day be transcribed.

3. That the question of costs of this day be reserved. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkins & Currie 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 MELBOURNE

FILE NUMBER: MLC 44  of 2013

Mr Wilkins

Applicant

And

Ms Currie

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter of Wilkins & Currie comes before me today upon the Application - Contempt filed on behalf of the father on 9 January 2017.  That application is supported by his Affidavit filed the same day.  The application provides at Part C details of the alleged contempt.  The allegation is as follows: 

   The respondent without reasonable excuse withheld [B] from the father from 3.30 pm on Friday, 30 December 2016, until 3.30 pm on Wednesday, 4 January 2017. 

2. In order to understand the application it is necessary to provide some background in respect of this matter. 

3. The applicant is Mr Wilkins.  He was born in 1968 and is aged 48 years. 

4. The respondent is Ms Currie.  She was born on in 1970 and is aged 46 years. 

5. The parties married in 1997, and final separation occurred in 2009. 

6. There are four children of the marriage.  Two sets of twins.  C and D, who were born in 2002 and will turn 15 later this month, and B and E, who were born in 2004 and will turn 13 next week. 

7. Final parenting orders were made in the Federal Circuit Court on 29 April 2014. 

8. Since that time there have been a series of applications made in the Federal Circuit Court with respect to the implementation of those orders.  I was informed by the father at the commencement of this hearing that he has filed approximately 15 contravention applications with respect to the orders.  None of those contraventions to date have been proven.  Further, I was informed there were no less than seven court appearances in the period 2015- 2016.   The proceedings were transferred to this Court in the latter part of 2016. 

9. There has been engagement by this family with various psychologists and other professionals.  In particular the parties have been engaging in therapeutic counselling with Ms F.  She has prepared two reports, to which I have regard.  A report dated 18 October 2016 and a letter directed to the Independent Children's Lawyer dated 5 February 2017.  Further, the parties have attended for and received a child-inclusive conference memorandum prepared by Ms G, a family consultant of this Court.  That memorandum is dated 20 June 2016. 

10. The father in his lengthy Affidavit filed 9 January 2017 sets out much of the history which I have just described.  He also sets out the circumstances with respect to the alleged contempt, which is the allegation that the child B was not presented for time with him in the December-January period.  I should note that the other children of the marriage did attend for time with the father over that period, and there is no dispute that the father is currently spending time with the children in accordance with the extant parenting orders. 

11. In his Affidavit, particularly from paragraph 63 onwards, he details the circumstances giving rise to the Application-Contempt.  He there deposes that he was informed by the mother on 27 December 2016 that she would not be making B available for time over the December-January period.  He annexes to his Affidavit at annexure DW-11 the email received from the mother with respect to that time.  In order to understand the context of that email I should note that the child B has anorexia nervosa and was diagnosed with that condition in the latter part of 2015.  The email from the mother, annexure 11, states as follows. 

    [Mr Wilkins], [B] has had a decline in her weight over the past few months, most notably in the past six weeks.  She has recently commenced weekly health checks at the GP.  Given her current struggles in returning to a maintenance weight range, it is the doctor’s recommendation that she stay in a predictable environment while we monitor her on the food plan.  For this reason she will not be coming with the other children on Friday for the five nights with you.  [Ms Currie]. 

12. The father responded to that email.  His response is set out at paragraph 65 of his Affidavit.  It is a lengthy response, but I confirm for the transcript that I have read that response.  In essence, the father challenged the mother’s approach and referred to the indications and statements made by Judge Wilson with respect to deliberately disobeying court orders, it being the father’s view clearly from the context of that email that that was the approach of the mother taken with respect to these matters.  In the final paragraph of his email to the mother he stated as follows: 

    The choice is yours, but you have no grounds for your unacceptable actions.  I will immediately file for contempt on Friday evening if she is not made available.  [Mr Wilkins] (their dad). 

13. The mother in response to that email forwarded a further email on 29 December 2016.  That email is annexure DW-12 to the father’s Affidavit.  That email is a copy of a letter from B’s general medical practitioner.  It states as follows. 

    Madam, re Miss [B Wilkins].  I certify that Miss [Wilkins] attends myself as her regular GP. 

14. The beginning of the email annexure does not provide the commencement of the next line, presumably due to the photocopier not copying the whole of the document.  But the second paragraph continues:

    … that she is currently acutely medically unwell and is advised to continue her care/treatment at home on medical grounds. 

15. Next paragraph:

    … she has been diagnosed with anorexia nervosa and presently requires regular medical … to monitor her weight and nutrition with myself. 

16. Next line: 

    “… under specialist care at [H] Hospital, adolescent unit ..”

17. Next line: 

    “… situation is under regular ongoing review.” 

18. The father sent a response to the mother regarding the letter from the doctor.  That response was forwarded on 29 December 2016.  Again the father challenged the mother’s reasoning as to why it is that she formed the view that B should remain in her care rather than being cared for by the father.  In the concluding paragraphs of that letter the father stated:

    The doctor’s letter is generic, and I find it extraordinary that [B] is not seeing a specialist.  You also know that your thoughts/decision including your GP’s will not be enough to support your behaviour before a judge. 

19. In the final paragraph of his Affidavit, paragraph 73, the father states:

    I seek that the court makes an order that punishes [Ms Currie] by way of imprisonment.  I verily believe that the contravention of the 24 August 2016 orders involved serious disregard of [Ms Currie’s] obligations under the orders. 

20. On any view, there is a dispute between the parties as to the appropriateness or otherwise of the mother deciding not to provide B for time during the December-January period. However, I am equally satisfied that those matters as I have set out do not support an Application-Contempt. Section 112AP of the Family Law Act 1975 (Cth) sets out what a contempt is within the Family Law Act 1975 (Cth).

21. Section 112AP(1) provides as follows.

    Subject to subsection (1A), this section applies to a contempt of a court that:  

    (a) does not constitute a contravention of an order under this Act; or

    (b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court. 

    (1A) This section does not apply to a contempt that constitutes a contravention of a maintenance order if the order has been complied with before the matter of the contravention comes before the court.

22. Hence in circumstances where it is alleged that there is a breach of a court order as in this case, it is necessary that such breach involve a flagrant challenge to the authority of the Court.  In circumstances where the mother offers an excuse, and I make no findings in relation as to whether or not it was a reasonable excuse, but she proffers an excuse and provides a medical certificate, and further where it is conceded that the three other children, were in fact provided for time with their father in compliance with the orders of the court, I am satisfied that such behaviour could not found an application in contempt. 

23. An Application-Contempt is distinct from a contravention application.  In order to establish a contempt, I need be satisfied that there has been a deliberate defiance of a court order, as distinct from a breach of a court order.  There is no evidence before me that would enable me to be satisfied of such defiance with respect to the circumstances as alleged by the father between December, January 2017. 

24. This view is bolstered when one has regard to the letter from Ms F dated 5 February 2017.  That letter provides a summary of engagement by Ms F with the family in the January 2017 period.  Ms F notes in that letter concerns raised by the children with respect to the father’s management of B’s anorexia.  In particular I note at page 1, paragraph 4, of that letter where Ms F states as follows: 

    [C] presented as emotionally conflicted with wanting her father to be nice to her whilst trying to “protect [B]”, as well as trying to be assertive, which in her view results in her father being critical of her.  Generally, the children have minimal trust in their father about [B’s] anorexia. 

25. In the penultimate paragraph of the letter Ms F notes that at the last session B had joined the group.  She had not attended for a few days due to her weight loss and the mother’s choice to withhold her from spending time with arrangements until she regained the weight she had lost.  Again I make no findings as to whether the mother’s decision to withhold B was appropriate.  I simply note the circumstances and the excuse she provides to the father as to her reasons for not providing her time on that occasion. 

26. Ultimately if the father pursues the alleged breach it will be a matter for another judge to determine whether or not the excuse proffered by the mother was reasonable. However, having regard to the provisions of section 112AP, together with the material to which I have referred, I am satisfied that the evidence of the father does not found an Application-Contempt, and accordingly I make the following orders.

Orders

(1)That the Application - Contempt filed 9 January 2017 be struck out;

(2)That the Reasons for Judgment of this day be transcribed.

(3)That the question of costs of this day be reserved. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 7 March 2017.

Associate: 

Date:  7 March 2017