Respondent Father & new wife in contempt of court for deliberate breaches of Court Orders

Fairs & Anor & Pettit & Anor (No.3) [2018] FCCA 1061 (3 May 2018)

Last Updated: 8 May 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) With respect to charge 1, being that between 20 October 2016 and 21 April 2017, the Respondent Mr Pettit (“Mr Pettit”) contrary to the terms of Order 4 did communicate with a child subject of this proceeding, namely X born (omitted) 2001 (“[X]”) by means of a software program enabling internet communication, “(omitted)”, that charge is found not proved.

(2) With respect to charge 2, being that between 20 October 2016 and 21 April 2017, the Respondent Ms Pettit (“Ms Pettit”) contrary to the terms of Order 4 did communicate with [X] by means of a software program enabling internet communication, “(omitted)”, that charge is found not proved.

(3) With respect to charge 3, being that between 20 October 2016 and 24 April 2017, Ms Pettit contrary to the terms of Order 4 did communicate with [X] by means of a telephone call or telephone calls, that charge is found proven.

(4) With respect to charge 4, being that between 20 October 2016 and 21 April 2017, Ms Pettit and Mr Pettit; alternatively, Ms Pettit; alternatively, Mr Pettit did, contrary to the terms of Order 4 conspire to procure [X] to breach the order by running away from the Applicants’ residence, and seeking harbour at the home of Ms Pettit’s mother, one Ms H, that charge is found not proved.

(5) With respect to charge 5, being that prior to, in 2017, and on or about 21 April 2017 Ms Pettit did conspire with, inter alia, Ms S, Ms K, Ms H, and Ms M to secrete [X] interstate out of Victoria for the purpose of frustrating the execution of the recovery order made that day by this Honourable Court, that charge is found proven.

(6) With respect to charge 6, being that on or about 21 April 2017 Ms Pettit and Mr Pettit; alternatively, Ms Pettit; alternatively, Mr Pettit did, contrary to the terms of Order 4, and after the making of the said recovery order by this Honourable Court as aforesaid, and with full knowledge of the making thereof, have face-to-face contact with [X], that charge is found proven as to both Ms Pettit and Mr Pettit.

(7) With respect to charge 7, being that on or about 21 and/or 22 and/or 23 April 2017, contrary to the terms of the said recovery order:

(a) Ms Pettit and/or Mr Pettit procured the said Mr D to drive [X] to a bus station where he there and then boarded a bus for Canberra;

(b) [X] was, as Ms Pettit and/or Mr Pettit well knew and had arranged, met by one Ms K in Canberra;

(c) from Canberra, [X] went by plane to Queensland, where he was met, as Ms Pettit and/or Mr Pettit well knew and had arranged, by Ms S, and given accommodation by her;

that charge is found not proved.

(8) With respect to charge 8, being that the actions taken, and the events set in train, by Ms Pettit and/or Mr Pettit referred to in paragraphs 1-7 inclusive above were:

(a) taken by them in the full knowledge of the existence of orders of this Honourable Court prohibiting such actions, alternatively in the full knowledge that such actions were at the least contrary to the intention of such orders;

(b) calculated by them or either of them to frustrate or defeat the operation of such orders;

(c) entered into by them or either of them deliberately, with a view that the natural consequences of their actions would follow;

(d) in flagrant disregard of the authority of this Honourable Court;

that charge is found proven as to both Ms Pettit and Mr Pettit.

IT IS NOTED that publication of this judgment under the pseudonym Fairs& Anor & Pettit & Anor (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

MLC 6856 of 2014

First Applicant

Second Applicant

And

First Respondent

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 25 May 2017 the Applicants Ms Fairs and Mr Fairs filed a Contempt Application and Contravention Application in which they allege deliberate breaches of final parenting orders made by this Court on 20 October 2016 by the Respondents Mr Pettit and Ms Pettit.
2. In opening submissions, Counsel for the Applicants advised the Court that the alleged contraventions as set out in the Contravention Application, which are pleaded in identical terms to the alleged contempts of Court are “in the alternative” in the event findings are made that the Respondents’ behaviour did not meet the high standard of proof that is required for a finding of contempt.

Background

3. On 20 October 2016, I pronounced orders and handed down a 110 page judgment relating to the parenting arrangements for the children of Mr Pettit and Ms Fairs, being [X] born (omitted) 2001 (“[X]”) and [Y] born (omitted) 2003 (“[Y]”).
4. The background to the matter is set out in paragraphs [1]-[53] of the judgment and, whilst lengthy, are included in this judgment to give context to the current matter:
   1. This is an extremely difficult and distressing parenting matter with a long history before this Court.2. It relates to the living arrangements for the children [X] born (omitted) 2001 (“[X]”) and [Y] born (omitted) 2003 (“[Y]”).

3. [X] has been given a diagnosis of gender dysphoria and identifies as a male. He was previously (omitted). [X] has also been diagnosed with Autism Spectrum Disorder.

4. The Father was born on (omitted) 1977 and is aged 38 years. He is unemployed. 5. The Step-Mother, Ms Pettit, was born on (omitted) 1986 and is aged 29 years. She is a student.

6. The Mother was born on (omitted) 1979 and is aged 37 years. She is a (occupation omitted) working flexible hours around the needs of her family.

7. The Step-Father, Mr Fairs, was born on (omitted) 1975 and is aged 41 years. He is employed on a full-time basis as a (occupation omitted) in a (employer omitted).

8. The Father and Mother commenced cohabitation in 2000 and married on (omitted) 2002. They separated in April 2003. At separation [X] was just two years of age and the Mother was pregnant with [Y].

9. The Father and Step-Mother forged a relationship shortly after the Father and Mother separated. The Father and Step-Mother married on (omitted) 2010 and have three children: [B] born (omitted) 2004 (“[B]”), [C] born (omitted) 2005 (“[C]”) and [D] born (omitted) 2008 (“[D]”).

10. The Mother commenced a relationship with the Step-Father in 2004 and they married on (omitted) 2009. They have a son, [A] born (omitted) 2011 (“[A]”), who is aged 5 years.

11. When the Father and Mother separated, [X] and [Y] lived with the Mother and spent regular time with the Father.

12. In July 2014 the Father over-held [X] and [Y]. The Father commenced proceedings in the Federal Circuit Court of Australia on 5 August 2014.

13. On 19 January 2015 interim orders were made for [Y] to return to live with the Mother and spend alternate weekends with the Father and for [X] to continue living with the Father and spend supervised time with the Mother.

14. Final parenting orders were made by consent on 6 October 2015. Those orders were made during the running of the final hearing and after only the Father had given his evidence. The Mother, Step-Mother, Step-Father and the experts’ evidence was not heard.

15. All parties agreed that, these current proceedings are in reality continuation of the proceedings that concluded in October 2015.

16. The final parenting orders made on 6 October 2015 provide in part as follows:

• (1) The Mother have sole parental responsibility for [X] and [Y];
• (2) [X] and [Y] live with the Mother;
• (3) [X] and [Y] spend time and communicate with the Father as follows:
  • • no face to face time whatsoever with [X] and [Y] until 6 April 2016;
    • thereafter, every second weekend from after school Friday until 6:00pm Sunday;
    • from Term 1 2016 for half school holidays;
    • time at Christmas and on Father’s Day;
    • after 6 April 2016 by telephone each Thursday;

(4) The parties be restrained by their servants and agents from denigrating each other or members of their household and from discussing the proceedings in the presence or hearing of [X] and [Y];

(5) The Father be restrained from communicating by email, any form of electronic or social media, telephone, text message, befriending [X] or [Y] on social media or providing them with a device that would enable [X] or [Y] to communicate with the Father.

17. A notation to the 6 October 2015 orders states the orders were made on the undertaking of Ms Pettit to be bound by the terms of Orders (4) and (5) and of Mr Fairs to be bound by Order (4).

18. On 15 December 2015 the Step-Mother, [B], [C], [D], the Step-Mother’s sister and her two children and the Step-Mother’s parents all attended [Y]’s Primary School graduation.

19. The Step-Mother did not ask the Mother if she and her family could attend the graduation and she did not advise the Mother of her intention to attend this ceremony with all her family.

20. When the Step-Father realised the Step-Mother and her family had attended the graduation, there was an exchange between he and the Step-Mother. The exact nature of this exchange is disputed.

21. On 21 December 2015, following [Y]’s graduation ceremony the Step-Mother made application for and obtained an ex-parte intervention order against the Step-Father and the maternal grandmother for the protection of [B].

22. In the applications and summons for the intervention order against the Step-Father, the Step-Mother alleges the Step-Father “screamed in my face in front of all the children” and approached [B] and told her the police would be attending in half an hour to take her mother away. The Step-Mother alleges the maternal grandmother screamed at and elbowed [B] and yelled at and pushed her mother.

23. [X] and [Y] recommenced spending time with the Father and his family on 6 April 2016. When the Step-Mother collected [X] and [Y] on that day she recorded [X] and [Y]’s complaints about the Mother and Step-Father’s care of them without their knowledge or consent.

24. During the weekend of 6 April 2016 [X] had two nose bleeds. After the second nose bleed the Step-Mother took [X] to her family’s local general practitioner Dr S. On 9 April 2016 the Father, [X] and [Y] returned to Dr S. [X] made allegations of inappropriate care by the Mother and the Step-Father. Given [X]’s complaints, Dr S who compelled to make a mandatory report to the Department of Health and Human Services (“DHHS”).

25. On 10 April 2016 the Father send an email to the Mother which in part states:

• “On 8 April 2016 [X] suffered from two blood noses.  … Ms Pettit took [X] to (omitted) Medical and [X] was seen by Dr S. …On 9 April I attended (omitted) Medical and Dr S spoke with [X] and [Y]. [X]’s discussions regarding the past 6 months included:
  • (a) that he has ongoing blood noses
  • (b) that his Lovan has been increased from 10mg/day to 40mg/day in the last 6 months
  • (c) that he was routinely experiencing nausea, headaches and loss of appetite
  • (d) that his grades have dropped
  • (e) that he had been taken to the (omitted) Hospital due to threats of suicide, self-harm and attempts of attacking others

I have serious concerns regarding the welfare of [X] and his ability to thrive in his present environment. … Both [Y] and [X] have requested to come and live with me. I would like them to commence living with me immediately. I believe that this is in their best interests.”

26. [X] and [Y] spent time with the Father and Step-Mother on the weekend of 22 April 2016. The Step-Mother again recorded [X] and [Y]’s conversations over the weekend. She also recorded a call made by [X] to Kids Helpline in which [X] reported abuse by his Mother and Step-Father whilst in their care. The recordings were again done without the knowledge or consent of [X] and [Y].

27. It is the Father’s evidence that when [X] and [Y] attended his home on 6-10 April 2016 they asked why the Step-Father and maternal grandmother were no longer involved in driving them to spend time with he and their half siblings. It is the Father’s evidence [X] and [Y] were told by him it was because of the interim intervention orders against the Step-Father and grandmother. It is the Father’s evidence that [X] and [Y] then asked “to be added to the intervention order”.

28. On 13 May 2016 the Father made application to the (omitted) Magistrates’ Court for an intervention order against the Step-Father for the protection of [X] and [Y].

29. The Step-Mother’s intervention order applications came before the (omitted) Magistrates’ Court on 26 April 2016. The Step-Mother’s Applications were listed for a contested hearing on 1 August 2016. Most concernedly, the learned Magistrate ordered that on 1 August 2016 [X] and [Y] should be in attendance and they be represented by Victoria Legal Aid in the expectation they give evidence at the final hearing.

30. On 2 May 2016 the Mother forwarded the following email to the Father:

“Dear Mr Pettit, I write to inform you that, after agonising over your and Ms Pettit’s renewed attempts to undermine the orders made last year about the parenting of [X] and [Y], I have decided that you will no longer be seeing the children. You well know the abjectly vile machinations in which you and Ms Pettit have engaged, but for the purposes of clarity, I set out the major matters which have informed my decision:

• Ms Pettit’s decision to provoke a confrontation at [Y]’s graduation ceremony, in breach of the orders. This was an event at which she was not invited, and which the orders prevent her from attending. The attempt by her, by going to the Police in an attempt to pre-empt criticism by having them “interpret” the orders in her favour, indicates the depth of premeditation that you and Ms Pettit have put into subverting the orders.
• Ms Pettit’s abuse of the process of the Magistrates’ Court in seeking Intervention Orders against Mr Fairs, not only on her own behalf, but also on behalf of your children with her, and further (as she has threatened at Court recently), to make an attempt to obtain an Intervention Order on behalf of [X] and [Y]. There is no merit whatsoever to Ms Pettit’s claims, as you well know, and her embroiling children in giving evidence in order to bolster her bankrupt and untrue claims is an outrage for which she will answer in due course, in the event she continues with her vexatious proceeding in the Magistrates’ Court. Be assured that if there is any attempt whatsoever to further the threats in respect of my own children, I will take the necessary steps to obtain an anti-suit injunction against her, and you, without further notice.
• Ms Pettit’s attempts to embroil both [X] and [Y] in the Intervention Order proceedings by discussing them with both children.
• Your, and Ms Pettit’s breaches of the orders in taking [X] to doctors on the very first visit, on the pretext of a “blood nose”, but really to allow you and Ms Pettit to manipulate him into renewing the false assertions of abuse that were dealt with last year, constitute emotional and psychological abuse that I will no longer tolerate.
• Ms Pettit’s clandestine communications with [X], also along the lines of “abuse”, in direct breach of the orders made last year.

• Mr Pettit, I am no longer going to tolerate any further attack on my parenting, and I am prepared to use the proper authority given to me by the orders to ensure that the children are protected from your and Ms Pettit’s psychological abuse and manipulation of them. Accordingly, I repeat what I said above: you will no longer see the children. I invite you to take whatever Court proceedings you may be advised in the face of this information, but be aware that I will fiercely contest them, and I will produce this letter as the basis, at first instance, of my decision. I have available significant evidence as to the improvement in [X]’s psychological condition whilst in my care, and in the absence of your and Ms Pettit’s influence, and will also use that in the event you choose to commence proceedings. I would only be prepared to reconsider my decision if the following conditions were met by you and Ms Pettit: 1. You and Ms Pettit openly acknowledge that you have sought to:
  •  a. Undermine the orders;
  • b. Undermine the arrangements concerning my sole parental responsibility;
  • c. Undermine the children living with me;

2. You and Ms Pettit undertake to cease and desist any further such undermining behaviour;

3. Ms Pettit acknowledges there is no merit to her Intervention Order proceedings, and forthwith withdraws them. I take this opportunity to warn you that any attempt by you and/or Ms Pettit to take the children out of my care before there is a valid order of a court exercising Family Law jurisdiction will result in me seeking an urgent Recovery Order.  Do not attend at either of their schools, and do not allow Ms Pettit to do so. Do not communicate with either children, or allow Ms Pettit to do so. Do not come to our house expecting the children to be delivered to you; it will not happen. Yours faithfully, MS FAIRS”

31. [X] and [Y] have spent no time and have not communicated with the Father or the Step-Mother since 2 May 2016.

32. On 23 May 2016 the Father filed an Initiating Application in this Court seeking orders for equal shared parental responsibility, that [X] and [Y] live with him and spend alternate weekends and half holidays and shared special occasions with the Mother. This application was listed on 16 June 2016. The Father sought to have his application listed more urgently than this date but the Registrar refused to do so.

33. On 30 May 2016 the Father attended the Registry of the Court and sought to file an Application to have the decision of the Registrar not to urgently list his Initiating Application reviewed. This application was listed before Judge Jones on that day. Her Honour made an Order that Order (3) of the Orders made 6 October 2015 continue to apply and for the Father to serve all material on the Mother by 3 June 2016 and otherwise directed the matter remain listed on 16 June 2016.

34. On 3 June 2016 the Father filed a Contravention Application and Contempt Application.

35. On 14 June 2016 the Mother filed a Response seeking all of the Father’s applications be dismissed, that the Court make a vexatious proceedings order against the Father pursuant to section 102QB of the Family Law Act 1975 (Cth) (‘the Act’) and that on an interim basis the Orders for time and communication between [X], [Y] and the Father be suspended.

36. The current applications first came before me on 16 June 2016. On that occasion orders were made as follows:

• • • the matter listed for urgent final hearing on 20 July 2016;
    • the Step-Mother be joined as Second Applicant and the
    • Step-Father be joined as the Second Respondent;
    • appointment of an Independent Children’s Lawyer;
    • the Independent Children’s Lawyer be requested to:
      (i) speak to [X] and [Y];

(ii) have [X] and [Y]’s treaters provide reports to the Court as to [X] and [Y]’s current health and to be available to give viva voce evidence at the final hearing;

• the parties be restrained from filing further affidavits without leave of the Court.

37. An interim order was also made suspending all orders for [X] and [Y] to spend time and communicate with the Father.

38. After discussions with the Father and Step-Mother the following notations were included in the 16 June 2016 Orders:

A. The First-named Applicant has agreed to forthwith discontinue his Application for an Intervention Order against the Second-named Respondent which is currently listed for mention in the Magistrates’ Court at (omitted) on 12 July 2016.

B. The Second-named Applicant has agreed to forthwith discontinue her Application for an Intervention Order against the Second-named Respondent and the maternal grandmother which is currently listed for a defended hearing in the Magistrates’ Court at (omitted) on 1 August 2016.

39. The hearing of the evidence and the submissions of the Independent Children’s Lawyer and the parties concluded after four days on 23 July 2016. The judgment was reserved.

40. On 15 August 2016 the Mother filed an Application in a Case seeking that the matter be re-opened and that further evidence be adduced in relation to an incident with [X] in 8 August 2016.

41. The Respondents did not oppose this application and further evidence was heard on 22 and 24 August 2016.

42. On 8 August 2016 when the Mother went to collect [X] and [Y] from school at 3:10pm, [X] was not at school.

43. When [X] could not be located, the Mother, Step-Father and the maternal uncle frantically searched for [X] in the area around the school.

44. The Mother also called the Father and left a message asking him to urgently contact her. The Father at no time returned the Mother’s call.

45. The Mother also called the Step-Mother. She left no message for the Step Mother.

46. [X] arrived at the home of Ms J at approximately 3:20pm. Ms J is an acquaintance of the Step-Mother’s. Her step-son (omitted) had played football with [Y]. [X] only met Ms J on one occasion and that was in 2015. [X] had never been inside Ms J’s home, although was once in a car that collected a team member from outside Ms J’s home.

47. Ms J spoke to the Step-Mother at 4:17pm and advised her [X] was with her. She told the Step-Mother that [X] had told her he ran away from school because he was scared of the Mother and Step-Father who had been abusive of him the night before. [X] told Ms J he would “hurt himself” if made to return to the Mother and Step-Father.

48. As a result of [X]’s level of distress and his threats of self-harm, Ms J contacted the police and DHHS.

49. The police notified the Father that [X] was with Ms J. The Police also notified the Mother that [X] was safe but not where he was.

50. The police attended Ms J’s home and spoke to [X]. As [X] continued to threaten self-harm, an ambulance was called and [X] was taken to (omitted) Hospital where he was seen by the mental health clinician on call. The parents were advised by DHHS he was being taken to hospital.

51. Upon being advised that [X] had been taken to hospital, the Mother and Step-Father went to (omitted) Hospital. After approximately three hours and further assessment by DHHS and the mental health clinician, the Mother and Step-Father were permitted to see [X] and allowed to return with him to their home.

52. (omitted) Secondary College is 8.2 kilometres from Ms J’s home. [X] told Ms J that he had left school at around 2:00pm and had been running and hiding for hours before getting to her place. [X] told the Mother he had been in text contact with the Step-Mother on the morning he had run away and that she had given him her mother’s number and that the Step Mother’s mother had fetched him from the shops near the school.

53. Ms J did not see how [X] arrived at her home.”

1. 1. 5. The orders made on 20 October 2016 are as follows:
         • “

         (1) All previous parenting Orders be discharged.

   (2) The Mother have sole parental responsibility for the children [X] born (omitted) 2001 (“[X]”) and [Y] born (omitted) 2003 (“[Y]”).

(3) [X] and [Y] live with the Mother.

(4) The Applicants, their servants and/or agents (save as set out in Orders (7)-(11) herein) be and are hereby restrained from spending time with or communicating or attempting to communicate with [X] and [Y] or either of them by any means (including but not limited to telephone, text message, email, via “applications” and/or games, online forums and the like).

(5) For and by way of clarification of Order (4) herein, the servants and agents of the Applicants include the Applicants’ children and family members.

(6) In the event that [X] and [Y] or either of them:

(a) contact and/or communicate with the Applicants or either of them by any means, they shall immediately report same to the Respondents and be and are hereby restrained from responding to such contact and/or communication; and/or

(b) attend upon the Applicants or either of them at their home or any other location, they shall immediately telephone the Respondents or either of them and arrange for [X] and [Y] or either of them to be collected.

(7) Communication between the Applicants, [X] and [Y] occur only by letter, card or gift on one occasion each calendar month and at Christmas, Easter and each of [X] and [Y]’s birthdays, with the Mother to pass on to [X] and [Y] such communications and the Mother be at liberty to “vet” same and, at her discretion, refuse to pass it on.

(8) In the event the Mother exercises her discretion pursuant to Order (7) herein, she notify the Father by email within seven days of the exercise of that discretion and the Father will be at liberty to provide substitute communication for that month.

(9) The Mother shall encourage and assist [X] and [Y] in making a prudent response to the Father’s communications pursuant to Order (7) herein.

(10) Commencing the last Sunday in November, the Mother shall do all acts and things necessary to facilitate [X] and [Y] spending time with their siblings [B] born (omitted) 2004 (“[B]”), [C] born (omitted) 2005 (“[C]”) and [D] born (omitted) 2008 (“[D]”) for no less than one day per calendar month at times and places as may be agreed between the parties and failing agreement on the last Sunday of each month (save for Christmas Day 2016 when such time shall take place on 18 December 2016) between 10.00am and 3.00pm at the place nominated by the Mother by email to the Father no less than seven days prior to the time taking place (“the nominated place”).

(11) For the purposes of the time [X] and [Y] spend with [B], [C] and [D] pursuant to Order (10) herein, [B], [C] and [D] shall be taken to and collected from the nominated place by a single member of the Father or Step-Mother’s family who will be permitted to remain with [B], [C] and [D] during the visit but will be restrained from providing [X] and [Y] with their contact details or passing any communication to [X] and [Y] from the Applicants or either of them.

(12) The Applicants, their servants and agents be and are hereby restrained from contacting [X] and [Y]’s health practitioners or schools.

(13) The Mother shall:

(a) keep the Applicants appraised by email of the names of all of [X] and [Y]’s treating practitioners and notify them of their ongoing treatment and any serious illness or injury, suffered by [X] or [Y]; and

(b) authorise any school attended by [X] and [Y] to forward to the Applicants at the Applicants’ expense copies of all school reports, photograph order forms and bulletins usually provided to parents.

(14) The Mother is authorised to provide a copy of these Orders to all of [X] and [Y]’s treating health practitioners and the principal/s of [X] and [Y]’s schools.

(15) The Mother shall continue to do all things necessary to ensure [X] and [Y] receive all appropriate medical care.

(16) The parties be and are hereby restrained by injunction, by themselves, their servants and/or agents from:

(a) denigrating, belittling, rebuking or criticising any other party or any member of any other party’s household, within the presence or hearing of [X] and [Y] or either of them; and

(b) discussing with [X] and/or [Y] any matter of fact or opinion concerning any issue connected with this proceeding.

1. ”

Events Leading to the Contempt Application

6. On Tuesday 18 April 2017, some two days after [X] turned 16, the Mother dropped [X] and [Y] to school. At 10:00am the Mother received a text message from the school to advise that [X] was not at school.
7. The Mother attended the school, spoke to someone in the office and spoke to [Y] who had no idea where [X] was. The Mother then called the Step-Father who returned home from work. The Mother and the Step-Father jointly attended (omitted) Police Station who recorded the case as a missing persons matter and took details from the Mother and the Step-Father of possible people [X] may have gone to. They listed the Father, the Step-Mother, Ms J (who [X] ran away to previously), Mr D (the Step-Mother’s father), and Ms H (the Step-Mother’s mother).
8. The Mother tried to ring the Father and the Step-Mother but her calls went to voicemail. The Mother then texted the Step-Mother who responded she did not know where [X] was.
9. At 2:36pm on 18 April 2017 the Mother received a text message from the Step-Mother in which she advised that her mother Ms H had just rang her and that [X] was with her mother and was well. Set out below is the text message exchange between the Mother and the Step-Mother:

10. On Wednesday 19 April 2017 there was communication between the Applicant’s solicitors and the Respondent’s solicitors in which the Respondent’s solicitor told the Applicant’s solicitor he would strongly advise his clients to attend (omitted) Police Station at 1:00pm that day to return [X] to the Applicants’ care. The Applicants waited at (omitted) Police Station until 2:30pm. [X] was not taken to the police station.
11. On Thursday 20 April 2017 the Applicants issued an urgent Application in a Case seeking disclosure of Ms H’s address and a recovery order for the return of [X].
12. On Friday 21 April 2017 orders were made for Ms H or her nominee to deliver [X] at 10:00am on Monday 24 April 2017 to the counselling section of the Federal Circuit Court for collection by the Mother. The orders also provided for a senior counsellor of the Court to speak to [X] prior to being collected by the Mother to explain to him he was bound by the Court’s orders until he turned 18.
13. On 21 April 2017 orders were also made for a recovery order to issue to lie on the file and in the event [X] was not delivered to the counselling section at 10:00am on 24 April 2017, the recovery order to be executed.
14. What unfolded between 18 April 2017 and 24 April 2017 is at the centre of the contempt application.
15. Between 8:13am and 8:23am on the morning of 18 April 2017, [X] made two telephone calls to Ms H; one of which was for 10 minutes. Ms H when giving her oral evidence indicated she spoke regularly to [X] between when final orders were made on 20 October 2016 and when he ran away on 18 April 2017, in breach of order (4) of the October 2016 orders. Ms H’s evidence is she had no knowledge of the orders restraining her from speaking to [X].
16. On 19 April 2017 [X] was taken by Ms H to the (omitted) Bank to establish an account in his own name, to Centrelink to make application for Youth Allowance and to Medicare to obtain his own Medicare card. In all the forms completed by [X] he lists Ms H as his “guardian”.
17. [X] and Ms H returned to Centrelink with a copy of [X]’s birth certificate on 20 April 2017.
18. It is the Step-Mother’s evidence that on 19 April 2017 she was contacted by her mother seeking clothing for [X], a copy of [X]’s birth certificate and other items. It is the Step-Mother’s evidence she delivered those items to her mother’s home on 19 April 2017 when her mother and [X] were not at her mother’s home.
19. It is alleged that Ms H assisted [X] to prepare a statutory declaration in which he detailed his “abuse” at the hands of the Mother and the Step-Father. It is further alleged that Ms H took [X] to (omitted) Police Station to swear the statutory declaration. It is the evidence of Ms H that the police at (omitted) Police Station had advised she and [X] that as he was 16 they would not get involved. Ms H denies she assisted [X] with the preparation of the statutory declaration or took him to (omitted) Police Station where the statutory declaration was sworn.
20. The Step-Mother was a member of an online step-mothers support group named “Australian Stepmums Support Group” for some years prior to April 2017. As its name suggests, it was a forum for step-mothers to share their issues and offer mutual support.
21. Tendered into evidence were examples of posts made by the Step-Mother to the support group in which she discusses the Father and the Step-Mother’s then-approaching stay application pending the hearing of their appeal against the orders of 20 October 2016 (which appeal was subsequently withdrawn). The tenor of the Step-Mother’s posts were that the Court, the lawyers for the Mother and the Step-Father, the Independent Children’s Lawyer and the report writer were inept and corrupt, the Mother’s lawyer was a “douche bag” and [X] and [Y] were the victims of continuous abuse at the hands of the Mother and the Step-Father and whose wishes to live with the Step-Mother and the Father had gone unheard.
22. Four members of the step-mother’s group, Ms M, Ms H, Ms K and Ms S, swore affidavits and gave vive voce evidence in support of the contempt application. Their evidence and that of the parties and Ms H can be summarised as follows:
    • after October 2016 the Step-Mother would often speak of a “little birdy” who told her [X] constantly suffered mental health abuse at the hands of his mother, [X] was no longer permitted external support for his gender dysphoria and [X] was abused so severely that on one occasion he’d contacted the Kids Helpline;
    • the Step-Mother often spoke of [X]’s impending 16^th birthday and that he would run away at this time;
    • on 18 April 2017 the Step-Mother posted words to the effect: “He’s run! He’s at my mothers. He’s safe. Can’t talk now will post later.”
    • on 20 April 2017 the Step-Mother posted the Mother was going to Court the following day to have [X] returned to her;
    • after the Step-Mother advised [X] had run away, the Step-Mother and several members of the Step-Mother’s group established a new Facebook group called “(omitted)”;
    • the (omitted) group, many of whom lived interstate, all offered support, including offers to take [X] in;
    • Ms S established a “GoFundMe” account for people to contribute to legal costs for [X]. The Step-Mother provided a photograph of [X] and [X]’s bank details for the GoFundMe account;
    • it is the evidence of Ms M that on 21 April 2017 after the hearing of the Mother’s application for a recovery order, she spoke to the Step-Mother who was “obviously distressed” at the Court’s decision. It is her evidence she and the Step-Mother discussed taking up the offers from the (omitted) group for [X] to go interstate and they decided to go ahead with the plan. The Step-Mother denies she agreed with this plan;
    • on the evening of Friday 21 April 2017 the Step-Mother posted to the (omitted) group that court had not gone well and the judge wanted to see [X] the following week;
    • at some stage on Friday evening the Step-Mother posted to the (omitted) group the message: “who wants him?” Shortly thereafter the Step-Mother removed this post and then removed herself altogether from the (omitted) group and the Australian Stepmums Support Group;
    • there was a discussion amongst the remaining (omitted) group members who agreed to assist in [X] being taken out of the State of Victoria;
    • a member of the (omitted) group, Ms E, did some research and found a bus leaving Melbourne for Canberra at 8:00am on the morning of Saturday 22 April 2017;
    • Ms M’s evidence is she then rang the Step-Mother who gave her Ms H’s telephone number. Ms M rang Ms H and spoke to she and [X] who accepted the offer of the bus ticket for [X] to go to Canberra;
    • Ms D, a member of the (omitted) group who resides in Canberra, purchased the bus ticket and emailed it to Ms M. Ms M called Ms H who directed Ms M to email it to her son as her printer was not working. Ms M did so;
    • it is Ms H’s evidence that someone called Ms M rang her Friday night and she spoke to her about [X] and then gave the phone to [X]. It is her evidence [X] went to bed and when she popped her head into his bedroom the next morning, [X] had already left. Ms H’s evidence is that even though [X] did not return all weekend, she thought he was at a friend’s place and was not concerned for him;
    • it is Ms M’s evidence she rang Ms H on the morning of Saturday to let her know that [X] had arrived safely in Canberra. [X] was at Ms D’s home having been collected in Canberra by another (omitted) member, Ms K, and taken to Ms D’s home. It is Ms M’s evidence that when she spoke to Ms H, Ms H told her she had already spoken to [X];
    • it is Ms M’s evidence she telephoned the Step-Mother to tell her [X] was safe and to ask if there was any merit in [X] talking to the Judge. It is Ms M’s evidence the Step-Mother told her she was in her car and that the Father was with her. It is Ms M’s evidence the male in the car, who she believes was the Father, responded to her question about [X] speaking to the Judge by saying “No, absolutely no. She won’t listen”;
    • the Step-Mother admits that whilst in Canberra she communicated with [X] via “(omitted)”, an electronic communication device;
    • on Sunday 23 April 2017 [X] flew from Canberra to the (omitted). This flight was organised by Ms D as [X] was refusing to be taken to the police in Canberra and was insistent on going to Brisbane;
    • [X] was collected at (omitted) airport by Ms H on the afternoon of Sunday 23 April 2017 for delivery to Ms S who had agreed to have [X] stay with her. Ms H drove [X] to a restaurant in (omitted), approximately 1 hour from the airport for collection by Ms S;
    • it is Ms H’s evidence that when in the car with [X] he told her:
      • it wasn’t his choice to come to Queensland so quickly;
      • the Step-Mother organised for him to run away and that he didn’t decide to run away, but was told to;
      • his mother and step-father would go to jail for the amount of times they breached the orders. When asked if his mother and step-father had shown him court orders he said “no” and when asked how he knew his mother and step-father should be in jail, he answered “I just know”;
      • in response to a question about whether he had been communicating with the Father and the Step-Mother, [X] told her he had never stopped communicating by “(omitted)” and by telephone;
      • [X] told her he saw the Father, the Step-Mother and their children on the Friday night before “he ran again”. [X] told her the lights were turned down at his grandmother’s home and they came in and said goodbye;
    • Ms A, another (omitted) group member, gave Ms H the link to the judgment of 20 October 2016 on Austlii. On the evening of Sunday 23 April 2017 Ms H referred Ms M, Ms S and Ms K to the judgment;
    • on the evening of 23 April 2017 Ms H had a four-way telephone link with Ms M, Ms S and Ms K about the need to take [X] to the police station first thing on Monday morning to “check in”. She also spoke to Ms K about [X] saying the Step-Mother had planned for him to run away;
    • Ms S’s evidence is [X] told her he ran away because “my mother and step-father are abusive” but he could not provide any detail of the abuse;
    • it is Ms S’s evidence when she and [X] arrived at her home, [X] was on the telephone to the Step-Mother and the Father telling them Ms S would arrange for him to contact Policelink after her children went to bed;
    • it is Ms S’s evidence on the evening of Sunday 23 April 2017, [X] received a number of text messages from the Step-Mother and the Father. It is her evidence she knows [X] received messages from the Father and the Step-Mother as [X] showed them to her as he didn’t understand them completely. It is Ms S’s evidence the messages were about “coercive control” and he was to use those words when speaking to the police;
    • when Ms S suggested to [X] he shouldn’t be speaking to the Father and the Step-Mother as the Court orders forbade it, it is her evidence he told her he could because “we have this secret app – if I delete it, it can’t be traced”;
    • Ms S’s evidence is on the evening of 23 April 2017 [X] also called Ms H and spoke to her for some time;
    • Ms S’s evidence is [X] also told her he didn’t want to take his prescribed medication for gender dysphoria;
    • after [X] went to bed on the evening of Sunday 23 April 2017, Ms S had a group telephone call with Ms H, Ms K and Ms M. They discussed their “increasing misgivings” about the situation with [X] given, amongst other things, his presentation, the extensive contact he was having with the Father, the Step-Mother and Ms H, that he seemed to be relying on their detailed advice rather than acting on his own and that he was due to attend Court in Melbourne at 10:00am on Monday morning;
    • after the telephone call Ms S read the 20 October 2016 judgment. It is her evidence she then became very concerned about her involvement in [X]’s removal from Victoria;
    • it is Ms S’s evidence that when [X] got up on Monday morning, he told her he had been on the phone to the Father and the Step-Mother “all night” and they told him he should get legal representation that morning and when at the police station ask to phone the Court from there;
    • it is Ms S’s further evidence that [X] also told her that on the Friday before going to Canberra, the Father, the Step-Mother and their children had visited him at Ms H’s home and they turned the lights off so no-one could see them coming or going;
    • Ms S took [X] to the police station at 9:00am on the morning of Monday 24 April 2017. It is her evidence on the way to the police station [X] received a call from Ms H. [X] told Ms S that Ms H was telling him not to go to the police as they would send him back to the Mother. Ms H then spoke to Ms S. It is Ms S’s evidence Ms H was angry and demanded she not take [X] to the police station;
    • at the police station it is Ms S’s evidence [X] was told by the police he could not call the Court from there. Ms S was told as there were Court orders in place, if [X] did not return home she could be arrested for kidnapping. It is her evidence [X] repeated “almost word for word” his allegations of abuse by the Mother and the Step-Father. He also told the police he didn’t want to continue on his gender dysphoria medication;
    • after speaking to the police, Ms S contacted a number of the (omitted) group members to advise [X] had to be sent home. She purchased a plane ticket for [X] to fly to Melbourne on the afternoon of 24 April 2017;
    • just before 1:00pm on 24 April 2017, whilst still at Ms S’s home, [X] received a telephone call from the Step-Mother. It is Ms S’s evidence she heard at least half of the call as [X] asked her to join the conversation and put his phone on speaker. Ms S recorded that part of the telephone call she heard. By consent the recording of the call was placed into evidence. The Step-Mother did not know she was being recorded;
    • during the telephone call the Step-Mother told [X] to leave all the items given to him by the Step-Mother and the Father with Ms S in Queensland, including the telephone, laptop and some documents and clothes. She instructed [X] to delete all messages from his phone and all communication on (omitted) when he left Ms S’s home. She also asked Ms S to delete anything she has that mentions [X], “you know, on social media or phone or whatever”;
    • the Step-Mother also discussed with [X] at length how he was to avoid being detected upon arrival at Melbourne airport, that he was to immediately take a taxi to a shelter address she had provided him with and what to say when he got to the shelter;
    • other than this telephone call, the Father and the Step-Mother deny any telephone communication with [X] from the time the 20 October 2016 orders were made;
    • it is the Step-Mother’s evidence that she spoke to [X] in the manner she did on 24 April 2017 because in the first half of the call that is not recorded [X] was reluctant to return to Melbourne and she spoke in this way to ensure he got on the plane;
    • Ms K ascertained the Mother’s lawyer’s details from the judgment and with the agreement of Mses Ms M, Ms S and Ms H contacted him to advise what had occurred and that [X] was returning to Melbourne that afternoon;
    • after the Mother’s solicitor heard from Ms K, he contacted the Australian Federal Police. Upon [X]’s return to Melbourne, with the assistance of the Australian Federal Police, [X] was returned to the Mother’s care;
    • the Mother made contact with Ms S and on 25 April 2017 flew to Brisbane where she met Ms S at the airport. Ms S gave the Mother a box that contained all the items left in her possession by [X];
    • in the Mother’s affidavit sworn on 25 May 2017 in support of the Contempt Application she sets out in paragraphs [9] and [10] the items and documents contained in the box returned by Ms S and those items [X] had in his possession when he returned to her care. Amongst the items contained in the box were letters from [X]’s half-sisters [B] and [D]. [D]’s letter, a copy of which is annexed to the Mother’s affidavit, reads as follows:
      • “

      Dear [X], Take this to remember us kids love you, I’m so proud of you somebody hast

      • (sic)

      to have some brave guts to run away from home and leave … your bother

      • (sic)

      and family yove

      • (sic)

      lived with your whole life But at least your free

      • (sic)

      . Ive missed you the whole time you were gone I’m so happy now we can visit you a lot more. I think mums friend will take care of you. And we will know were

      • (sic)

      you are, you haft

      • (sic)

      to not tell. I hope you like the stuff we brang

      • (sic)

      . I miss you but remember we know were

      • (sic)

      you are so we can still visit you. Sorry if I made you look fat your not

      • (sic)

      I had to do it in the car it was bumpy. Love you lots of love from [D]. xoxo

      ”
23. on the evening of Monday 24 April 2017 Ms S telephoned the Step-Mother. Ms S recorded her conversation with the Step-Mother. The Step-Mother did not know the conversation was being recorded. By consent, the recording was tendered into evidence. The following is an extract of the conversation between the Step-Mother and Ms S:

After a discussion of all the terrible things that [X] says occurs in the Mother’s home, the Step-Mother asked Ms S “did he show you his affidavit?” The following conversation took place:

There was a discussion about the items left behind by [X] with Ms S and the difficulties that would create. The Step-Mother then said:

“I’m telling you right now I had a kid that was saying to me that he couldn’t live where he used to live. Now, the thing with [X] is when gets into an emotional meltdown, his brain, he can’t work. So he said, “Can you please help me? Tell me what I should do”. … And when you’ve got a kid – and this is when he came to us in 2014. He came to us and said “Dad, if you send me home, I’m going to kill myself.” Okay? Now, thankfully he doesn’t use that threat any more, but he still says that it is like a prison for him down there. … I can’t do any more. I’m done, Ms S … and if [X] ever contacts me again, I will say … when you’re 18, because I can’t do this any more.”

Further discussions then took place in relation to the items left behind by [X]:

There were some subsequent discussions and Ms S put to the Mother that [X] had told her that he’d been in contact with she and the Father for quite some months. The Step-Mother then responded:

After further discussion between Ms S and the Step-Mother, the following exchange occurred:

23. It is the Step-Mother’s evidence that the telephone owned and used by her in October 2016 and particularly in the five-day period leading up to the events in April 2017 was accidentally dropped by her into the dog’s water bowl on New Year’s Eve 2017 when she was drunk. Accordingly, that phone could not be examined to confirm the Step-Mother’s evidence that she had only communicated with [X] on 22 April 2017 and 24 April 2017.
24. It is the evidence of the Father that the mobile telephone used by him from 20 October 2016 was replaced by his employer in the second week of January 2018. Accordingly, that phone was also unavailable to be examined to confirm his evidence that he had never communicated with [X] after the making of the orders in October 2016.
25. Tendered into evidence by the Step-Mother and the Father were screenshots of text message exchanges allegedly made between the Step-Mother and the Father between 18 April 2017 and 24 April 2017.
26. It is the Father’s evidence that when he changed his phone in the second week of January 2018 he was unable to transfer data from one phone to the other because they were not compatible, in that they had different sim cards. It is his evidence he tried to make back-ups of those things on his old phone that he wished to retain by taking a whole lot of screenshots and posting them on the p-cloud service. The evidence before the Court is that the upload onto the p-cloud was on 28 January 2018, some two weeks after the Father returned the phone from which the screenshots were taken to his employer.

The Law

1. 1. 27. Section 112AP of the Family Law Act 1975 (Cth) (“the Act”):
          • “

          (1) 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.

(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.

(3) The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.

(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.

(5) Where a corporation is in contempt, the court may punish the contempt by sequestration or fine or both.

(6) The court may make an order for:

(a) punishment on terms;

(b) suspension of punishment; or

(c) the giving of security for good behaviour.

1. 1. 1. ”
      28. Rule 19.02 of the Federal Circuit Court Rules 2001 (Cth) relates to contempt other than in the face or hearing of the Court. Rule 19.02 provides as follows:
          • <li “=””>“

          (1) If it is alleged that a person has committed a contempt of the Court (other than contempt in the face or hearing of the Court), an application may be made to the Court for the person to be dealt with for the contempt.

    

(2) An application must:

(a) be in accordance with the approved form; and

(b) state the contempt alleged; and

(c) be supported by an affidavit setting out the facts relied on.

(3) An application may be made:

(a) if the contempt is in connection with a proceeding, by a party in the proceeding

…

(6) When the person attends before the Court, the Court must:

(a) tell the person of the allegation; and

(b) ask the person to state whether he or she admits or denies the allegation; and

(c) hear any evidence in support of the allegation.

(7) After hearing evidence in support of the allegation, the Court may:

(a) if the Court decides there is no prima facie case, dismiss the application; or

(b) if the Court decides there is a prima facie case:

(i) invite the person to state his or her defence to the allegation; and

(ii) after hearing any defence, determine the charge.

(8) If the Court finds the charge proved, the Court may make an order for the punishment of the person.

”
29. The Full Court in Medlow & Medlow [2017] FamCAFC 159 at paragraph [42] cited with approval the Full Court decision of Ibbotsen & Wincen [1994] FamCA 103 at paragraph [67] where it was held:
    “The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s.112AD.
    ”
30. The standard of proof on all charges of contempt is that the charge be proved beyond reasonable doubt. The High Court of Australia in the matter of Witham v Holloway (1995) 183 CLR 525 at 534 held:
    “The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch, that all proceedings for contempt “must realistically be seen as criminal in nature”. The consequence is that all charges of contempt must be proved beyond reasonable doubt.
    ”

The Alleged Contempts

31. The contempt application filed by the Applicants on 25 May 2017 lists eight alleged contempts by either of the Father, the Step-Mother or both.
32. At the commencement of the hearing of the contempt application, each of the contempts were put to the parties and both pleaded not guilty to all contempt charges, save and except the Step-Mother admitted that on 22 April 2017 she spoke to [X] using the software program “(omitted)”, and that on 24 April 2017 she spoke with [X] by telephone.
33. Each of the alleged contempts will be listed, the evidence considered and the appropriate finding made as to whether the Court is satisfied beyond reasonable doubt that the Court orders have not been complied with in such a way that the Respondents have flagrantly challenged the authority of the Court.

Charge 1 – between 20 October 2016 and 21 April 2017 the Respondent Mr Pettit contrary to the terms of Order 4 did communicate with a child subject of this proceeding, namely [X] by means of a software program enabling internet communication, “(omitted)”.

34. There are two bases upon which this allegation is made. The first is the statements made by [X] to Ms H and to Ms S that he had never stopped communicating with the Father and the Step-Mother via (omitted) or by a “secret app”.
35. The second basis is a yellow message card apparently in the Step-Mother’s handwriting that sets out the details for the (omitted) account which is accessed by the email address (omitted) with the password (omitted). This card was found amongst the documents that had been left by [X] with Ms S.
36. The Father is employed as the (occupation omitted) by (employer omitted) and is the (occupation omitted). He conceded that he has an above-average level of expertise in relation to the use of computers and web technology.
37. It is the Father’s evidence that until he received the affidavit of the Mother, he was not aware of the existence of the (omitted) technology, that he knows nothing of the (omitted) account established for [X] and that he has never communicated with [X] using a (omitted) account.
38. The Father agreed that he has established a number of email addresses that end with (omitted) in the name of each of his children. He also agreed that he has a program that redirects all the (omitted) emails to an email address of the Father which he can access if he so chooses, including any email to the (omitted) address.
39. It is the Father’s evidence that the first he knew that the Step-Mother had communicated with [X] by (omitted) when [X] was in Canberra on 22 April 2017 is when the Step-Mother gave her evidence to the Court the day before he gave his evidence.
40. When giving her evidence, the Step-Mother was asked to connect to [X]’s (omitted) account. When she was unable to do so, her explanation was that the Father was the person in their household who was able to and did attend to all matters associated with accounts of this type. The Father was not cross-examined about this aspect of the Step-Mother’s evidence.
41. The (omitted) internet communication tool is such that any communication once deleted cannot be retrieved. There are therefore no records of any (omitted) communications between [X] and the Father available to the Court. Therefore, the only evidence of communication between [X] and the Father between October 2016 and 21 April 2017 is that of Ms H and Ms S that [X] told them of his continuous communication with the Father using “the secret app”/(omitted) throughout the entirety of that period.
42. In these circumstances, it is not possible for the Court to be satisfied beyond a reasonable doubt that the Father communicated with [X] using the (omitted) program.

Charge 2 – between 20 October 2016 and 21 April 2017 the Respondent Ms Pettit contrary to the terms of Order 4 did communicate with [X] by means of a software program enabling internet communication, “(omitted)”.

43. The Step-Mother admits to a (omitted) communication with [X] on 22 April 2017 which falls outside the period of the alleged contempt as pleaded.
44. The evidence of (omitted) communication between the Step-Mother and [X] in the period set out in the contempt allegation is the same as for the Father, being [X]’s comments to Ms H and Ms S that he had been in continuous communication with the Step-Mother using “the secret app”/(omitted) account for a long period of time.
45. The Step-Mother filed three affidavits in relation to these contempt proceedings, the first on 20 June 2017, the second on 7 July 2017 and the third on 8 February 2018. In her affidavits sworn 20 June 2017 and 7 July 2017 she adamantly denies that she has had any contact with [X] via telephone, social media or apps after the 20 October 2016 orders were made.
46. In the Step-Mother’s affidavit sworn 8 February 2018 she concedes that she did message [X] on (omitted) on Saturday 22 April 2017 and again on Monday 24 April 2017.
47. When asked to explain why she had lied in her first two affidavits, it is the Step-Mother’s evidence it was because she was scared it would be found out that she contacted him.
48. It is the Step-Mother’s evidence that she has now closed all her (omitted) accounts.
49. As was the case with the Father, there is no independent evidence before the Court of any (omitted) communication between the Step-Mother and [X] because once deleted that communication cannot be retrieved.
50. [X]’s (omitted) communication with the Step-Mother was deleted from his mobile phone by him upon the specific instruction of the Step-Mother.
51. When asked why she had instructed [X] to delete all communications between her family and [X], it is the Step-Mother’s evidence she did so because she was scared that she would be discovered to have communicated with [X] on 22 April 2017 and 24 April 2017.
52. When it was put to the Step-Mother that retention of the communication between herself and [X] would have verified her evidence that she had not been in any form of communication with [X] other than on the two occasions admitted by her, it is her evidence that she was scared that even two communications with [X] would cause her to be in trouble with the Court because she would be found to be in breach of the Court’s orders.
53. Again, the difficulty is that the evidence before the Court is primarily that of Ms H and Ms S of what [X] told them about the extent of his ongoing communication with the Step-Mother and the card in the Step-Mother’s handwriting containing the details for [X]’s (omitted) account.
54. The only admitted (omitted) communication by the Step-Mother to [X] is on 22 April 2017 which is not in the period contained within charge 2 as pleaded.
55. Whilst the Step-Mother’s denial that she had communicated with [X] in her affidavits sworn 20 June 2017 and 7 July 2017, her instructions to [X] to delete all communications from any devices held by him and her own cancellation of all her (omitted) accounts raise genuine doubts about the veracity of her evidence, it is not possible to be satisfied beyond a reasonable doubt that the Step-Mother communicated with [X] by way of (omitted) between 20 October 2016 and 21 April 2017.

Charge 3 – between 20 October 2016 and 24 April 2017 the Respondent Ms Pettit contrary to the terms of Order 4 did communicate [X] (sic) by means of a telephone call or telephone calls.

56. The Step-Mother admits to telephoning [X] on 24 April 2017. Given the recording of her conversation with [X] on this day that was tendered into evidence she had to admit to that call.
57. She denies however any other telephone communication with [X] whatsoever after the 20 October 2016 orders.
58. It is the evidence of Ms S that when [X] arrived at her home on Sunday 23 April 2017, she heard [X] on the telephone with the Father and the Step-Mother and that further, both the Father and the Step-Mother sent a number of text messages to [X] after that call during the afternoon and early evening of 23 April 2017. It is Ms S’s evidence that she saw the text messages from the Step-Mother and the Father as [X] showed them to her because he didn’t understand them completely.
59. It is Ms S’s further evidence that on the morning of 24 April 2017, [X] came out of his room and told her that he had been on the phone with the Step-Mother and the Father “all night”.
60. Ms H and Ms S also give evidence that when they suggested to [X] that it was not appropriate he speak to his father and step-mother, he told them he had been talking to them over a long period of time.
61. Ms H, the Step-Mother’s mother, swore an affidavit in these proceedings on 8 February 2018. In her affidavit she deposes at paragraph [4] that on 18 April 2017 she came home at approximately 10:30-11:00am, pulled into her driveway and [X] was sitting on her doorstep in a shaken and distressed state. She deposes that she sat him down and asked him why he was there and how he got to her house. She deposes that [X] refused to tell her how he got there but said that because he was 16 he had left home and didn’t want to return.
62. When giving her vive voce evidence it was put to Ms H that on the morning of 18 April 2017 she was rung twice by [X], once at 8:13am and again at 8:23am and that during one of those telephone conversations she spoke to him for ten minutes. She then agreed that she had in fact spoken to [X] twice that morning.
63. When questioned about the matters discussed during the ten minute call she had with [X], Ms H’s evidence was that perhaps [X] had discussed those matters with her on one of his previous calls to her. Ms H agreed she had been speaking regularly with [X] since the orders were made on 20 October 2016.
64. Orders 4 and 5 of the orders made 20 October 2016 are unambiguous. Order 4 clearly states that the Applicants, their servants or agents are restrained from communicating with [X] by any means. Order 5 states that for and by way of clarification of order 4, the servants and agents of the Applicants include the Applicants’ children and family members.
65. Ms H was asked whether she had been provided with a copy of the orders made by the Court on 20 October 2016 or had them explained to her by either of her daughter or son-in-law. It is her evidence that the orders had not been explained to her other than she had been told that [X] and [Y] were not to spend time or communicate with the Step-Mother or the Father.
66. When the Step-Mother and the Father were cross-examined as to whether they had explained the orders made by this Court in relation to the restrictions on family members being able to communicate with [X], both indicated that whilst they had discussed the orders in general with Ms H, they had not specifically explained them to her.
67. I do not accept either the evidence of Ms H, the Father or the Step-Mother in this regard.
68. Ms H was not a witness of credit. I am satisfied that she openly lied to the Court. Where her evidence differs from that of other witnesses and in particular the evidence of Ms M and Ms S, I prefer the evidence of Ms M and Ms S.
69. The Step-Mother and Ms H have a close relationship and they are in regular communication with each other. It is open to this Court to make a finding that the Step-Mother knew Ms H was communicating with [X] in contravention of the orders and that she did nothing to interfere with that communication.
70. Further, the Step-Mother and the Father had a positive obligation to ensure that all who were impacted by the orders of this Court were fully appraised of the terms of those orders and the limitations those orders placed on them, particularly in relation to their communication with [X] and [Y].
71. Therefore, in relation to the question of whether the Step-Mother was in contempt of the orders of this Court in relation to communicating with [X] by telephone in breach of order 4, I am satisfied beyond a reasonable doubt that there has been a flagrant disregard of those orders by the Step-Mother. Accordingly, I find the Step-Mother has breached the orders as particularised in charge 3 and that charge is proven.

Charge 4 – between 20 October 2016 and 21 April 2017, Ms Pettit and Mr Pettit; alternatively, Ms Pettit; alternatively, Mr Pettit did, contrary to the terms of Order 4 conspire to procure [X] to breach the Order by running away from the Applicants’ residence, and seeking harbour at the home of Ms Pettit’s mother, one Ms H.

Particulars

(a) [X] was encouraged by Ms Pettit and/or Mr Pettit to believe that in the event he ran away from the applicants’ residence, he would not be required to return.

(b) [X] was told by Ms Pettit and/or Mr Pettit that in the event he sought harbour at the home of the said Ms H, he would be given it, and any attempts to return him to the applicants’ residence would be successfully resisted.

(c) Ms Pettit and/or Mr Pettit did arrange with the said Ms H to provide harbour to [X], and she then said Ms H did so.

72. It is the evidence of Ms H that [X] told her that the Step-Mother had organised him to run away and that he had only known on the day that he was going to “run”. It is Ms H’s evidence that she asked [X] “so you didn’t organise this yourself?” to which he replied “no, I was told to”.
73. At the hearing of the contested parenting orders that led to the judgment on 20 October 2016, it was apparent from the evidence of the Father and the Step-Mother that they harboured the mistaken belief that [X] could determine where he could live once he turned 16 years of age.
74. It is the evidence of the members of the stepmothers group who gave evidence in this hearing, that the Step-Mother over several months consistently posted in her communications to the group prior to [X] running away that when [X] turned 16 he would be able to choose where it was that he was to live.
75. The evidence of Ms H is that she believed that [X] was able to choose where he wanted to live when he turned the age of 16 years.
76. The evidence before the Court is that on the morning that [X] ran away he spoke to Ms H for at least ten minutes. He then ran away to Ms H’s home.
77. On 18 April 2017 the Step-Mother posted on the step-mother’s support group site “He’s run! He is at my mothers. Cannot talk much about it now, but will post later.” I am in no doubt that [X] had been told by the Father and the Step-Mother that when he turned 16 he could decide where it was that he was to live. I am in no doubt that when [X] rang Ms H two days after he turned 16 that he was encouraged by her to run away to her home.
78. The real question for determination in relation to this charge is whether on the day that [X] ran away, Ms H was acting as the agent for the Step-Mother and/or the Father, or was acting independently of them.
79. It is the evidence of the Step-Mother and the Father that they had no prior knowledge [X] had run away until contacted by the Mother. It is their further evidence that they did not know he was at Ms H’s home until she had advised the Step-Mother of this fact.
80. Ms H denied that she was aware of the orders that prevented her from speaking with [X]. The Step-Mother and the Father gave evidence that they had never provided Ms H with a copy of the orders or discussed with her in detail the limitations those orders placed on her capacity to communicate with [X] and [Y].
81. The Step-Mother has a close and loving relationship with her mother and they are in regular contact with each other. Ms H describes herself as [X] and [Y]’s “nanna” and became visibly angry and insulted when it was suggested she was only [X]’s “step”-grandmother. The Court’s finding that Ms H knew of the orders made by the Court on 20 October 2016 and told her daughter and son-in-law that she was speaking to [X] is contained in paragraph [67] of this judgment.
82. In response to questions put to her as to why her mother did not comply with the Court’s orders, firstly not to speak to [X] and secondly to produce [X] to the Court on the morning of 24 April 2017, the Step-Mother responded that “no-one can tell a (nationality omitted) mother (i.e.; Ms H) what to do.”
83. Whilst I am satisfied beyond reasonable doubt that [X] did not run away of his own volition and that his decision to do so on 18 April 2017 was because he was told to do so by other persons, I cannot be satisfied beyond a reasonable doubt that those persons were the Step-Mother and the Father or that Ms H was acting as the agent for them.
84. Accordingly, this charge cannot be found to have been proved.

Charge 5 – prior to, in 2017, and on or about 21 April 2017 Ms Pettit did conspire with, inter alia, Ms S, Ms K, Ms H, and Ms M to secrete [X] interstate out of Victoria for the purpose of frustrating the execution of the Recovery Order made that day by this Honourable Court.

Particulars

(a) Ms Pettit posted messages to the said persons seeking assistance in frustrating the operation of the Final Orders, and seeking counsel as to defeating the operation of the same.

(b) Ms Pettit engaged in direct telephonic communications with one or more of the said persons with a view to convincing them or all of them that [X] was in substantial danger of harm in the event the Final Orders continued to operate in their terms.

(c) Ms Pettit and/or Mr Pettit took steps to, and did, obtain:

• an alternative Medicare card for [X];

• a new bank account in [X]’s name with his address being noted as that of the said Ms H;

• a letter to prospective employers of [X] authorising them to pay any money due to [X] into such new bank account;

• a new, blank computer for [X];

• a new, blank mobile telephone for [X].

85. The removal of [X] from Melbourne to the (omitted) via Canberra is set out in paragraph [22] of this judgment.
86. It is the Step-Mother’s evidence that while she concedes that she discussed the Court case involving [X] and [Y] with the step-mother’s support group, she had not referred to the Court as corrupt, the Independent Children’s Lawyer as biased and inept, the Mother’s lawyer as a “douche bag” or the Court’s experts as unqualified and corrupt.
87. The evidence of Mses Ms M, Ms H, Ms K and Ms S is to the contrary. The examples of some of the Step-Mother’s posts sighted by the Court are clearly in the terms described by the members of the step-mothers group and the Step-Mother’s evidence in this regard is rejected.
88. It is the Step-Mother’s evidence that she at no time conspired with the step-mothers group to have [X] taken out of Victoria in order to frustrate the Court’s orders. It is her evidence that when it became apparent to her that the step-mothers group was contemplating some form of intervention to remove [X] from Victoria, she told them that things were going too far, she did not want anything to happen, she did not want anything to do with any of it and that it needed to stop. She then removed herself from the step-mothers group.
89. It is the Step-Mother and the Father’s evidence that they had no knowledge of [X] being taken to Canberra and then to the (omitted) at the time that that occurred until, on the Step-Mother’s evidence, she spoke to [X] for the first time in almost 12 months on the morning of 24 April 2017.
90. This is in stark contrast to the evidence of Mses Ms M, Ms H, Ms K and Ms S. It is Ms M’s evidence that she spoke to the Step-Mother on Friday 21 April 2017 after the recovery order had issued and that she discussed with her the offers from members of the step-mothers group to move [X] to go interstate. It is Ms M’s evidence that she and the Step-Mother decided to go ahead with the interstate plan and that the Step-Mother then indicated she would withdraw from the Facebook group so she could not be implicated.
91. It is Ms M’s evidence that once she spoke to members of the (omitted) group who ascertained that a bus could take [X] from Melbourne to Canberra at 8:00am on the morning of Saturday 22 April 2017, she again spoke to the Step-Mother by telephone and was given Ms H’s number to call. Ms M then rang Ms H and spoke to her and to [X] and the offer to send [X] to Canberra by bus was accepted. It is Ms M’s evidence that Ms H thanked her for keeping [X] safe.
92. Ms D, who was to be [X]’s destination in Canberra, booked [X]’s bus ticket and emailed it to Ms M. It is Ms M’s evidence that she then again called Ms H to ask for her email address so that she could send her the ticket. It is Ms M’s evidence that Ms H told her that her printer wasn’t working and that the ticket would need to be emailed to her son as he would be taking [X] to the bus the next morning.
93. It is interesting to note that in the Step-Mother’s recorded conversation with Ms S, the Step-Mother told Ms S that on 19 April 2017 when she was delivering documents, clothing, laptops and other items for [X] to Ms H’s home, she went into her mother’s home to repair her printer.
94. It is Ms M’s evidence when [X] arrived safely in Canberra, she telephoned Ms H to let her know of [X]’s safe arrival and Ms H told her she had already spoken to [X] and was aware of this fact.
95. Ms M’s evidence is that she then telephoned the Step-Mother who advised her that the Father was in the car with her. Ms M told the Step-Mother and the Father that [X] was safe in Canberra and asked them whether there was any merit in [X] speaking to the judge. It is Ms M’s evidence that the man in the car with the Step-Mother, who she believes to have been the Father, responded in the negative to this suggestion.
96. As has been set out in this judgment, on 23 April 2017 [X] was then flown to the (omitted) where he was picked up by Ms H at the airport. Ms H then drove [X] to a restaurant where they met Ms S, who took [X] back to her home. Both Ms H and Ms S’s evidence is that [X] was in constant contact with the Step-Mother, the Father and Ms H throughout the entirety of this period.
97. The Step-Mother and the Father deny all knowledge of [X] being removed from Victoria. It is their evidence that the entire enterprise was conceived, paid for and arranged by the (omitted) group. It is the Step-Mother’s evidence that whilst she posted the message “who wants him?” to the step-mothers support group, she did so in jest and removed the message as soon as she realised that some of the group was seriously contemplating taking further action in relation to [X].
98. It is the Step-Mother’s evidence that when she contacted [X] by (omitted) on Saturday 22 April 2017, she had no idea that he was in Canberra and that the extent of her communication with him was to tell him that she loved him and missed him. Her explanation for this communication was that she didn’t think she would have an opportunity to communicate with him again until he turned 18.
99. In paragraph [22] of this judgment an extract from the transcript of the conversation between the Step-Mother and Ms S on the evening of 24 April 2017 is set out. As can be seen, the Step-Mother’s comments to Ms S which were made contemporaneously with the events that led to this contempt application contradict the Step-Mother’s evidence that she did not know [X] was being taken to Canberra through the auspices of the (omitted) group and with the assistance of her mother.
100. It is the evidence of the Step-Mother and the Father that Mses Ms M, Ms K, Ms H and Ms S are all lying when they implicate the Step-Mother and the Father in the plot to remove [X] from Victoria. When asked why these women would perjure themselves, it is the evidence of the Step-Mother and the Father that they were doing so to try and shift the blame for [X] being taken out of Victoria to the Step-Mother and the Father rather than it being on themselves because of their concerns they could face police charges for their actions.
101. In support of their contention they knew nothing of the plans for [X] to run away and the subsequent removal of him from the State of Victoria, the Step-Mother and the Father rely on the screenshots of the messages they allege passed between them between 18 April 2017 and 24 April 2017 that were tendered into evidence.
102. The manner in which those screenshots came into being is set out in paragraphs [25] to [26] of this judgment. That these messages appear to have been created some two weeks after either party had possession or ownership of the telephones on which these messages were originally sent raises genuine concerns as to the authenticity of those messages and as such, this Court places no weight upon them.
103. Whilst the actions of Mses Ms M, Ms K, Ms H and Ms S were ill-informed, ill-conceived, arrogant, potentially illegal and could have genuinely placed [X] at risk of harm in that a young, troubled boy was allowed to travel unaccompanied across the country, it is apparent from the evidence of all four women that they had been led to believe by the Step-Mother that [X] was the victim of vile abuse in the hands of his mother and step-father, that the actions of this Court were a travesty of justice and that [X] had run away from his abusers of his own volition as soon as he believed he was legally able to do so. Their evidence that their actions were motivated, albeit mistakenly, by a desire to protect a vulnerable at risk young person is accepted.
104. Once the (omitted) group had met [X], spoken to him, observed and listened to his constant interactions with the Step-Mother, the Father and Ms H and been provided with and perused a copy of the judgment of 20 October 2016, they, to their credit, immediately put in train the necessary steps to return him to the Mother’s care.
105. I do not accept the evidence of the Step-Mother and the Father that the members of the (omitted) group who gave evidence at the final hearing lied in order to protect themselves from possible legal sanction. Despite their belief that their actions were protecting [X], their actions in and of themselves are sufficient to attract legal sanction. In placing the evidence of what they did before the Court, they have placed themselves more at risk of legal sanction than if they had remained quiet.
106. More relevantly, I found Mses Ms M, Ms K, Ms H and Ms S to be witnesses of truth and where their evidence differs to that of the Step-Mother, the Father and particularly of Ms H, I prefer the evidence of Mses Ms M, Ms K, Ms H and Ms S.
107. In relation to the particulars of contempt set out under sub-heading (c) of this charge, it is the evidence, which is not disputed, that Ms H took [X] to obtain a new Medicare card, a new bank account and a letter to prospective employers authorising payment into [X]’s new bank account. The ability of [X] to obtain these documents was facilitated by the Step-Mother and/or the Father providing [X]’s birth certificate for that purpose.
108. The Step-Mother concedes that she provided [X] with a laptop and a phone for his use.
109. The evidence of the Step-Mother is that she didn’t mean to set this train of events in motion, that as soon as she had wind of it she immediately washed her hands of it and what thereafter ensued she had neither knowledge nor control of.
110. The evidence of the Father is that he knew absolutely nothing about anything that occurred until after it had happened.
111. The overwhelming evidence however does not support that this is what unfolded.
112. I am satisfied beyond reasonable doubt that the Step-Mother knew exactly what was being planned in relation to the removal of [X] from Victoria and that she made a deliberate decision to remove herself from the Facebook group in an effort not to be implicated. Thereafter she was spoken to by Ms M on more than one occasion to discuss what was happening with [X], as was her mother and on one occasion the Father.
113. The Father conceded when he was giving evidence that if the Court was satisfied the Step-Mother knew of this plan then he too would have known of the plan as he and his wife have a relationship in which they discuss openly with each other everything that is occurring, particularly in relation to their children.
114. Accordingly, I find beyond reasonable doubt that the Respondents acted in such a way as to frustrate the execution of a recovery order made by this Court on 21 April 2017 and did so in flagrant disregard of this Court’s orders. Accordingly, charge 5 is proved against both the Father and the Step-Mother.

Charge 6 – On or about 21 April 2017 Ms Pettit and Mr Pettit; alternatively, Ms Pettit; alternatively, Mr Pettit did, contrary to the terms of Order 4, and after the making of the said Recovery Order by this Honourable Court as aforesaid, and with full knowledge of the making thereof, have face-to-face contact with [X].

Particulars

(a) Ms Pettit and/or Mr Pettit arranged for a “farewell party” for [X] to be held at the home of the said Ms H, at which Ms Pettit, Mr Pettit, their children, [X]’s step-grandfather Mr D, and the said Ms H attended;

(b) During the “party”, [X] was given a suitcase full of clothing and other belongings, the items referred to at sub-paragraph 5 c) hereof, and farewell communications from Ms Pettit and Mr Pettit’s children.

115. It is the evidence of Ms H and Ms S that [X] told both of them that he had seen the Step-Mother, the Father and their children at the home of Ms H on the Friday night before he “ran again”. Interestingly, [X] told both Ms H and Ms S how the lights at Ms H’s house had been turned down so no-one could see the Father, the Step-Mother and their children coming into or leaving the house.
116. The Step-Mother, the Father and Ms H all deny that any such meeting took place.
117. It is the Step-Mother’s evidence that when she took the bag of items over to her mother’s house for [X] on 19 April 2017, it was during the day and neither [X] nor her mother were at home.
118. The Step-Mother explains the letters from [X]’s sisters [B] and [D], which were discovered in the items left behind by [X] at Ms S’s home, as having been written by them after they overheard her speaking on the phone about [X] after he had run away. It is her evidence that unbeknownst to her, they wrote these letters and slipped them into the bag with the items for [X] without her knowledge.
119. The difficulty with this explanation is the content of [D]’s letter, which is set out in paragraph [22] of this judgment.
120. It is apparent from the letter that [D] knew that [X] had run away, that [X] was going to a friend of her mums and that it was written in the car, possibly when driving over to see [X].
121. In the telephone conversation between Ms S and the Step-Mother on the evening of 24 April 2017, in response to a question from Ms S about the letters from [B] and [D], the Step-Mother gave this explanation:

     “…they were given because they were dropped off – when I was dropping the stuff off, this one is – like, I – when I went to see my mum, she had an issue using her printer, so I asked her to take my two kids with [X] out to Macca’s. They went up to Macca’s for lunch. I fixed my mum’s printer. And I left all of that stuff there for them – for him, including his birth certificate, everything, and then they wrote him those letters.

     ”
122. It is the Step-Mother’s evidence that some of what she said to Ms S was true and some of it was not true. She explains the untruths in her conversation with Ms S as arising because she suffers from severe anxiety and depression and had taken considerable medication for those conditions at the time of that call.
123. It is noted that the Step-Mother’s evidence is that those aspects of her communication with Ms S that support her position are the truth and those which support the evidence of Ms M and Ms S are not the truth.
124. The combined evidence of [X]’s consistent statements to Ms S and Ms H, the inconsistencies in the Step-Mother’s evidence to the Court, the transcript of the Step-Mother’s call with Ms S and particularly [D]’s letter, is such that I am satisfied beyond reasonable doubt that there was a meeting between [X] and at least [B] and [D], and in all probability the whole of the paternal family, prior to [X]’s departure to Canberra.
125. I therefore find beyond reasonable doubt that the Step-Mother and the Father together with [B], [C] and [D], in flagrant disregard of the orders made 20 October 2016, met with [X] at the home of Ms H on or about 21 April 2017 in breach of order (4) of the Court’s orders of 20 October 2016.
126. Accordingly I find charge 6 proven.

Charge 7 – on or about 21 and/or 22 and/or 23 April 2017, contrary to the terms of the said Recovery Order:

7.1 Ms Pettit and/or Mr Pettit procured the said Mr D to drive [X] to a bus station where he there and then boarded a bus for Canberra;

7.2 [X] was, as Ms Pettit and/or Mr Pettit well knew and had arranged, met by one Ms K in Canberra;

7.3 From Canberra, [X] went by plane to Queensland, where he was met, as Ms Pettit and/or Mr Pettit well knew and had arranged, by Ms S (sic), and given accommodation by her.

127. There is no evidence before the Court as to who drove [X] to the bus station.
128. There is no evidence before the Court that either of the Step-Mother or the Father knew that [X] was going to be met by Ms K.
129. When [X] arrived in Queensland he was met by Ms H, not Ms S. Ms S did however provide him with accommodation. There is no evidence before the Court that at the time this occurred the Father and the Step-Mother knew the identity of those who were meeting [X] or who was going to accommodate him.
130. Accordingly, as pleaded, charge 7 has not been proved beyond a reasonable doubt.

Charge 8 – the actions taken, and the events set in train, by Ms Pettit and/or Mr Pettit referred to in paragraphs 1-7 inclusive above were:

8.1 Taken by them in the full knowledge of the existence of orders of this Honourable Court prohibiting such actions, alternatively in the full knowledge that such actions were at the least contrary to the intention of such orders;

8.2 Calculated by them or either of them to frustrate or defeat the operation of such orders;

8.3 Entered into by them or either of them deliberately, with a view that the natural consequences of their actions would follow;

8.4 In flagrant disregard of the authority of this Honourable Court.

131. Whilst this charge is pleaded in such a way as to refer to “paragraphs 1-7”, given the findings made in relation to charges 3 and 6 herein and most particularly in relation to charge 5, the Court is satisfied that the actions and events set in train by the Step-Mother and the Father were taken by them in full knowledge of the existing orders of the Court prohibiting such actions, were calculated by them to frustrate or defeat the operation of the orders, were entered into by them deliberately with a view to procure [X]’s removal from the State of Victoria and were done so in flagrant disregard of the authority of this Honourable Court.
132. Accordingly charge 8 is found proven.

Conclusion

133. Given the findings that charges 3, 5, 6, and 8 are proven, the matter will be listed for submissions on the question of the penalty to be imposed.

Contravention Application

134. As set out in paragraph [2] of this judgment, Counsel for the Applicants advised the Court that the Contravention Application was filed “in the alternative” in the event the Court was not satisfied that the charges alleged could be found proven beyond reasonable doubt.
135. Given the findings of this Court that the Step-Mother and the Father are in contempt of this Court, albeit not on all charges contained in the contempt application, it is not my intention to address the contravention application in the alternative.
136. I would however make the observation that insofar as the alleged contraventions numbered 1, 2 and 4 in the Contravention Application which are in identical terms to charges 1,2 and 4 of the Contempt Application, I would have been satisfied on the balance of probabilities that the Father and the Step-Mother were communicating with [X] between 20 October 2016 and 21 April 2017 both by way of (omitted) and telephone and that they had conspired with Ms H to procure [X] to run away from the Mother’s residence to the home of Ms H.

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date: 3 May 2018