N8299
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 622 OF 2014 (CC3)

BETWEEN
STUART WILLIAM CONWAY
Plaintiff

AND
CHARLENE SUNITA SAMUEL
Defendant

Waigani: Makail, J
2019: 11th April & 2020: 1st May

CONTEMPT OF COURT – Motion for contempt – Contempt of court order – Order for access to children – Breach of Court order – Proof of 

PRACTICE & PROCEDURE – Pleadings – Statement of charge – Adequacy of pleadings

Cases Cited:

Andrew Kwimberi v. The State (1998) SC545
Sir Toami Kulunga v. Geoffrey Vaki (2014) SC1389
Stuart Conway v. Charlene Samuel (2015) N6133

Counsel:

Mr. S. Gor, for Plaintiff
Mr. A. Aigilo, for Defendant 
  
VERDICT ON MOTION FOR CONTEMPT

1st May, 2020

1.	MAKAIL, J:   There are two motions for contempt for ruling.  These are:
	(a)	The plaintiff’s motion filed 11th December 2017; and 
	(b)	The defendant’s motion filed 1st May 2018.

Motion for Contempt

2.	Each motion is supported by a statement of charge, the plaintiff’s was filed 11th December 2017 and the defendant’s, 1st May 2018.	

3.	Each party pleaded not guilty to the charge through their lawyers.

Court Orders

4.	The contempt, it is alleged, is based on Court orders of 4th November 2014 and 17th November 2014 and consent order of 19th February 2015. 

5.	At the centre of these orders are two children of the marriage between the plaintiff and defendant.  One is a boy of about 9 years and the other a girl of about 8 years after their parents separated and living in separate homes. 
 
6.	The orders were made to grant to their father, access to them while they are in the custody of their mother. 

7.	According to the first order (4th November 2014), the plaintiff has been granted access to them between the hours of 10:00 am on Saturdays and 3:00 pm on Sundays.

8.	The second order (17th November 2014) reduced the access time for the plaintiff to every second weekend between the hours of 10:00 am on Sundays starting from Saturday 29th November 2014.

9.	The third order (19th February 2015) is much more extensive and detailed and, amongst other things, gives the plaintiff access to the children as follows:

•	Beginning Friday 6th February 2015, for two weekends out of the following four weekends during the following times:

•	6:00 pm Friday and return the children to the defendant’s home prior to 6:00 pm on Sunday.

•	After this initial four week cycle, then the plaintiff have access for three out of the following times:

•	6:00 pm Friday and return the children to the defendant’s home prior to 6:00 pm on Sunday.

•	This arrangement excludes school/day care holiday periods.

•	During school/day care holidays:

•	The plaintiff have access to the children for the first half of each school holiday period, except Christmas holiday.

•	For Christmas holiday period for 2015, the plaintiff have access to the children for the first half, but the plaintiff deliver the children to the defendants at 8:00 pm on Sunday 13th December, and return them on 8:00 am on Monday 14th December 2015.

•	The parties shall alternate so that the defendant will have the first half of the school/day care holidays from 2016 and so on.

•	Notwithstanding any other order, the children shall spend the day with that parent on that parent’s birthday from 8:00 am on the birthday until 8:00 am the following day.

•	The Malaysian Property

In so far as the jointly owned Malaysian property is concerned, it be sold and the parties share the net proceeds of sale in proportion to the financial contribution of that party.

Statement of Charge by Plaintiff

10.	According to paragraph 4.17 of the statement of charge by the plaintiff, the defendant is charged for refusing access to the children when the plaintiff went to collect them on Saturday 15th November 2014.  It is alleged she breached the order of 4th November 2014.

11.	According to paragraph 4.18 of the statement of charge by the plaintiff, the defendant is charged for refusing access to the children when the plaintiff went to collect them on Sunday 14th December 2014.  It is alleged she breached the order of 17th November 2014.

12.	According to paragraph 4.19 of the statement of charge by the plaintiff, the defendant is charged for ceasing all access to the plaintiff by July 2015 until after the decision of the Court on 9th December 2015 which refused the defendant’s application to stay or vary the consent order of 15th February 2015.
13.	Secondly, at paragraphs 4.25 to 4.32 of the statement of charge, the defendant is charged for interfering or obstructing the enforcement of the order when she wrote letters to the Department of Community Development NCD Family Welfare Services (Welfare) in September and November 2016 requesting Welfare to prevent the plaintiff from having access to the children.

14.	The Welfare issued directions preventing the plaintiff from having access to the children on 28th September 2016.

15.	Thirdly, at paragraphs 4.34 to 4.39 of the statement of charge, the defendant is charged for failing to pay half of the proceeds of sale of the parties jointly owned Malaysian property to the plaintiff.

16.	It is alleged the defendant breached the consent order of 19th February 2015.

Statement of Charge by Defendant

17.	According to paragraph 4(e) of the statement of charge by the defendant, the plaintiff is charge with nineteen (19) counts for failing to collect the children on the dates and times fixed by the Court.  

18.	It is alleged the plaintiff breached the consent order of 19th February 2015, the particulars of which are as follows:

•	1st to 8th April 2015, the plaintiff had the children longer than the defendant

•	8th to 10th May 2015, it was the plaintiff’s weekend but he failed to collect the children

•	3rd weekend in August 2015, the plaintiff failed to collect the children

•	December 2015, the plaintiff dropped off the children at 4:00 pm on 24th December and collected them at 9:00 am on 26th December

•	29th to 31st January 2016, the plaintiff failed to collect the children

•	26th to 28th February 2016, the plaintiff forgot to collect the children

•	22nd to 24th July 2016, the plaintiff failed to collect the children

•	5th to 7th August 2016, the plaintiff failed to collect the children

•	19th to 21st August 2016, the plaintiff failed to collect the children

•	24th to 30th September 2016, the plaintiff changed the holiday access so he had the first half of the school holidays
•	February and March 2017, the children refused to go with the plaintiff

•	21st to 23rd April 2017, the plaintiff failed to collect the children

•	12th to 14th May 2017, the children refused to go with the plaintiff when he turned up to collect them

•	9th to 11th June 2017, the plaintiff failed to collect the children

•	30th June 2017, the children refused to go with the plaintiff

•	July 2017, the plaintiff collected the children on the defendant’s allocated weekend along with his weekend

•	18th to 20th August 2017, the plaintiff failed to collect the children

•	13th to 15th October 2017, the plaintiff failed to collect the children

•	23rd to 25th March 2018, the plaintiff failed to collect the children on time and tried to switch his holiday time with them with the defendant

Evidence

19.	I have read the affidavits filed by the parties.  These are:

•	Affidavit in support of plaintiff filed 28th October 2015 - exhibit “P1”.
•	Affidavit of plaintiff filed 4th February 2016 - exhibit “P2”.
•	Affidavit of plaintiff filed 6th December 2017 - exhibit “P3”.
•	Affidavit of Teniko Uave filed 11th December 2017 - exhibit “P4”
•	Affidavit of Simon Nutley filed 11th December 2017 - exhibit “P5”
•	Affidavit of plaintiff filed 8th May 2018 - exhibit “P6”.
•	Affidavit of plaintiff filed 8th May 2018 - exhibit “P7”.
•	Affidavit of plaintiff filed 8th May 2018 - exhibit “P8”.
•	Affidavit of defendant filed 1st May 2018 - exhibit “D1”.
•	Affidavit of defendant filed 1st May 2018 - exhibit “D2”.

Breach of Court Order of 4th November 2014

20.	The onus of proof is on the plaintiff to lead credible and admissible evidence to identify the act or conduct complained of that is said to be in breach of court order, the date and time and location of the alleged breach.

21.	In his affidavit in support (exhibit “P1”), the plaintiff deposed that he was to have access to the children from Saturday 15th November 2014 to Sunday 16th November 2014.   

22.	However, when he arrived to collect the children on Saturday 15th November 2014 the defendant refused to allow him to collect or see the children stating that they were too sick.  

23.	She insisted that he was not allowed to have access then he was to collect them on the following day, Sunday 16th November 2014.

24.	The defendant asserts that the order has no application to the plaintiff’s access right to the children because it has been superseded by the consent order of 19th February 2015.

25.	However, she does not deny that the plaintiff did not have the children with him on Saturday 15th November 2014.  

26.	In her response to the charge, she deposed in her affidavit (exhibit “D1”) that the children refused to go to their father on the “access period” allowed by the Court order.  

27.	She did not state that the children could not go with the plaintiff because they were sick.  If they were sick, she did not give the details of the illness. She did not state if they were bedridden, thus unable to leave the house.

28.	These facts are the very least she would have stated in her affidavit.  At the extreme end if she were to justify her decision for not releasing the children to the plaintiff due to their illness, she should produce a medical report.  None was provided.

29.	This leaves her assertion that their children were sick on the day of pick-up lacking and unsupported and it is doubted if they were, in fact, sick. 

30.	It also leaves the plaintiff’s assertion that there was no reason for her to refuse to give him access to the children on that day probable.

31.	It is supported by his unchallenged evidence that the children were well and healthy when he returned to collect them the following day.

32.	For these reasons, I find that the defendant’s assertion that the children were sick unconvincing and reject it.  

33.	I further find that there was no reason for the defendant to refuse the plaintiff access to the children on Saturday 15th November 2014.

34.	It is submitted on behalf of the plaintiff that the defendant’s actions were intended to or calculated or likely to interfere and obstruct the fair or due administration of justice and a guilty verdict be returned as charged. 

35.	Let me say this at the outset.  When a relationship in a marriage between a man and woman reach an untenable position and they decide to part ways, it is often not easy to simply walk away and forget each other.  

36.	A harbour of bitterness and revenge will often linger for a while and pose a real threat to lasting peace, forgiveness and acceptance by the couple for the marriage breakdown. 

37.	Where there are children, the challenge is much greater and sometimes insurmountable for one or both especially where access and custody rights are not amicably settled. 
 
38.	In this case, the plaintiff and defendant were unable to mutually agree on the access and custody rights of their children after they parted ways and sought the Court’s assistance.  
39.	The Court became the “mediator” of their dispute and not one but three different orders were issued by the Court to assist and guide the parties to resolve the dispute over access and custody rights of their children.  

40.	The orders were intended to bring a solution, if not, a lasting one for the parties and their children.  It will come back to the parties to take ownership of the orders and made them happen.  Nobody is going to do it for them.

41.	Where the orders did not meet the expectations of the parties, they were at liberty to apply to the Court to vary them.

42.	The actions of the defendant on Saturday 15th November 2014 did not help her and the plaintiff but created more tension between them.  In the end, the children missed out on having a day out with their father. 
 
43.	The defendant became the authority on when she will comply with the order and when not to.  On that day, she decided not to and the Court order became a worthless piece of document to her.  

44.	However, contrary to her assertion, it was in force and she was bound to comply with it until it is set aside or varied. She made a choice not to comply with it and ended up breaching it.  
  
45.	I accept the submission put forward on behalf of the plaintiff that her actions were intended to or calculated or interfered and obstructed the fair or due administration of justice and a guilty verdict is returned as charged: Andrew Kwimberi v. The State (1998) SC545 and Sir Toami Kulunga v. Geoffrey Vaki (2014) SC1389.

Breach of Court Order of 17th November 2014

46.	In his affidavit in support (exhibit “P1”), the plaintiff deposed that at 10:00 am on Saturday 13th December 2014 he showed up at the 9 Mile property to collect the children for the access allowed by the Court. 
 
47.	He was informed by security guards at the gate to the property that he was to go away as he was not permitted by the defendant to have access to the children that weekend.  

48.	He was told that they were sick.  They were also in bed.  He argued with the security guards and told them that he had an order of the Court to have access to the children.  He did raise his voice and the guards also raised their voice.  
49.	There was no pushing and shoving and no one was hurt.  On leaving the property, he accidently reversed his car into a battery box that was behind the car.   

50.	The defendant does not deny that the plaintiff did not have the children with him on Saturday 13th December 2014.  

51.	In her response to the charge, she deposed in her affidavit (exhibit “D1”) that the children refused to go to their father on the “access period” allowed by the Court order.  

52.	My assessment of her evidence and decision to reject it are based on the reasons outlined at [26] to [32] (supra).

53.	I add that if it is true that the children were still sleeping by the time the plaintiff arrived, it is not a defence to the charge because she was bound by the order to have them awake, prepared and ready for their father to pick them up that morning.  

54.	For those reasons, I find that the defendant’s assertions that the children were sick and further, still asleep that morning unconvincing and reject them.  

55.	I further find that there was no reason for the defendant to refuse the plaintiff access to the children on Saturday 13th December 2014.

56.	I repeat the observations and reasons given at [35] to [44] (supra).  

57.	I add that the defendant did not produce evidence from the security guards to refute the assertions by the plaintiff.  They remain uncontroverted.  I find she breached the order of 17th November 2014.

58.	I accept the submission put forward on behalf of the plaintiff that her actions were intended to or calculated or interfered and obstructed the fair or due administration of justice and a guilty verdict is returned as charged. Andrew Kwimberi (supra) and Sir Toami Kulunga (supa).

Breach of Court Order of 19th February 2015 

59.	At paragraphs 4.19 to 4.24 of the statement of charge, it is pleaded that after the consent order was entered allowing the plaintiff weekend access to the children, it was until July 2015 when the defendant had access to the plaintiff.

60.	The plaintiff sent numerous text messages and electronic messages to the defendant to allow access but she refused. She filed an application to vary the consent order but on 9th December 2015 the Court refused it.  The defendant recommenced allowing the plaintiff access to the children.

61.	The defendant does not dispute that the National Court refused her application to vary the consent order.  The judgment may be found in Stuart Conway v. Charlene Samuel (2015) N6133.  

62.	The difficulty I have with the pleadings which form the basis of the charge is that, the charge is very broad and general.  It does not identify the approved access time by the Court and which one of them the defendant refused access to the children.  

63.	And while the Court had refused the defendant’s application to vary the consent order which forms the basis of the charge in this case, contempt is a separate matter and the details of the charge or charges must be adequately pleaded to assist the defendant and the Court identify which charge or charges with precision.

64.	Moreover, it is not the function of the Court to shuffle through the pleadings to work out the details of the charge or charges.  That is the duty of the party who alleges.
  
65.	Pleadings which fail to meet these requirements and are inadequate will amount to an abuse of process and will be dismissed.  I find the allegations of fact pleaded at paragraphs 4.19 to 4.24 of the statement of charge forming the charge or charges are an abuse of process and are struck out.  It follows it is not necessary to consider the charge or charges under this part.  

Complaint to Welfare

66.	In his affidavit (exhibit “P3”), the plaintiff deposed that from Sunday 18th September 2016 he was not permitted by the defendant to have the children for overnight access.  This was due to a decree made by the National Child and Family Welfare Services (Child Welfare) acting on the complaint of the defendant.

67.	To cut the long story short, after the decision of the Court on 9th December 2015 the defendant wrote to the Director Child Welfare Mr Simon Yanis in September and November 2016 requesting assistance to prevent the plaintiff from having access to the children on allegations of assault and abuse of the children.
68.	The plaintiff received a Child Welfare order stopping access to the children.  He eventually attended with his lawyer and met with Mr Yanis and after one more meeting and numerous representation by letters from his lawyers to Mr Yanis over a month, Mr Yanis withdrew the Child Welfare order.

69.	The plaintiff referred to one of the letters of the defendant written to Mr Yanis which he submitted was contemptuous the Court decision of 9th December 2015.  This letter is the one dated 21st November 2016 which reads in part: 
“Makail J was not swayed by the arguments and accordingly did not award the protection despite the evidence of harm to both children.
I felt the decision was rushed due to the holiday period and possibly because the judge and my ex husband’s lawyer, Simon Nutley, have worked together”.

70.	The defendant neither denies writing this letter nor its existence. The plaintiff submitted that acts of publication to Child Welfare particular, the letter of 21st November 2016 were acts done calculated to bring the Court into disrepute, to lower the judge’s and Court’s authority, to interfere with the due administration of justice and amounts to contempt, known as contempt including contempt scandalising the Court.

71.	Let me say this to remind parties of their obligations to the Court and their marital conflict.  They created the marital conflict and it spiled over to their children – access and custody now becomes a priority all in the name of love for the children and may one of the parents who is found to be the better person capable of raising and caring for them be granted his or her wish.
 
72.	But the Court has and had nothing to do with the breakdown in the marriage and should not be dragged into it.  As was pointed out earlier at [39] (supra), the Court is the “mediator” of the dispute and made orders to assist and encourage parties to promote peace and a conducive living environment for the children to be raised in and at the same time allowing both parents access to them.

 73.	Both parents must appreciate the Court’s role in these difficult times and if they have not or refuse to appreciate it, they will soon know.  The defendant as the subject of the contempt charge had exercised her right to seek variation or stay of the consent order. 
 
74.	It was based on allegations of cruelty, neglect and abuse of the children while in the care of the plaintiff during access periods.  The application was refused by the Court on 9th December 2015.  The decision has been published and parties can be referred to the full reasons in Stuart Conway v. Charlene Samuel (supra).  Such decision cannot be viewed as a “rushed decision” as claimed by the defendant.

75.	In coming to that decision, the Court held that the evidence was vague, speculative and hearsay.  This is what the Court said in relation to the evidence produced by the defendant at [13] to [12] (sic) [14] of the judgment: 

“[13]	………I have read carefully the affidavits of the Defendant including the statutory declarations of witnesses and the first point to make is that the evidence in relation to the Plaintiff womanising and taking prostitutes and under-aged girls to his apartment, and partying, and having sex with them is vague and lacking in substance.  There are no dates and times stated when these activities were alleged to have taken place.

[12] (sic)	Number of girls involved is also missing and further, the person who claimed to have seen the Plaintiff, except the barman at the Yacht Club.  It would seem from the evidence of these witnesses that these activities were frequent.  I am referring to the evidence of the security guard at Weigh Inn Motel, barman at the Royal Papua Yacht Club and security guard at the Plaintiff’s compound.  However apart from the lack of specifics, at best, the evidence is speculative and in the worst case, hearsay”.

76.	The Court will be swayed and protection order will be issued or access will be withdrawn if the evidence proved the allegations.  It is a Court of law and credible and admissible evidence must be presented before judgment can be entered in favour of the party who alleges.

77.	The defendant had lawyers acting for her and should have sought the assistance of the Child Welfare to investigate the allegations of abuse and neglect by the plaintiff and presented to Court to support the application at that time.  She did not.  After the decision of the Court and not satisfied, instead of appealing the decision to the Supreme Court, she goes to the Child Welfare.  She cannot have it the other way around.

78.	As to her claim that the judge and the plaintiff’s lawyers are former work colleagues suggesting that the judge favoured the plaintiff and gave judgment to him, let me say this, the Court will come to a standstill if judges stand down just because the lawyer appearing before them is a former work colleague.  
79.	The irony is it is inevitable that judges have former work colleagues (lawyers) or school mates appear before them.  Unless there are real personal association or business interests between the judge and lawyer or school mate, a judge should not recues or step down from a case just because the judge and lawyer were once work colleagues or school mates.  

80.	If the defendant had any issue with that, it was open to her at that time to apply to the Judge to recues himself.  She did not, instead, she goes to the Child Welfare and complains about it. 

81.	In so doing, I agree with the plaintiff’s submissions that the defendant’s series of conduct including publication of the letter of 21st November 2016 were calculated to bring the Court into disrepute, to lower the judge’s and Court’s authority, to interfere with the due administration of justice and amounted to contempt, known as contempt including contempt scandalising the Court and a guilty verdict is returned as charged.

Malaysian Property

82.	Paragraph 16 of the consent order is expressed in these terms:

“Insofar as the jointly owned Malaysian property is concerned, it be sold and the parties share the net proceeds of sale in proportion to the financial contribution of that party.”	

83.	In his affidavit (exhibit “P7”) the plaintiff deposed that he paid at least half the contribution on the Malaysian property.  He produced bundles of various emails to the defendant and her mother Grace Harris setting out payments and contributions to purchase of the Malaysian property.

84.	The property was sold and the net proceeds of sale is RM143,254.01 or equivalent of K115,762.00. He produced a letter from the lawyers in Malaysia dated 19th September 2016 to confirm the sale and payment of the proceeds of sale: see annexure “A” to affidavit of plaintiff (exhibit “P7”).  

85.	The plaintiff submits that as he had contributed to half of the purchase price, he is entitled to half of the proceeds of sale.

86.	The defendant does not deny the sale of the Malaysian property and the sum earned from the sale.  It appears she did not offer half of the proceeds of sale to the plaintiff as per the consent order but less, around K40,000.00.

87.	An equal share or apportionment of the proceeds of sale of K115,762.00 gives a sum of K57,881.00.

88.	She also says that the subject property is also the subject of a matrimonial proceeding MC No 6 of 2018 for dissolution of marriage and should be left for the parties to deal with in that proceeding.

89.	While the consent order does not prescribe a time limit for the proceeds of sale of the property to be disbursed to the parties in particular, the plaintiff, inherent in it is the duty to comply and when there is undue delay, there is a strong case for breach against the defaulting party.

90.	The order, in my view, clearly expresses the intention of the parties when they signed the consent order.   In this case, the proceeds of sale were received by the defendant’s mother on or about September 2016.  After more than one year to date of filing the motion for contempt, the plaintiff has yet to receive his share, though there appears to be some disagreement to the amount.  There is no explanation for the sum offered which was less than K57,881.00.

91.	I am satisfied that the defendant breached the order in relation to the payment of the plaintiff’s share of the proceeds of sale of the Malaysian property.  A guilty verdict is, accordingly, returned.

Breach of Court Order of 19th February 2015 

92	The onus of proof is on the defendant to prove each and every charge against the plaintiff by credible and admissible evidence and not mere assertions or guess work.

93.	This is because contempt is a serious matter.  It can result in a guilty party ending up in jail.  Thus, the evidence must be clear and specific to identify the act or conduct which the defendant say constitutes a breach of the Court order.

94.	A party who seeks to rely on an affidavit must be able to produce an affidavit deposed by a deponent with clarity and details of the act or conduct complained of as constituting a breach of a Court order, date, and time and location of the alleged breach.

95.	It is not the function of the Court to shuffle through the affidavit and annexures to work out the details of the contemptuous act or conduct.  That is the duty of the party who alleges.

96.	The statement by the defendant at paragraph 12 of her affidavit (exhibit “D1”) that she kept track of the plaintiff’s access from 2015 to 2018 is vague and lacks details as to the failure by the plaintiff to collect the children on the dates and times allowed by the Court pursuant to the Court order of 19th February 2015.

97.	Even a copy of the excel spreadsheet annexed and marked with letter “C” to her affidavit is unhelpful because it does not identify and correlate the breaches to each of the charges in the statement of charge.  It is totally confusing and vague.

98.	Moreover, a copy of what appeared to be diary notes of events marked as annexure “D” to the affidavit of the defendant (exhibit “D1”) is unhelpful and did not make my task any easier.

99.	Doing the best as I can, I deduce the following information from these two documents (excel spreadsheet and dairy notes): 

•	Charge 1 - 1st to 8th April 2015, the plaintiff had the children longer than the defendant

The only statement by the defendant is that: 

“School holidays commence on the 1st of April 2015 and Stuart has them for the first week of the month.  He picked them up on the 1st of April 2015 and had them until 8 am on the 8th of April 2015”.

What is the act or conduct that is said to be in breach of the order?  Is it that the plaintiff was not allowed to keep the children during this period or did he keep them over the allowed time?  This has not been explained or clearly expressed by the defendant.

•	Charge 2 - 8th to 10th May 2015, it was the plaintiff’s weekend but he failed to collect the children

The only statement by the defendant is that: 

“SECOND WEEKEND		Friday 8 May 2015 – Sunday 10 May 2015: Kids with me

Sent Stuart a text at 5:25 pm on 8th June (sic) telling him to call my phone to speak to kids if he can’t get through on theirs…………”.

The defendant did not say if Friday 8th May to Sunday 10th May 2015 is a weekend period for the plaintiff to collect the children and he did not.

•	Charge 3 - 3rd weekend in August 2015, the plaintiff failed to collect the children

The only statement by the defendant is that: 
 
“THIRD WEEKEND Friday 14 August 2015 – Sunday 16 August 2015: Kids with Stuart 

 Stuart advises he can’t take kids as he has stock take”.

The defendant did not say if Friday 14th August to Sunday 16th August 2015 is a weekend period for the plaintiff to collect the children and he did not.

•	Charge 4 - December 2015, the plaintiff dropped off the children at 4:00 pm on 24th December and collected them at 9:00 am on 26th December

The defendant stated this: 

“Stuart drops off the kids off at 4pm on the 24th of December 2015 and tries to pick up the children at 9am.  I tell him to come back midday as he stuffed up the agreed time which would allow each of us equal time with the children over the Christmas period.

The children were also noted to have scratch marks and other injuries which necessitated further enquiry into what transpired whilst under their father’s care.

FOURTH WEEKEND	Friday 25 December 2015 – Sunday 27 December 2015: Kids with Stuart 

Stuart picks up kids on the 26th of December around midday”.

The defendant did not say if Friday 25th December to Sunday 27th December 2015 is not an approved weekend period for the plaintiff to collect the children and he did.
•	Charge 5 - 29th to 31st January 2016, the plaintiff failed to collect the children

The only statement by the defendant is that:

“FIFTH WEEKEND	Friday 29 January 2016 – Sunday 31 January 2016”.

The defendant did not state that this weekend period was for the plaintiff to collect the children and he failed.

•	Charge 6 - 26th to 28th February 2016, the plaintiff forgot to collect the children

The only statement by the defendant is that:

FOURTH WEEKEND	Friday 26 February 2016 – Sunday 28 February 2016: Kids with me”.

The defendant did not state that this weekend period was for the plaintiff to collect the children and he failed.

•	Charge 7 - 22nd to 24th July 2016, the plaintiff failed to collect the children

The only statement by the defendant is that:

FOURTH WEEKEND	Friday 22 July 2016 – Sunday 24 July 2016: Kids with me 

Stuart was advised of the following month’s access period dates on the 22nd of July, around 4:45 pm, and again on the 25th July 2016, around 5pm”.

The defendant did not state that this weekend period was for the plaintiff to collect the children and he failed.

•	Charge 8 - 5th to 7th August 2016, the plaintiff failed to collect the children

The only statement by the defendant is that:

“FIRST WEEKEND		Friday 5 August 2016 – Sunday 7 August 2016: Kids with me”.

The defendant did not state that this weekend period was for the plaintiff to collect the children and he failed.

•	Charge 9 - 19th to 21st August 2016, the plaintiff failed to collect the children

The only statement by the defendant is that:

“THIRD WEEKEND		Friday 19 August 2016 – Sunday 21 August 2016: Kids with Stuart”.

The defendant did not state that this weekend period was not for the plaintiff to collect the children and he did.

•	Charge 10 - 24th to 30th September 2016, the plaintiff changed the holiday access so he had the first half of the school holidays

The defendant stated this:

“FOURTH WEEKEND		Friday 23 September 2016 – Sunday 25 September 2016: Kids with Stuart

As Stuart failed to pick up kids the first two weekends, I told him to take the third weekend.  He then changed the school holidays back again without consulting me.  He keeps going back and forth”.

This is very confusing and I cannot follow what the defendant is saying.  Again, she did not state that this weekend period was not for the plaintiff to collect the children and he did.
•	Charge 11 - February and March 2017, the children refused to go with the plaintiff

The defendant states that:

“3 FEBRUARY 2017 – 5 FEBRUARY 2017 Kids with Stuart”.

The defendant gives an account of what occurred on an unidentified date about the plaintiff turning up unannounced to collect the children and their unpreparedness and children’s reluctance to go with the plaintiff.  But she did not state that this weekend period was not for the plaintiff to collect the children and he did.

“3 MACRH 2017 – 5 MARCH 2017 Kids with Stuart”.

The defendant gives an account of what occurred on an unidentified date about the plaintiff arriving early to collect the children and their unpreparedness and children’s reluctance to go with the plaintiff.  But she did not state that this weekend period was not for the plaintiff to collect the children and he did.

“10 MACRH 2017 – 12 MARCH 2017 Kids with Stuart”.

The defendant gives an account of what occurred on an unidentified date of the son telling another that he wanted to punch the plaintiff for scratching him and children’s reluctance to go with the plaintiff.  But she did not state that this weekend period was not for the plaintiff to collect the children and he did.

“17 MACRH 2017 – 19 MARCH 2017 Kids with Stuart”.

The defendant gives an account of what occurred on an unidentified date about the plaintiff turning up at the house to collect the children and their unpreparedness and children’s reluctance to go with the plaintiff.  But she did not state that this weekend period was not for the plaintiff to collect the children and he did.

•	Charge 12 - 21st to 23rd April 2017, the plaintiff failed to collect the children

No statement by the defendant.

•	Charge 13 - 12th to 14th May 2017, the children refused to go with the plaintiff when he turned up to collect them

No statement by the defendant.

•	Charge 14 - 9th to 11th June 2017, the plaintiff failed to collect the children

The defendant stated this:

“FOURTH WEEKEND		Friday 23 September 2016 – Sunday 25 September 2016: Kids with Stuart

As Stuart failed to pick up kids the first two weekends, I told him to take the third weekend.  He then changed the school holidays back again without consulting me.  He keeps going back and forth”.

This is very confusing and I cannot follow what the defendant is saying.  Again, she did not state that this weekend period was not for the plaintiff to collect the children and he did.

•	Charge 15 - 30th June 2017, the children refused to go with the plaintiff

The defendant stated this:

“17 JUNE 2017 – 3 JULY 2017 	Kids with Stuart – mid holiday Stuart came to pick up the kids but like every other time, both kids refused to go with him.

Stuart tried to coax them over but both said that they wanted to stay with mummy.

Stuart told them that they could see me later after his time with them but they weren’t but they weren’t interested in listening to what he had to say.

30 JUNE 2017 	Kids with Stuart – birthday
			Kids refused to go with Stuart despite all his efforts”.

This is very confusing and I cannot follow what the defendant is saying.  Again, she did not state that this weekend period was not for the plaintiff to collect the children and he did.

•	Charge 16 - July 2017, the plaintiff collected the children on the defendant’s allocated weekend along with his weekend

The defendant states this:

“21 JULY 2017 – 23 JULY 2017 	 Kids with Stuart”.

The defendant gives an account of what occurred on an unidentified date about the plaintiff tuning up at the house to collect the children and children’s refusal to go with the plaintiff.  But she did not state that this weekend period was not for the plaintiff to collect the children and he did.

“28 JULY 2017 – 30 JULY 2017 	 Kids with Stuart”.

The defendant gives an account of what occurred on an unidentified date about the plaintiff tuning up at the house to collect the children and children’s refusal to go with the plaintiff.  But she did not state that this weekend period was not for the plaintiff to collect the children and he did.

•	Charge 17 - 18th to 20th August 2017, the plaintiff failed to collect the children

No statement by the defendant.

•	Charge 18 - 13th to 15th October 2017, the plaintiff failed to collect the children

No statement by the defendant.
•	Charge 19 - 23rd to 25th March 2018, the plaintiff failed to collect the children on time and tried to switch his holiday time with them with the defendant

The only statement by the defendant is that:

“23 – 25 March 2018: Kids with Stuart”.

The defendant did not state that this weekend period was not for the plaintiff to collect the children and he did.

100.	Overall, the evidence of the defendant is flimsy and does not stack-up.  It is unsafe to convict the plaintiff on evidence that is not only vague and confusing but lacking in material aspect.   

101.	The evidence does not establish the requisite intention by the plaintiff to flout or interfere with the operation of the Court order but efforts made by the plaintiff to comply with it in gaining access to the children.  

102.	In almost every time the plaintiff attended to collect the children or calls, or sends a mobile phone text message, or email to make arrangements to collect the children, it is met with resistance or excuses like the children are not ready or do not wish to go with the plaintiff.  

103.	In instances where he has kept the children over the approved period (weekend), there is absence of the element of intention to breach the order.  In another case, the change or swopping of times for access to the children is no more than for convenience reasons than a deliberate act by the plaintiff to disobey the Court order.

104.	As I observed earlier, Court orders are intended to bring a solution, if not a lasting solution for the parties and parties must take ownership of them to make them happen in real time.  If not, they become worthless piece of documents for the parties.
105.	The conduct of the defendant demonstrates that she has not been willing to take ownership of the order and assist herself and the plaintiff have access to the children while they are in her custody.

106.	For the foregoing reasons, the defendant has failed to establish each and every charge on the requisite standard of proof.  Each charge is dismissed and a not guilty verdict is returned for each charge.

Verdict

1.	The charge against the defendant for refusing access to the plaintiff to collect the children on Saturday 15th November 2014 is upheld – Guilty.
 
2.	The charge against the defendant for refusing access to the plaintiff to collect the children on Sunday 14th December 2014 is upheld – Guilty. 

3.	The charge against the defendant for refusing access to the plaintiff to collect the children from July 2015 onwards is dismissed as being an abuse of process. 

4.	The charge against the defendant for scandalising the Court is upheld – Guilty. 

5.	The charge against the defendant for failing to pay the plaintiff’s half share of the proceeds of sale of the Malaysian property is upheld – Guilty.

6.	The charge against the plaintiff for having the children longer than the defendant from 1st to 8th April 2015 is dismissed – Not Guilty. 

7.	The charge against the plaintiff for failing to collect the children between 8th and 10th May 2015 is dismissed – Not Guilty. 

8.	The charge against the plaintiff for failing to collect the children on 3rd week in August 2015 is dismissed – Not Guilty. 

9.	The charge against the plaintiff for dropping off the children at 4:00 pm on 24th December and collected them at 9:00 am on 26th December 2015 – Not Guilty. 

10.	The charge against the plaintiff for failing to collect the children between 29th and 31st January 2016 is dismissed – Not Guilty. 

11.	The charge against the plaintiff for forgetting to collect the children between 26th and 28th February 2016 is dismissed – Not Guilty. 

12.	The charge against the plaintiff for failing to collect the children between 22nd and 24th July 2016 is dismissed – Not Guilty. 

13.	The charge against the plaintiff for failing to collect the children between 5th and 7th August 2016 is dismissed – Not Guilty. 

14.	The charge against the plaintiff for failing to collect the children between 19th and 21st August 2016 is dismissed – Not Guilty. 

15.	The charge against the plaintiff for changing the holiday access so he had the first half of the school holidays to the children between 24th and 30th September 2016 is dismissed – Not Guilty. 

16.	The charge against the plaintiff for the children refusing to go with him between February and March 2017 is dismissed – Not Guilty. 

17.	The charge against the plaintiff for failing to collect the children between 21st and 23rd April 2017 is dismissed – Not Guilty. 

18.	The charge against the plaintiff for the children refusing to go with him between 12th and 14th May 2017 is dismissed – Not Guilty. 

19.	The charge against the plaintiff for failing to collect the children between 9th and 11th June 2017 is dismissed – Not Guilty. 

20.	The charge against the plaintiff for the children refusing to go with him on 30th June 2017 is dismissed – Not Guilty.

21.	The charge against the plaintiff for collecting the children on the defendant’s allocated weekend along with his weekend in July 2017 is dismissed – Not Guilty. 

22.	The charge against the plaintiff for failing to collect the children between 18th and 20th August 2017 is dismissed – Not Guilty. 

23.	The charge against the plaintiff for failing to collect the children between 13th and 15th October 2017 is dismissed – Not Guilty. 

24.	The charge against the plaintiff for failing to collect the children on time and tried to switch his holiday time with them with the defendant between 23rd and 25th March 2018 is dismissed – Not Guilty. 

Verdict accordingly.
_______________________________________________________________
Fiocco & Nutley Lawyers:	Lawyers for Plaintiff
Simpson Lawyers:			Lawyers for Defendant