A and A - [2002] FMCAfam 132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

A & A

[2002] FMCA fam 132

FAMILY LAW – Contravention Application – orders by consent for contact contravened – relevance of delay between forwarding by mail application to vary orders contravened and issuing of application.

Family Law Act 1975 Part VII Division 13A
Family Law Rules Order 35 Rule 6

Applicant:

G H A

Respondent:

J E A

File No:

ZM 3050 of 2002

Delivered on:

7 May 2002

Delivered at:

Melbourne

Hearing Date:

7 May 2002

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr Testart

Solicitors for the Applicant:

Jeremy Harper & Associates

Counsel for the Respondent:

Ms Stewart

Solicitors for the Respondent:

Hale and Wakeling

ORDERS

The Application for times to be abridged in relation to the Mother’s Application filed 1 May 2002 be refused.
The orders made by the Court by consent on 26 March 2002 being the Minutes of Proposed Orders marked Exhibit A be varied as follows:
Order 1(a) delete “10 April” insert “10 May”;
Order 1(b) delete “6 May” insert “7 June”;
Order 1(c) delete “8 July” insert “9 August”;
Order (d) delete “7 October” insert “8 November”;
Order 2 delete “28 May” insert “21 May”.
The hearing date on the Mother’s Application filed 1 May 2002 be altered from 28 May 2002 to 21 May 2002.
Pursuant to s62F(2) of the Family Law Act the parties attend a conference with a family and children counsellor or welfare officer of an organisation nominated by the Primary Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia to discuss the care, welfare and development of the child J M A born 16 December 2001 and to try and resolve differences, if any, in relation to that issue.
Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM 3050 of 2002

G H A

Applicant

And

J E A

Respondent

REASONS FOR JUDGMENT

This is an application by G H A (the father) pursuant to an application filed on 22 April 2002. It is an application relating to contravention of a child contact order. The orders which are the subject of the application were orders made by this court on 26th March 2002. On that occasion the father was represented by legal representatives and indeed on that occasion so too was J E A (the mother). The orders made by the court on that occasion were orders made in accordance with minutes of proposed orders which were in fact consent orders on an interim basis relating to the issue of contact with the child of the relationship, J M A (the child) born 16 December 2001.
Before the court on that occasion there was an application which had been filed by the mother in relation to the issue of the child and in particular in relation to matters concerning both the residency and, by inference, contact with the child. Significantly, there were other orders sought in relation to the child's name. So that it is perfectly clear, what occurred on 26 March 2002 is that both counsel had indicated that orders had been agreed by consent. Those orders were marked exhibit A and were placed on the court file. The order of the court on that occasion was that otherwise all extant applications be adjourned to 28 May 2002.
In fact, the minutes of proposed orders which were entered into by the parties and which became `exhibit A’ referred to paragraphs 6 and 7 of what is described as the father's cross-application be adjourned until

28 May 2002. The document which is being referred to as a cross-application would appear to be a document entitled “Response to Initiating Application” filed by the father on 25 March 2002. The orders which are the orders which I have referred to as being orders 6 and 7 in fact related to the following. Order 6 provides that the registrar of births, deaths and marriages register J's name as J A.

Order 7 provides that the mother be restrained from using any other name for J other than J A.
It should be noted that in the minutes of orders by consent it would appear that the parties, at least on that occasion, had reached agreement in relation to contact with the child. That contact was to be from 10 am to 10.30 am each Monday, Wednesday and Friday commencing

10 April 2002 for one month; from 10 am to 11 am each Monday, Wednesday and Friday commencing 6 May 2002 for two months, and from 10 am till 12 noon each Monday, Wednesday and Friday commencing 8 July 2002 for three months. Then from 10 am to 1 pm on Monday and Friday commencing 7 October 2002 for three months.
It is clear to me that those orders which were in the document exhibit A which was made the subject of orders of the court at least involved a proposed development of regular contact with an infant child in circumstances where it is common ground that the father had not had any contact at all since the birth of the child, that is, since 16 December 2001. It is also equally clear to me that the material then before the court raised concerns by the mother, and rebuttal in a sense, of those concerns as to contact by the father.
What happened since 26 March 2002 is a matter of some concern to this court in the sense that it would appear that there has not been any compliance with those orders made by consent. Instead, what occurred was, and I accept, that on a number of occasions, in an attempt to ensure that contact occurred in accordance with those orders, the father attended and contact did not occur on 10 April, 12 April, 15 April, 17 April, 19 April. It seems to me to be common ground that on each and every one of those occasions contact did not occur. Before this court today it has been argued that in the circumstances for and on behalf of the father there has been a clear contravention of the child order.
The remedy sought is that essentially that I should make an order now directing that the contact should commence from tomorrow, that is, 8 May 2002, and continue thereafter in a manner consistent with the orders which are referred to as the consent orders which became exhibit A before the court on 26 March 2002. It is relevant to note that both parties gave evidence in this matter, and it is particularly relevant that I accepted into evidence for the purpose of this application an affidavit sworn by the mother on 9 April 2002 which I accept was forwarded in an unsworn version, or at least unsealed version, to the father's solicitors on or around 10 April 2002.
It is also significant to note that an application has been filed with the court returnable on 28 May 2002 said to be filed on 1 May 2002 together with the affidavit to which I have referred. Those documents were in fact filed under cover of letter from solicitors then acting for and on behalf of the mother on 11 April 2002. That letter is date stamped by the court 12 April 2002. That application seeks orders which effectively would suspend, or at least substitute in place of the orders made on 26 March 2002, orders in relation to contact which would result in contact for a period of one half hour at a time between 9 am and 10.30 am on Sundays.
It is a matter of concern and regret to this court that a letter with that application together with the supporting affidavit was received on 12 April 2002 and yet the application that I now have on the file does not appear to be filed until 1 May 2002. To put that into context, it is clear that at least in this application before the court this day that the covering letter dated 11 April 2002 was forwarded the day after the first contact was to take place pursuant to the consent orders, and was received at least by the court on the day of the second contact which was to occur on 12 April 2002.
One can only speculate that in circumstances of this kind that it would be far more desirable for the application to have been filed promptly and that a sealed copy be served upon the solicitors for the father at an earlier time than the time which has occurred on this occasion, namely some time after 1 May 2002 and clearly after the application for contravention had been filed on 22 April 2002. I say that because in circumstances of this kind I view very seriously an application being made for contravention of a child order, and take particular note of the provisions of the Family Law Act set out in Division 13A of Part VII which apply to an application of this kind.
I should also mention for the sake of completeness that when the court made the orders on 26 March 2002 exhibit A, which formed the basis of those orders, also provided for liberty to apply so that in summary the situation is this: on 26 March 2002 and I so find, both parties were legally represented. Minutes of consent orders were prepared. Those minutes were the subject of consent orders by the court. They included the orders for contact to which I have referred and included provision for liberty to apply. What happened thereafter is a matter of some concern to the court.
Evidence has been given by the mother that on each and every one of the days when contact was to occur, which is the subject of the contravention application, the contact did not occur for various reasons. I should, however, note that by letter dated 28 March 2002, just two days after the consent orders were made by the court, a letter was then forwarded by the then solicitors acting for and on behalf of the mother to solicitors acting for the father which indicate, and I quote in part:
“Please note that our client is not able to comply with the orders as they now stand and will not have J available for contact at the time set out.”
The letter further states:
“Please note that despite consenting to the orders, our client is not satisfied that they are in the best interests of the child. Unless a more suitable arrangement can be made between the parties, our client will apply, pursuant to the liberty provided in the order, for more appropriate interim orders.”
It is common ground that no application pursuant to the liberty to apply provision has been made. Instead the application has been forwarded to the court by the letter dated 11 April 2002 to which I have referred. It is perhaps regrettable that the quicker and more appropriate process of exercising rights under liberty to apply did not occur. Evidence was given by the mother that she found that although the orders were made by consent, that she was under significant pressure by counsel acting then on her behalf to enter into the orders. Other references have been made to those pressures on the day and the circumstances that the mother found herself in when agreeing to the those to which I have referred.
In addition, the mother has indicated that in relation to the dates to which reference has been made in the contravention application that there were various other commitments. She has indicated that in addition to that the half-hour contact three times a week was a matter which could not be accommodated due to her schedule. In her evidence she stated that she has her self-employed work commitments which may occupy on some occasion 15 minutes per day, but up to two hours of client contact per day, and in addition has other obligations to two nine year old children who are children of another relationship, together with the usual requirements to care for the children, herself, and of course the child who is the subject of these proceedings.
In all the circumstances I make findings, having heard the evidence however, that I am satisfied in the present case that in the absence of any corroborative evidence and in the absence of evidence being called by those legal representatives then representing the mother, that the orders made by consent were indeed orders made in circumstances where the consent could not be said to be consent other than genuine consent. I am satisfied that on the material before me that a real consent was provided to those orders. I am further satisfied that for reasons advanced by the mother that within a couple of days of those orders being made by the court she had decided - and this is consistent with the correspondence forwarded on her behalf - that she was not able to comply with the orders and had decided that they were not in the best interests of the child. I reject her evidence that she was unable to otherwise accommodate the contact on the day scheduled and on the days which are the subject of the contravention application.
It is my view that in the circumstances of this case there has been in a sense a second visit by the mother to the orders made and further consideration given in relation to those orders, and upon further considering the orders, she has simply changed her mind and decided that those orders were no longer in the best interests of the child. In circumstances of that kind, in my view, the more appropriate remedy is to seek to vary the order as a matter of urgency and to do so pursuant to the liberty to apply provisions, or at the very least, to ensure that an urgent application is brought rather than simple non-compliance with the orders.
It is my view in the present case that in the circumstance of this application that there is clear evidence therefore upon which I can rely applying the appropriate standard of proof that there has indeed been a contravention of the orders and the particulars of the contravention are made out as indicated in the application. Accordingly, it is my view that the contravention has been proved.
The next issue to consider is what orders, if any, are made as a result of the contravention. Having regard to the age of the child, the circumstances of the mother, the chronology of events and the fact that at the very least an application was attempted to be issued within what I would describe as a reasonable time which may have at least avoided the further process whereby the father attended for contact on those days after 12 April 2002 and was unable to effect contact, I agree with I think the submissions made for and on behalf of both counsel that this contravention is very much at the lower end of the scale.
The real question, it seems to me, is that in the circumstances I am confronted with a situation of what orders I should make. On the one hand, it is said on behalf of the mother that I should suspend the orders made by consent on 26 March, in lieu there of make orders, it is now said, for contact for a period of one and a half hours on Sundays, and the matter should otherwise proceed to be determined in the duty list on 28 May 2002. On the other hand, it is submitted for and on behalf of the father that the order that should be made is that I should direct that contact should commence tomorrow, that is, Wednesday, 8 May 2002, and that the contact should occur thereafter in the manner previously agreed to in the minutes of proposed orders marked exhibit A which were before the court on 26 March 2002.
Having regard to my findings that the consent orders were made in a genuine consent manner and that I am not prepared to make a finding of those orders on the basis of the material before me at present were orders made in the absence of genuine consent or under any duress, it seems to me inappropriate in the circumstance of this case to then effectively usurp the role of another court which may decide to vary those orders on further material then available to the court at a later stage.
Given that I have found that those orders were made as a consequence of genuine consent by the parties, it is my view that in all the circumstances the appropriate orders that I should make are a direction that the contact commence on Friday 10 am till 10.30 am and thereafter follow a graduated program in accordance with the orders made by the court on 26 March 2002.
I will make further orders as follows:
(1)The Application for times to be abridged in relation to the Mother’s Application filed 1 May 2002 be refused.
(2)The orders made by the Court by consent on 26 March 2002 being the Minutes of Proposed Orders marked Exhibit A be varied as follows:
Order 1(a) delete “10 April” insert “10 May”;
Order 1(b) delete “6 May” insert “7 June”;
Order 1(c) delete “8 July” insert “9 August”;
Order 1(d) delete “7 October” insert “8 November”;
Order 2 delete “28 May” insert “21 May”.
(3)The hearing date on the Mother’s Application filed 1 May 2002 be altered from 28 May 2002 to 21 May 2002.
(4)Pursuant to s62F(2) of the Family Law Act the parties attend a conference with a family and children counsellor or welfare officer of an organisation nominated by the Primary Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia to discuss the care, welfare and development of the child J M A born 16 December 2001 and to try and resolve differences, if any, in relation to that issue.
(5)Costs reserved.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 7 May 2002