Anderson and Taybor

[2017] FamCA 698

FAMILY COURT OF AUSTRALIA

ANDERSON & TAYBOR [2017] FamCA 698

FAMILY LAW – ORDERS – Contravention – Where allegation that the child was not made available for time ordered – Where order alleged to have been breached does not state when child is to be made available – Where evidence does not demonstrate a  breach of the court order – Where Court not satisfied there is a prima facie case on mother’s application –– Where Application for Contravention dismissed

Family Law Act 1975 (Cth) ss 4, 70NAE, 70NEA, 70NEB

APPLICANT: Ms Anderson

RESPONDENT: Mr Taybor

FILE NUMBER: PAC 5282 of 2008

DATE DELIVERED: 1 September 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 1 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Breeze

SOLICITOR FOR THE APPLICANT: Lovemore Lawyers

RESPONDENT – SELF-REPRESENTED LITIGANT: Mr Taybor

Orders Made on 1 September 2017

1. The application for contravention filed 15 May 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anderson & Taybor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5282  of 2008

Ms Anderson

Applicant

And

Mr Taybor

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The present application before the Court is an Amended Application – Contravention filed by the Applicant mother on 30 June 2017.  The application seeks to have the father dealt with in relation to five alleged contraventions of orders made on 4 September 2009 in this Court, but in particular, order 17 of those orders which provides:

   That as and from the time the child attains the age of 11 years, the mother shall spend unsupervised time with the child each alternate weekend form after school Friday to before school Monday. 

2. It is assumed that the word “form” should be “from”.

3. That’s the order the subject of the mother’s application. 

4. The mother makes five allegations of contravention.  They are:

   (1)That on 21 April 2017 at about 4.00 pm at Suburb R, the Respondent father without reasonable excuse refused to allow the Applicant mother to spend time with the child, S;

   (2)That on 5 May 2017 at about 4.00 pm at Suburb R, the Respondent father without reasonable excuse refused to allow the Applicant mother to spend time with the child, S;

   (3)That on 19 May 2017 at 4.00 pm at Suburb R, the Respondent father without reasonable excuse refused to allow the Applicant mother to spend time with the child, S;

   (4)That on 2 June 2017 at about 4.00 pm at Suburb R, the Respondent father without reasonable excuse refused to allow the Applicant mother to spend time with the child, S;

   (5)That on 16 June 2017 at about 4.00 pm at Suburb R, the Respondent father without reasonable excuse refused to allow the Applicant mother to spend time with the child, S.

5. These are proceedings under s 70NEA of the Family Law Act 1975 (Cth). In summary, the section applies if the Court is satisfied that a person has committed a contravention of a primary order and a person does not prove that he or she had a reasonable excuse for the current contravention and the Court has previously not made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or otherwise adjourned proceedings in respect of a contravention by the person of the primary order.

6. Section 70NEB sets out the powers of the Court in circumstances where a contravention is found proved under s 90EA (less serious contravention).  A primary order is defined in s 4 of the Act to mean “an order under this Act affecting children and includes such order as varied”.  It is clear that the threshold for the Court is to be satisfied that the person, the subject of the application has failed to comply with a court order.  That being the first limb of the contravention application.

7. The second limb, of course, is if the Court is so satisfied to call upon the Respondent to answer the allegation that if appropriate to provide evidence of a reasonable excuse under s 70NAE of the Act. Section 70NAE relevantly sets out the grounds upon which the Court can determine reasonable excuse.  However, returning to the primary issue, it is noted that the court order made on 4 September 2009, and in particular order 17, the subject of the present contravention application, one would say is rather inelegantly framed.  The order is indeterminate in time as to its operation, save for, the order will commence to have effect from the time that the subject child obtain the age of 11 years, being 9 February 2016. 

8. The order then provides that the mother shall spend unsupervised time with the child each alternate weekend from after school Friday to before school Monday.  Inherent in that order seems to be an obligation on the mother to collect the child from school on a Friday and return the child to school on a Monday, although the order does not say such.  It is noted that the mother’s allegations of contravention commence on 21 April 2017 and that each subsequent allegation is a fortnight after the preceding allegation.

9. There is no evidence from the mother as to when the order would provide that alternate weekend time would start or, indeed, what alternate weekend time had been occurring by agreement between the parties subsequent to the commencement of the operation of the order.  However, the Respondent father can only be held responsible for a breach of a court order as to making the child available to the mother at a specified time, not a breach of some agreement or arrangement between them as to what would be the appropriate weekends.

10. Regrettably, there is no evidence to suggest that the order itself, that is, order 17 made in 2009 requires the father to make the child available to the mother on Friday, 21 April 2017 and, hence, on each alternate Friday thereafter, as alleged by her.  In the absence of evidence as to a breach of the court order as it is framed, and it needs amendment, the Court cannot be satisfied that there is a prima facie case established on the mother’s application sufficient to put the allegations to the father and seek from him a response as to reasonable excuse. 

11. The Application for Contravention filed 30 June 2017 is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 September 2017.

Associate: 

Date:  13 September 2017