Apsley & Apsley

[2007] FamCA 273

FAMILY COURT OF AUSTRALIA

APSLEY & APSLEY [2007] FamCA 273

FAMILY LAW - CHILDREN - Child related proceedings

FAMILY LAW - CHILDREN - Orders - Contravention

Family Law Act 1975 (Cth)

APPLICANT: Mr Apsley

RESPONDENT: Mrs Apsley

FILE NUMBER: DGF 4262 of 2000

DATE DELIVERED: 21 March 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 21 March  2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: The applicant father in person

SOLICITOR FOR THE RESPONDENT: Mr Raniga

Orders

1.That charges number 2, and 4 to 11 of the husband’s Application for Contravention filed 21 February 2007 shall be struck out.

2.That charge number 13 of the husband’s Application for Contravention filed 21 February 2007 shall be dismissed as not being established.

3.That charges 1, 3 and 12 of the husband’s Application for Contravention filed 21 February 2007 shall be proven but no punishment shall be imposed.

4.That for the purposes of the husband’s alternate week-end time with the children FW born in June 1996 and A born in August 1997 in accordance with paragraph 4 of the orders of this Court made on 21 November 2002, in each school term his first contact week-end shall be on the second weekend after the school term commences.

5.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 4262  of 2000

Mr Apsley

Applicant

And

Mrs Apsley

Respondent

REASONS FOR JUDGMENT

BACKGROUND

1. The father alleges four breaches of contact orders against the mother.  She is represented but he is not. 

2. The parties married either in November 1998 or 1997.  There is a little bit of uncertainty about that.  In any event, they married, and they ultimately separated.  Again there is uncertainty about the date. 

3. They have two sons.  Their eldest son, FW - called F by his father and W by his mother - which gives me some insight into the sorts of difficulties that the parties have in parenting together - is aged 10½, and young A is aged 9½.  The boys live with their mother and there has been a regular regime of time with their father since orders were made on 21 November 2002 and subsequently amended.  The last relevant amendment for today's purposes is within the order of 8 May 2006.

THE APPLICATION FOR CONTRAVENTION

1. The father filed an application for contravention on 21 February of this year with a supporting affidavit filed on the same day.  The application contained 13 different counts of contravention, and Young J on 8 March 2007 directed the father to reduce that to four counts. 

2. The four counts are as follows.  Count 1 relates to 14 February 2007.  It is alleged that the respondent refused to hand over the children to their father for mid-week contact.  Count 3 alleges that on 9 February 2007 the mother refused to hand over the children for weekend contact with their father.  Count 12 is that on 24 November 2006 the mother refused to hand over Anthony to commence weekend contact with his father - the older boy being away at a school camp, and both children being collected on Sunday, 26 November for some hours.  Finally, Count 13 alleges that on 27 October 2006 the mother refused to hand over the children to commence weekend contact with their father at the proper time, and he says that the contact commenced some 18 hours later. 

3. I have followed the strict procedure set out in rule 21.08 of the Family Law Rules in hearing these proceedings. 

4. The mother denies the allegations in each of the charges.  In relation to 14 February 2007 (Count 1) and 9 February 2007 (Count 3) she says that on each occasion the children refused to go, and she points to a number of surrounding factors, including that they came home unhappily after the long summer break with their father, that A had suffered from bruising on his leg and on his side, and that the elder child, felt that he was bullied by his father.  She also expresses some concern in relation to the feeding regime of A who suffers short gut syndrome and is quite severely disabled and is pump fed overnight so that he gets the nutrients that he needs.

5. In relation to the weekend of 24 November 2006 (Count 12) she also denies that she has breached the order, although she acknowledges that the younger child did not go initially for the weekend.  She says that is because he refused, given that he felt uncomfortable going alone while his big brother was away at camp.  As to 27 October 2006 (Count 13) she also denies that was a breach, saying that it was her weekend with the children and not the father's. 

THE RELEVANT LEGAL PRINCIPLES

1. Contravention provisions are contained in Part VII of the Family Law Act. Section 70NAC deals with the meaning of "contravention" as being where a person is bound by an order and they have intentionally failed to comply with the order or made no reasonable attempt to comply with the order. Section 70NAE(5) deals with what constitutes “a reasonable excuse” for contravening an order that a child spend time with a parent. It says:

   "A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order, to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if: 

   (a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a)."

2. Section 70NAF of the Family Law Act provides that the standard of proof in determining applications for contravention is on the balance of probabilities and that the respondent, if she raises a reasonable excuse, as she has here, must satisfy the court on the balance of probabilities of that reasonable excuse. The Division then goes on to deal with the powers of the court, either if a contravention is proven of if it is not.

THE FINDINGS

1. There is an enormous amount of history here.  That is obvious.  The parents have a great deal to contend with, particularly with the additional burdens and responsibilities of parenthood when it comes to young A and his medical needs.  It seems that both parents have been involved and very concerned about that.  Of course, the major responsibility does sit on the mother’s shoulders because the boys are with her for a large part of the time, but the father also has participated in relation to being involved at the hospital and with the various experts and trying to understand what is required.

2. I am told that the matter is listed for a trial notice listing tomorrow.  I am thankful for the parents, but most particularly for the children, that the case is finally getting closer to a hearing, so that they can get everything resolved.  What was obvious to me today was that there is an enormous amount that they both want to say, there is an enormous amount that they want to tell the court, and a contravention application is not necessarily the best avenue for that because the evidence is necessarily limited. 

3. I propose dealing with the fourth count first.  So far as 27 October is concerned, the mother says that it was not the father's weekend.  The father says that it was.  They have different interpretations of the current orders, as to when term-time contact should resume after school holidays.  It strikes me that either interpretation is reasonable.  In some instances it does work the way that the father has said.  In some instances it works the way that the mother believes.  The father says that he is right because it has always worked the way he said.  The mother disagrees with that.  The father says you can see that he is right because the mother allowed him to see the children the following day.  The mother says, "I did allow him to see the children the following day but it was for an entirely different reason relating to his work." 

4. I cannot make head or tail of that particular count to find it proven.  I will amend the existing orders so that we do clarify what is to happen with the sequence around school holidays. 

5. I see the other three counts in quite a different category.  Effectively, the mother agrees that the children were not handed over on those occasions.  So she relies on having a reasonable excuse.  I am not satisfied on the balance of probabilities that what she has told me does constitute a reasonable excuse for the boys not going for these contact periods. 

6. There was some concern about bruising.  It was explained.  The Department of Human Services were brought into it.  They did not take the matter any further. 

7. The mother said the children have expressed some concern and she tried to get them to go.  In the course of her evidence, she says what she tells them, being "Please go or I will be in trouble."  That raises an alarm in my mind that that is not actually positively reinforcing the contact time that they should be having with their father.  They are young boys.  They should be told firmly what is to occur.

8. The mother raised a concern about A’s feeding regime.  Although of course she is concerned, and I understand that, on balance I was not satisfied of any genuine threat to his health and well-being.  For a very long time now A has been going to his father.  His father, it is conceded, does keep in touch with the dietician.  His father, like his mother, although they do things differently, is trying to feed A properly.  A is going as well as he can go in the difficult circumstances, and it does not appear that the dietician has been raising any concern or alarm about the feeding regime.  At least, none was brought to my attention.

9. I am not satisfied that there was a reasonable excuse on any one of those three occasions, including when A was without his brother.  He might have expressed some sort of concern about, "Gee, I'm not used to going off by myself," but again I think it was the mother's responsibility to nurture and encourage him in that.  His father has certainly been very actively involved in his care and, both parents agree, was there in hospital for the very long time that his mother was there too.  So he is no stranger to A at all.  So I am going to find those first three breaches proven, but not the fourth one.  Now, it brings me to what I should be doing about it.

DISCUSSION

1. The orders I propose are as follows:

   1.That charges number 2, and 4 to 11 of the husband’s Application for Contravention filed 21 February 2007 shall be struck out.

   2.That charge number 13 of the husband’s Application for Contravention filed 21 February 2007 shall be dismissed as not being established.

   3.That charges 1, 3 and 12 of the husband’s Application for Contravention filed 21 February 2007 shall be proven but no punishment shall be imposed.

   4.That for the purposes of the husband’s alternate week-end time with the children FW born on June 1996 and A born on August 1997 in accordance with paragraph 4 of the orders of this Court made on 21 November 2002, in each school term his first contact week-end shall be on the second weekend after the school term commences.

   5.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  21 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as APSLEY & APSLEY