Bale-Sutch and Bale-Sutch (No. 2)

[2009] FamCA 667

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH (NO. 2) [2009] FamCA 667

FAMILY LAW – CONTRAVENTION

Family Law Act 1975 (Cth)

APPLICANT: Mr Bale-Sutch

RESPONDENT: Ms Bale-Sutch

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 20 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 July 2009

REPRESENTATION

THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR REES

SOLICITOR FOR THE RESPONDENT: WISEWOULD MAHONY LAWYERS

Orders

1. That the application in a case filed by the husband on 12 June 2009 and the contravention application filed on the same date be dismissed.

2. That the application of the wife filed as a response be adjourned to 10.00am on 31 July 2009 as an interim hearing.

3. That the wife file and serve any further material upon which she intends to rely by 24 July 2009.

4. That the husband file and serve any material upon which he intends to rely by 29 July 2009.

5. That the husband have leave to issue subpoenae to give evidence to Mr B and Ms L noting that they may not be called upon to give evidence without some indication of the evidence that they propose to so give.

6. That the costs application of the husband be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bale-Sutch & Bale-Sutch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800 of 2007

MR BALE-SUTCH

Applicant

And

MS BALE-SUTCH

Respondent

REASONS FOR JUDGMENT

1. This is an application by the husband that the wife be dealt with for contravention of orders that I made on 18 February 2009. 

2. There has been much argument and confusion this morning about the contravention application.  I propose to deal with the matter strictly as it is pleaded. 

3. The allegation of the husband is that, on 7 June 2009 at 10 am at K, the mother did not deliver the children for his supervised time with them, pursuant to the orders.  The second allegation is that on 10 June 2009, at 7 pm in the Yarra Ranges area, the mother refused to “communicate” weekend access despite his repeated telephone calls and text messages.  He says the mother refused weekend “access”. 

4. I am treating the second allegation as being that the telephone contact with the children did not occur that particular night.  It is unclear what is clearly meant and the husband said at the end of his evidence that there was a third allegation.  In any event, even if there was a third allegation arising out of that particular date and time, it matters little for reasons that I will come to. 

5. The orders that I made on 18 February 2009 were extensive after a hearing that ran for three days.  All parties were represented.  The critical question that would have effected changes to the orders was the outcome of some proceedings against the husband for criminal charges. 

6. Paragraph 25 of the orders I made provided that upon completion of the final hearing of those criminal charges and subject to the contact supervisor advising the wife, in writing, that the children did not need supervision, the husband was to spend time with and communicate with the children on each alternate weekend and then also by telephone on each Wednesday night.  The critical questions, therefore, are whether: (a) the criminal proceedings were completed;  and (b) the supervisor had advised the wife in writing that the children did not need supervision. 

7. It is common ground that the criminal proceedings had, in fact, concluded.  There were some serious charges laid against the husband and he pleaded guilty to a charge of breaching an intervention order in circumstances where he says he did a deal with the prosecutor. 

8. In that case, he was sentenced to a term of imprisonment, but it was suspended.  Therefore, the first part of the relevant provisions of paragraph 25 have been fulfilled. 

9. The second part was that the supervisor had to advise the husband in writing that the children did not need supervision.  Ironically, both parties rely upon a letter written by a Ms L, who describes herself as the family day-care coordinator of the local Shire Council. The letter is dated 10 June and it is addressed to the wife.  Most of the paragraphs are not particularly relevant, other than the fact that it refers to the fact that Ms L was the organiser of the care provider. 

10. Ms L said that following feedback provided by the care provider, she, Ms L, supported the recommendation for the husband to progress to unsupervised access visit with his children.  That, on one view, could be seen as the supervisor, through her nominee, being very clear in her indication that supervision was no longer necessary.  The problem with that is that Ms L was, first and foremost, not the person who was supervising the time.  No doubt, she was working off the notes provided by a Ms N, who was the supervisor. 

11. The difficulty is that, in the orders that I made, the supervisor is quite clearly defined in paragraph 22 as a person approved by the Independent Children’s Lawyer.  There is no evidence before me that Ms N or Ms L is the appointed and approved person by the Independent Children’s Lawyer. 

12. On that basis, I could not find, on the evidence, that the period of time referred to in paragraph 25 of the orders has actually started.  Whilst it might be a technical matter, this is an allegation of contravention of a court order.  On that basis, the second of the two allegations is dismissed. 

13. The first allegation relates to 7 June.  On that date, there is no question that the children did not see their father.  The mother’s evidence is that the children were not well.  The father’s evidence is that he did not get any medical certificate, although he now concedes that in material provided to him today, there is a medical certificate for each child, dated 5 June for that particular day. 

14. The husband’s view is that certificates can be forged and you can get a certificate at any time, so I ought not to take those into account. 

15. Provisions in the Act in relation to contraventions are quite explicit and the legislation has a pathway. It distinguishes between contraventions of a less serious nature and a more serious nature.

16. This is the first time that a contravention of my orders has occurred, that is, there is no suggestion of any prior contravention proved by the Court. 

17. Section 70NAC describes the meaning of “contravened an order” as follows:

    The person is taken, for the purposes of this division, to have contravened an order under this Act affecting children if and only if:

    (a)       where the person is bound by the order, he or she has:

    (i)       intentionally failed to comply with the order, or

    (ii)      made no reasonable attempt to comply with the order.

18. Section 70NAE describes the meaning of reasonable excuse for the contravening an order as follows:

    The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7). 

19. Subsection (2) describes the following:

    A person is taken to have had a reasonable excuse for contravening an order under this Act affecting children, if:

    (a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

    (b)the court is satisfied that the respondent ought to be excused in respect of the contravention. 

20. It is not suggested here that the wife did not understand what the order was about.  Subsection (5) reads:

    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 spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

21. What I have to be satisfied about is whether the wife believed, on reasonable grounds, that not allowing the children to have time was necessary to protect their health.  She relies on the medical certificate.  She relies on the fact that the children had flu-like symptoms.  She, herself, was sufficiently ill to be hospitalised.  The husband disputes all of that to say that the children were at the Court the next day, but the evidence I have is from a medical practitioner, indicating that the children were not fit to go to school on that particular day.  That evidence is set out in annexure LBS4, where a Dr U said that, on 5 June only, the children would be unfit to continue their usual schooling.

22. Having regard to the fact that the wife’s evidence is corroborated by those certificates, I am satisfied that she had a reasonable excuse on that day.  On that basis, that allegation must be dismissed as well. 

23. That is not where the matter ends, because under s 70NDA, this particular subdivision applies if the primary order has been made and the Court is satisfied that the person has committed a contravention, but proved to have a reasonable excuse for the current contravention.  That is clearly the situation here.  Section 70NDB provides for an order in favour of the applicant compensating the person for lost time with the children.

24. I am at large, therefore, in relation to what makeup time should be made in respect of the period contravened.  The difficulty in this case is that the wife, this morning, filed and served upon the husband a response in which she seeks to extend the orders that I made earlier in the year, so that the supervision is ongoing.  I have not read those affidavits in any detail, because the husband did not want me to hear that application this day.  The question is what sort of order ought to be made in the meantime to rectify the time that the husband lost with the children for the weekend of 7 June.  I propose to make orders that the time set out in paragraph 15 resume this weekend.

25. There is also an application by the husband for costs. He seeks $600, which includes petrol, wages and overnight accommodation. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) says that each party pays their own costs, unless the circumstances justify departure from that rule. In determining whether or not there are justifiable circumstances, the Court is obliged to look at the factors in s 117(2A). One of the factors is whether one party has been wholly unsuccessful, and to a very large degree, if not entirely, the husband has been wholly unsuccessful. In addition to that, I take into account the financial circumstances of the parties, noting that neither party is of any significant means. This is not a case in which I would exercise the discretion to make an order in the husband’s favour.

I certify that the preceding Twenty Five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  29 July 2009