BANE & BANE

[2011] FamCA 82

FAMILY COURT OF AUSTRALIA

BANE & BANE [2011] FamCA 82

FAMILY LAW – CONTRAVENTION – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Bane

RESPONDENT: Ms Bane

FILE NUMBER: MLC 312 of 2008

DATE DELIVERED: 13 January 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 January 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Boden

SOLICITOR FOR THE APPLICANT: Starnet Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Mr Buchecker

SOLICITOR FOR THE RESPONDENT: Gavan J Black

Orders

1. That the contravention application filed 6 October 2010 is proved and sub-division E applies.

2. That the contravention application filed 3 November 2010 is proved and subdivision E applies

3. That the contravention application filed on 22 December 2010 is dismissed.

4. That paragraphs 7(a) and (b) of the Orders of 5 November 2009 are discharged.

5. That until further order the husband spend time with children M born … May 2005 and K born … January 2007 each alternate weekend from 5.00pm on the Friday with the handover occurring at a contact centre until the commencement of the day care and school on the following Monday

6. That until further the husband is to spend time with the children each alternate Wednesday from the conclusion of kindergarten in respect of K and the conclusion of school in respect of M until the following morning where he will return the children to the activities on those days for the children.

7. That until the contact centre arrangements commence, the husband is to collect both children from wife’s residence at 5.00pm.

8. That husband and wife immediately do all things necessary to enrol themselves at the contact centre at P or at such other centre as is reasonably able to be arranged quickly.

9. That all extant proceedings be adjourned to a first day of hearing at 10.00am on 1 April 2011.

10. That each party file an amended application and/or response setting out precisely what orders they propose, such document to be filed by 4.00pm on 18 February 2011.

11. 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.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 312 of 2008

MR BANE

Applicant

And

MS BANE

Respondent

REASONS FOR JUDGMENT

1. There are three contravention applications before me, two by the husband and one by the wife, arising out of orders that I made on 5 November 2009 concerning M who was born in May 2005 and K who was born in January 2007. 

2. The wife filed her application on 6 October 2010 alleging 27 breaches, all of which the husband denies.  The husband filed an application on 3 November 2010 alleging two breaches and an application on 22 December 2010 alleging one breach.

3. I make the following findings: 

   (i)       The allegations of the wife against the husband are proved. 

   (ii)The allegations of the husband against the wife in respect of 3 November 2010 allegations are proved. 

   (iii)The allegations of the husband against the wife of 22 December 2010 are dismissed.  The standard of proof is set out in section 70NAF:

   It is the balance of probabilities.

   Section 70NAC sets out that:

   A person is taken to have contravened an order only if he or she has intentionally failed to comply with the order or made no reasonable attempt to comply.

4. Section 70NAD(a) and (b) refers the Court to section 65M and section 65N, which directs that:

   A person must not refuse or fail to deliver or return a child at the conclusion of a period of time.

   And in respect of section 65N:

   Must not hinder or prevent a person and the child spending time together.

   A person is taken to have had a reasonable excuse for contravening an order if and only if certain things are reasonably believed to be necessary to protect the health and safety of a child and only for the period of time necessary to continue to protect the health and safety of the child.

   However, section 70NAE does not limit the excuses to those alone, but whatever excuse is proffered must be reasonable in the context of the intentions of the legislation as set out in section 60B.  The facts of this case are modestly simple.  On 5 November 2009, I ordered the children to spend time with the husband on each alternate weekend from 10 o’clock on the Friday morning until the beginning of childcare, kindergarten and/or school on the Monday.

5. The husband complained that the wife’s attendance at day care was sporadic, and therefore, he did not know what the collection arrangements were.  He then wrote her his proposal in an email in February 2010.  I do not accept that that was an appropriate interpretation of the order.  The order required his time regardless of the day care arrangements to be from 10 am.  It was only if he knew of some other arrangement that he would be able to alter that time.  In other words, if the children were not with the wife, he had to arrange for the collection of them from the day care or kindergarten.

6. In his email, he said he would pick the children up from the wife, and then I quote “residence or day care” at 10 am.  The order did not mention day care.  The wife, therefore, had an obligation to make the children available at 10 am.  The order also provided the conclusion of the time at the beginning of childcare, kindergarten and/or school on the following Monday.  Whilst there was some uncertainty about when that should conclude, the husband was in no doubt because it was said in his own evidence to be 10 am.  That was provided in paragraph 17 of the order and mentioned in his email.

7. There were disputes about whether the children were in day care or kindergarten, and again, the husband unilaterally chose his residence as the concluding point rather than the day care centre.  He said he was not to know whether the children were in day care or not, but the wife’s evidence was that she had advised the husband.  The husband’s evidence was he had written an email after he had received advice.  Unfortunately, I reject his view.

8. The husband also argued that the wife had complied and had therefore concurred with his view subsequent to February 2010, but I accept her evidence that she had no choice because she had to obtain the return of the children.  Accordingly, I find that the basis upon which the husband carried out the conclusion and collection during 2010, as alleged by the wife, is not the basis upon which I could make any finding in his favour.

9. In respect to the incidents of 27 and 29 October 2010, the wife did not provide the children to the husband because he would not tell her more than the building number where he lived.  He gave an explanation that she could have found out the apartment number from the building manager, but I reject that for the reasons I gave in discussion with counsel.  It was put to the wife that she withheld the children so that she could obtain the address to serve the husband with a contravention application.  On his evidence, I find that that is not the case.

10. The wife should not, however, have unilaterally acted to determine the time that the husband was to spend with the children when there were no previous suggestions of concern about the husband’s capacity to care for them.  For her to say that she did not know where her children were flies in the face of the fact that the husband was responsible for them and had been so for some considerable period of time.  Accordingly, I find that there is no basis for the wife to have a reasonable excuse in respect of that particular period of time.

11. On 10 December 2010, the husband attended the wife’s residence.  There is a significant dispute about exactly what happened, but it culminated in the attendance of the police as well as the paternal grandparents.  The children did not go with their father on that particular weekend.  I accept that they were crying.  I am not surprised as they witnessed the physical altercation over a period of about five minutes involving the maternal grandmother, the husband, and their own mother.

12. The husband’s view was that the things calmed down and the children should have gone either as a result of the instigation of the assistance of the police or upon the attendance of the paternal grandparents with their assistance.  If that was not to be the case, then perhaps the children should have gone on the ensuing day.  I reject all of those propositions.  The wife’s evidence, which I accept, was that the children were upset and she feared for their safety.  Importantly, the children went on the following holiday visit and there was no incident at the point of handover.  I am satisfied that the wife had a reasonable excuse in the circumstances and that particular application by the husband must therefore be dismissed.

13. Both practitioners agree that this was a section 70NEA matter;  that is, the contravention was one where there was not a reasonable excuse, but with less seriousness attached to it.  I agree with those particular sentiments.  There are pending disputes about the future arrangements for these children.  I propose to adjourn the proceedings under section 70NEB(1)(c) to allow both parties to work out what arrangements do properly meet the needs of these children now that a year has gone by.

14. In the meantime, the one day where there is a likely confrontation is the Friday morning.  Until further order, I will commence the handover at the wife’s residence at 5 pm on the Friday, but only until a contact centre arrangement can be made.  It would seem in the circumstances that the alteration has minimal difference for the children, because M will be at school in 2011 anyway and K will be in day care every second Friday.  It seems on some days the husband puts K into day care in any event.

15. I will order the parties to immediately do all things necessary to enrol in the contact centre in the western suburbs of Melbourne.  It may be in the fullness of time that when the parties develop some trust and respect to one another, that sort of arrangement will no longer be necessary.  In the meantime, I have some serious concerns about the children witnessing the sort of behaviour that went on in the December incident.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 January 2011.

Associate: 

Date:  15 February 2011