Bilney and Brisco and Anor (No 3)

[2011] FamCA 835

FAMILY COURT OF AUSTRALIA

BILNEY & BRISCO AND ANOR (NO 3) [2011] FamCA 835

FAMILY LAW – ORDERS - Contravention

Family Law Act 1975 (Cth)

APPLICANT GRANDMOTHER: Ms Y Bilney

APPLICANT MOTHER: Ms J Bilney

RESPONDENT: Mr Brisco

FILE NUMBER: ADC 6474 of 2007

DATE DELIVERED: 21 October 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 21 October 2011

REPRESENTATION

APPLICANT GRANDMOTHER In person

APPLICANT MOTHER: In person

RESPONDENT FATHER: In person

Orders

1. That the application of the grandmother filed 14 June 2011 is dismissed.

2. That the application of the mother filed 17 October 2011 is dismissed.

3. That the reasons be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Bilney & Brisco and Anor (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 6474 of 2007

Ms Y Bilney

Applicant Grandmother

And

Ms J Bilney

Applicant Mother

And

Mr Brisco

Respondent Father

REASONS FOR JUDGMENT

1. Mr Brisco, to whom I shall refer as the father in these proceedings, faces two applications containing four allegations of breaches of parenting orders. 

2. The applicants are Ms Y Bilney, to whom I shall refer as the grandmother, and Ms J Bilney, to whom I shall refer as the mother. 

3. The children to whom the orders in these proceedings relate are C, who is aged six, and J, who is aged five.  They currently live with the father. 

4. Orders were made by Simpson FM on 24 January 2011.  The relevant order provided that the mother have supervised time with C and J on the basis that the time was to be arranged by a contact service. 

5. On 15 April 2011, Simpson FM ordered that the grandmother have supervised time with C and J and, again, the same order was made that the contact service was to make whatever provision it could for the contact to occur.

6. I make three important immediate observations.  The first is that the substantive parenting proceedings in this case began in 2007.  The war is obviously longstanding.  Secondly, the Court’s file is in two boxes.  The documents I am dealing with are numbered as high as number 235.  Thirdly, both orders of Simpson FM required supervision.  In parenting matters, that would indicate something about the seriousness of leaving the children unattended with a party. 

7. All of those matters say a lot about the dispute between the parties.  It is not much short of a war and having heard the evidence of all of them, I wonder whether their focus is on the children or, as is more likely, their own needs.  This litigation is a disgrace.

8. I propose to dismiss all of the applications. 

9. In the sequence of time, the first application was brought by the grandmother.  It was filed on 14 June.  In September 2011, Burr J dismissed that application.  Doing the best I can, his Honour reinstated it at the request of the grandmother.  That, and the evidence supporting the application, oozes with issues about punishment rather than on making the parent/child or grandmother/child relationship work. 

10. The allegations of the grandmother were that the father breached the orders on 30 May and 12 June by not taking the children to the contact centre.  The father did not deny the allegation but said that he had a reasonable excuse. 

11. His excuse was simple;  he said he feared for the safety of the children and also himself because only days before, the grandmother had been convicted by a Criminal Court for assaulting him and she was sentenced to six months imprisonment, presumably suspended.  It is, again, relevant to ponder the seriousness of such an act by the grandmother if it was treated that way by the state court.  The seriousness is relevant to whether I should accept the father’s excuse as reasonable. 

12. The allegations of the mother are contained in the second application.  It was filed at the Court by leave of Burr J on 17 October;  in other words, it is only a few days old. 

13. Accompanying the mother’s affidavit and clear from her comment in the witness box, is that this is about punishing the father for things that he has or has not done.  She misses the point of the legislation.  She alleged the father did not attend the contact centre on 24 April 2011 which was to have been the first contact period under Simpson FM’s order. 

14. The second allegation relates to 16 October 2011, the very day before the hearing before Burr J. 

15. The father did not dispute the facts but said he had a reasonable excuse for not attending in respect of both dates. 

16. In her evidence, the mother conceded that she had been given makeup time “of sorts” and that there had been no other breaches until the last weekend. 

17. This is an example of an inappropriate use of Court resources and a complete waste of time.  It clearly was not child-focused.  That will no doubt become a very relevant issue on the substantive trial of the parenting proceedings.

18. The father’s evidence was that he received a letter from the contact centre on 20 April 2011 albeit dated much earlier, and was told to go to the contact centre only some four days later.  He contacted the contact centre and said that he had already made arrangements to take the children away for Easter and that is an excuse that I accept as excusing his breach. 

19. The weekend of 16 October 2011 was different.  His evidence was that his car would not start.  The mother knew that because when she filed her application with the supporting affidavit on 17 October, she made reference to it and she complained bitterly about the fact that there were other people whose cars he could have obtained. 

20. When the father gave evidence, he explained the difficulties he had obtaining those cars and, in any event, I question whether it is the responsibility of other people to provide transport.  He corroborated his evidence about his own car with a mechanic’s report.  In addition, he said he had been unable to drive because of injuries he received from the assault on him by the grandmother.  I accept his evidence.

21. In answer to my questions, it became apparent that the father lives 30 kilometres away from the contact centre.  He lives on Centrelink benefits;  he receives $30 per month child support from the mother.  A taxi, at something like $120 round trip, would not seriously be an option. 

22. Section 70NAC of the Family Law Act 1975 says that inter alia:

    A person is taken to have contravened an order if, and only if, where bound by the order, they intentionally fail to comply or make no reasonable attempt to comply.

23. Under s 70NAE, there are circumstances where a person can be excused from complying with an order, if they satisfy the Court that they have a reasonable excuse. 

24. Reasonableness is considered by an objective analysis.  In determining the reasonableness, the Court is entitled to take into account all of the surrounding facts adopted by or affecting, the parent not complying. 

25. In all cases, the standard of proof is the balance of probabilities.  The applicant has to prove that the breach occurred.  At that point, the onus of proof reverts to the respondent. 

26. Here, the father said that he feared for his safety and that of the children.  He maintained in cross-examination of him by the grandmother that his fear was there regardless of the children’s contact service security system.  Having regard to the seriousness of the incident that gave rise to the sentence imposed on the grandmother in June, I am not at all surprised.  The father agreed that the problem was now over and it was his intention to comply with all future orders.  I accept that evidence. 

27. I find the father has satisfied the onus of proof and that he did have a reasonable excuse.  Accordingly, the grandmother’s application is dismissed.

28. In respect of the mother’s allegation concerning April 2011, it says more about her than it does about the father.  For reasons set out above, the father had a reasonable excuse and that allegation will be dismissed.

29. In respect of the mother’s allegation concerning the incident on 16 October, the father produced sufficient evidence to show that the problem in getting to the contact centre was something that would have been difficult.  His performance before that had otherwise been satisfactory and there was no assertion that he had failed otherwise to comply.  I accept his evidence and he has therefore satisfied the relevant onus.  Accordingly, the second allegation must be dismissed. 

ORDERS DELIVERED

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 October 2011.

Associate: 

Date:  31 October 2011