Bilson and Sarsgaard

[2018] FamCA 274

FAMILY COURT OF AUSTRALIA

BILSON & SARSGAARD [2018] FamCA 274

FAMILY LAW – ORDERS – Contravention – where the Applicant seeks to prosecute a number of alleged contraventions – where a number of those contraventions have been the subject of summary dismissal – where two counts of alleged contravention remain – where the Applicant has not discharged the onus of establishing that the Respondent intentionally failed to comply with the Order or made no reasonable attempt to comply with the Order – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Bilson

RESPONDENT: Ms Sarsgaard

FILE NUMBER: BRC 11169 of 2011

DATE DELIVERED: 23 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 March 2018 and 23 April 2018

REPRESENTATION

APPLICANT: Mr Bilson in person

RESPONDENT: Ms Sarsgaard in person

Orders

IT IS ORDERED THAT

1. The Application – Contravention filed 2 March 2018 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 Bilson & Sarsgaard 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 BRISBANE

FILE NUMBER: BRC 11169 of 2011

Mr Bilson

Applicant

And

Ms Sarsgaard

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an Application for Contravention bearing the stamp showing the date, 2 March 2018, the Applicant seeks to prosecute a number of alleged contraventions.  A number of those have already been the subject of summary dismissal.  Two counts remained.  I have identified them and used numbers to do so. 

2. Count 4 is that which relates to Clause 2 of the Order made by Judge Jarrett on 24 June 2014, which provided that the children spend no less than two hours on either Saturday or Sunday of each weekend on a supervised basis at times that were organised by the Applicant (I summarise the effect of Clause 2).

3. The allegation of contravention is that, on 9 December 2017, the Respondent contravened the Order for time because she could not get C, who is one of the children, out of her car and get him to come into the Applicant’s home. 

4. The Applicant’s evidence about what happened on his account on 9 December 2017 may be found at paragraphs 29 to 32 of his affidavit filed in support of the Application for Contravention. 

5. The Respondent denies that she is “guilty” of contravening the Order in the manner particularised in the Application for Contravention.  Her evidence in relation to the events of that day may be found at paragraphs 29 to 32 of her affidavit (being those aspects of the same which remain following objection taken to various aspects of those paragraphs by Mr Bilson, the Applicant). 

6. The Applicant’s evidence is, in essence, that the Respondent came to his front door and informed him that C had said he was not coming in.  The Applicant’s evidence, in summary, is that he told the Respondent, “Okay” and shut the door.  He explains that he did so as a consequence of earlier discussion between himself and Ms D, the supervisor, about the manner in which he might approach any reluctance by the children to spend time with him. 

7. The Applicant’s evidence is, in a sense, supported by that given by the Respondent, at least insofar as it is suggested by her that she went to the door to tell the Applicant that C was not going in.  She corroborates the Applicant’s account that he responded to her, in essence, “Okay” and shut the door.  Her evidence is that, therefore, she made the children, including C, available to spend time with the father on that particular occasion and that short of forcefully and physically removing C from the car, she did not know what else the Applicant expected of her to get them to go on what she describes as “the rare occasions” on which they have refused to attend to spend time with their father.

8. As I emphasised during the course of the hearing, a person contravenes an order if and only if that person (then bound by the order) intentionally failed to comply with it or made no reasonable attempt to comply with it. 

9. I am not persuaded on the evidence before me that the Respondent either intentionally failed to comply with the Order to make the children – in this case, C – available to spend time with the father or that she made no reasonable attempt to comply with that requirement.  I accept her evidence that she went to the door, as is corroborated by the Applicant (as I have already said) to say that C was not prepared to go in on that occasion.

10. I also accept her evidence that, on occasion, the children’s behaviour can be difficult, that they are pragmatic and hard to reason with when one of their minds is set on something. 

11. For those reasons then, I am not persuaded that the Respondent intentionally failed to comply with the Order or made no reasonable attempt to comply with it and I dismiss Count 4 of the Application for Contravention. 

12. The last remaining Count is that which I have identified as Count 8.  It relates to an asserted contravention of a term of the Order made in January 2013.  Two particular aspects of that Order are asserted to have been contravened:  the first, Clause 4(a), which provides that “the Respondent shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with her” and, secondly, and Clause 31, which is in these terms: 

    Unless otherwise agreed, each parent shall provide separately the items the children may need, to include but not limited to school needs and sporting equipment, when in that parent’s care.

13. It is alleged that, in contravention of those two Clauses of that Order, the Respondent failed on 30 December 2017 to ensure that E had underwear such that she attended to spend time with her father on that occasion not wearing underwear. 

14. The Respondent’s response to the allegation of contravention was that she was again “not guilty” of acting in a manner that constituted contravention of the Order: that is, she said that she had not intentionally failed to comply with the Order, nor had she made no reasonable attempt to comply with it. 

15. Again, I have before me evidence given by the Applicant at paragraphs 64 to 69 of his affidavit.  I also have, at paragraphs 64 to 69 (such that remains after objection taken by the Applicant) evidence given by the Respondent in her affidavit in relation to that occasion of 30 December 2017. 

16. I am not persuaded on the evidence before me that the Applicant has discharged the onus of establishing that the Respondent intentionally failed to comply with the Order or made no reasonable attempt to comply with the Order.

17. It is clear on the evidence given by both of the parents, and as was affirmed by submissions made by the Applicant from the bar table, that on occasion E is reluctant to wear specified items of clothing.  Whilst Mr Bilson’s submissions from the bar table were to the effect that he had not encountered difficulties in having her wear underwear, as such, he certainly said that he had noticed, on occasion (having been provided with clothing for E) not dissimilar behaviour from her.

18. I accept the Respondent’s evidence that E has available underwear in her home.  The Respondent also said that, on occasions, E refused to wear underwear because she expressed that she did not like the feel of some of the fabrics from which underwear was made or the placement of the seams.  I also accept that, irrespective of those choices on occasion, E is always dressed with tights.  I accept the Respondent’s evidence as to the manner in which she has dealt with this issue to facilitate E’s attendance at school where the same issue seems to, at least, have had the potential of occurring.

19. I am not persuaded, therefore, that the Respondent intentionally failed to comply with the Order or that she has made no reasonable attempt to comply with the requirements of the terms specified in the Application for Contravention. 

20. For those reasons then, I dismiss Count 8 of the Application for Contravention.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 April 2018.

Associate:     

Date:              30 April 2018