Blackwood& Blackwood

[2009] FamCA 870

FAMILY COURT OF AUSTRALIA

BLACKWOOD& BLACKWOOD [2009] FamCA 870

FAMILY LAW – CONTRAVENTION – Case management

Family Law Act 1975 (Cth)

APPLICANT: Mr Blackwood

RESPONDENT: Ms Blackwood

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2863 of 2008

DATE DELIVERED: 20 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Dandenong

JUDGMENT OF: Cronin J

HEARING DATE: 20 August 2009

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms S. Maramis

SOLICITOR FOR THE RESPONDENT: Falcone & Adams Lawyers

Orders

1. That the husband’s contravention application filed 9 July 2009 be adjourned to 20 August 2009 in the Judicial Duty List at 10.00am.

2. That the husband serve his contravention application, affidavit and sealed copy of this order upon the Independent Children’s Lawyer as soon as practicable.

3. That the wife’s costs of this day be reserved and fixed at $990.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

AND THE COURT NOTES

A.That the parties will make their own efforts to arrange confidential Family Dispute Resolution counselling at convenient times through Relationships Australia, or similar service.

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

FAMILY COURT OF AUSTRALIA AT MELBOURN

FILE NUMBER: DGC 2863 of 2008

MR BLACKWOOD

Applicant

And

MS BLACKWOOD

Respondent

REASONS FOR JUDGMENT

1. On 30 September 2008, the parties, in a parenting matter in the Federal Magistrates Court at Dandenong, compromised and asked the court to make final orders relating to their child. The child was born in June 2006.  The orders that are relevant for my purposes today are that the child was to live with her father from 1 o’clock on Wednesday in week 1 to 1 o’clock on Wednesday in week 2, and then obviously with her mother for the balance of the time.  Significantly, paragraph 3 of the orders provided that the husband was to collect the child from and return her to the wife’s residence at T, for the purposes of changeover.

2. On 9 July 2009 in the Dandenong Registry, the father filed a contravention application against the mother.  The only allegation in Part D of the contravention was that on 24 June 2009 at 1 pm at the wife’s residence in T:

   The respondent without reasonable excuse refused to allow the applicant to spend time with the child […], date of birth […] June 2006.

3. The husband filed two affidavits on 9 July 2009.  The first was sworn on 4 July, the second on 9 July.  Apart from striking out one paragraph which breaches the provisions of Part 3.10 of the Evidence Act, the balance of the evidence, save for one document, all postdates the date of the allegation.  The husband relied on a letter dated 23 June, which I note was prior to the breach, from Falcone & Adams Lawyers. It reads, addressed to Einsiedels Legal Practitioners, as follows:

   We refer to the case assessment conference today and confirm that our client will not permit [the child] to spend time with your client until further notice, for the reasons outlined in her affidavit in support of response to initiating application.  Accordingly, please ensure that your client does not attend our client’s home tomorrow for the purposes of changeover.

4. That is the only evidence presented by the husband which might establish a breach. 

5. Ms Maramis of counsel appeared on behalf of the wife.  Ms Maramis said that the wife denied that there had been a breach. 

6. Section 70NAC of the Act provides that:

   A 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.

7. The evidence simply is this.  The husband received through his solicitors a copy of the letter to which I have just referred.  As a result of that, he did not attend at the appropriate point of handover for the child.  As a result of all of that, the husband does not know whether in fact the child would have been handed over on that particular time.  Technical though that may be, the words of s 70NAC are “only if” there is evidence of an intentional failure to comply with the order.  I cannot be satisfied on the balance of probabilities that the formal breach has been proved, and on that basis, I cannot find the contravention proved.

8. Section 70NBA, however, provides that a court having jurisdiction under this Act may vary a primary order in effectively any circumstances whether a court has found the contravention proved or not.  Having found that the contravention has not been proved in this case, that provision still applies.  The purpose of the provision obviously is to ensure that even technical problems such as those to which I have referred do not occur again.  The transcript will note the discussion between counsel for the wife and also with the husband in which I am assured that what has occurred will not occur again in that way.  In other words, if the husband gets advice from his solicitor that the wife will not be at the point of handover, then he does not need to attend.

9. I am cognisant of the geography of this particular case and note that T is quite a long way from this particular area.  In those circumstances, it seems to me unreasonable to expect the husband to turn up if he is told that he does not need to.  However, as I said, this is not a matter that I can simply look behind the provisions of the Act and find some way of ensuring that the contravention is proved.  It must be proved on the balance of probabilities, and I am not satisfied, notwithstanding the letters, that the husband has proved his case.  The contravention application filed on 9 July is dismissed.

I certify that the preceding Nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  31 August 2009