Brandella and Brandella

[2009] FamCA 272

FAMILY COURT OF AUSTRALIA

BRANDELLA & BRANDELLA [2009] FamCA 272

FAMILY LAW – CONTRAVENTION – Dismissal of application by father

Family Law Act 1975 (Cth)

APPLICANT: MR BRANDELLA

RESPONDENT: MS BRANDELLA

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10215 of 2007

DATE DELIVERED: 8 APRIL 2009

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 APRIL 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: NO APPEARANCE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Orders

IT IS ORDERED:

1. THAT the contravention application filed 16 March 2009 be discharged.

2. THAT paragraph 3 of the orders pronounced by Bennett J on 14 April 2008 (and as subsequently varied by Watts J on 24 September 2008) be discharged.

3. THAT the father spend time with the children W born … April 2002 and D born … January 2004 on each alternate weekend from 6.00 p.m. Friday until 6.00 p.m. Sunday commencing 24 April 2009 and each of the parents are to punctually deliver and punctually return the children to the S Police Station at the designated times provided for in the order.

4. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

5. THAT exhibit “1” (the wife’s letter of 7 March 2009) be retained upon the court file.

6. THAT the husband forthwith attend a post separation parenting course and successfully complete same and provide a certificate of completion to the wife, the Independent Children’s Lawyer and the court.

7. THAT the Form 1 application filed by the wife on 12 September 2007 be consolidated with the outstanding application in a case which is fixed for a Financial Conciliation Conference before Registrar Riddiford on 24 July 2009 and thereafter he relist any outstanding matters for hearing before the docket Judge (Bennett J) at an available date.

IT IS NOTED

A.THAT the wife has advised the court that as this day there is no telephone landline connected to her current residential premise.

B.THAT the parties are unable to agree but are required to separately discuss out of court the commencement date and time for holiday (term) time to be spent by the husband with the children.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10215 of 2007

MR BRANDELLA

Applicant

And

MS BRANDELLA

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The matter of Brandella is before the court in the judicial duty list.  The father issued a contravention application on 16 March 2009, specifically alleging that on 13 March 2009 the mother, without reasonable excuse, refused to allow him to spend time with the two children of their marriage, W, born in April 2002, and D, born in January 2004.

2. In support of that contravention application, the father filed an affidavit and annexed to that affidavit was affixed the reasons for judgment of Watts J, delivered 22 September 2008.  As part of his case a letter was tendered to the court by the father, acknowledged to be written by the mother on 7 March 2009, and I have read that letter which I have marked as an exhibit to be retained on the court file.

3. Whilst the letter was written six days beforehand, it is clear that the intention of the letter was to notify the father of the school picnic and that the children would be at that picnic on Friday, 13 March 2009, and that the offer was for the father to attend at the school on that day and spend time with the children, contrary to the time spent orders which operate in favour of the father.

4. The mother has formally pleaded not guilty to the alleged contravention.  The mother has filed three affidavits, one from herself, her father and a neighbour and friend.  I have read each of those three affidavits.

5. In essence, the mother’s response is that there is a reasonable excuse and reason for contravention which centres around the mechanical breakdown of her motor vehicle on that day whilst she was attending her gynaecologist at Freemasons Hospital, having earlier attended upon her psychiatrist.

6. The mother's affidavit is somewhat light on facts but otherwise heavy on comment and there are some matters that simply are not acceptable, referring to previous events and issues. 

7. I emphasise the only matter before me is the specific contravention application of Friday, 13 March 2009, and I confine my reasons to that charge on that day.  Both the parents have wandered in and out of earlier issues and excuses in the days prior to then. 

8. This matter has a particular background and contravention issues were before the court on 24 September 2008.  I have read the reasons for judgment of Watts J and his orders.  I am specifically aware that the court that day warned the mother that any further proven contravention may be dealt with pursuant to the Family Law Act in such a way as to impose a fine, community service order or imprisonment.  The orders that day set up a regime of time to be spent by the father with the children over the six weeks post 24 September 2008 and that period has now expired.  The orders also required the father to attend a post-separation parenting program.  A similar order was directed at the mother.

9. I accept that the mother has attended and has presented to the court, annexed to her affidavit, certificates of completion of that post-parenting program.  The father has not attended or completed the program, though he explained to the court that he had up to a three-hour meeting with a government agency and thought that was by way of compliance with that court order.  Clearly it was not, and the obligation is now upon the father to forthwith attend a post-separation parenting program and successfully complete same and provide a document of completion to the mother and to the independent children's lawyer.  It would be prudent to file a copy of that completion certificate with the court.  I say that because my observation of the parties, their attitude, demeanour and level of conflict is such that this matter will likely to return to this or another court hereafter and presumably on more than one occasion.  That is most unfortunate but it seems to be the reality of the way these two people conduct themselves as parents.  I know each of them will regard that as harsh and that the other is to blame, but therein is somewhat of the reality of each of their behaviours which they do not understand.

10. The fact that those orders were made by Watts J is an important matter by way of background but it is only relevant if I conclude a further breach on the basis of the current contravention order before me and that must be adjudged wholly separately and independently from any past determination.

11. I have had the benefit of reading the reasons for judgment and therefore I understand the basis upon which the mother argued her case on the previous occasion. She relied upon section 60NEA(4) of the Family Law Act, that is, a reasonable excuse, as she did so on the earlier occasion.  That reasonable excuse must be established only to the balance of probabilities and I have assessed the evidence in that regard.

12. This matter was listed in a busy duty list and was reached only in the afternoon.  There was simply no time to permit cross‑examination, though clearly each of them would have delighted in asking questions of the other or the various witnesses.  I record that the mother's father was at court but presumably not the other neighbour.  The matter has had to proceed in a practical manner upon the documents filed, the exhibit and the manner in which both parties, appearing in person, addressed the court.

13. I do harbour very particular concerns about the mother's response, attitude and actions.  The exhibit letter is a serious matter of concern and there does seem to be a position of the mother that an excuse can and always be found.  There is certainly not an acceptance by her of the necessity for strict compliance with orders.

14. As an aside and having discussed matters with both parties, I am going to discharge paragraph 3 of the "time spent with" orders made by Bennett J on 14 April 2008 to reflect the current situation, including the mother's change of residence.  I do understand that those matters were in part dealt with by Watts J and he has already amended the changeover from R to S, but I will incorporate that in the further order.

15. I will leave alive paragraph 5(d) of the order of Watts J so that the father must be present with the children or otherwise an adult supervisor must be there if the father is not there, but I understand the father's case to be that he is on weekends always with his children when they are with him.

16. Returning to the contravention application and assessing the evidence in affidavit before the court, there is not sufficient evidence or certainty for me to reject the mother's defence.  I make that finding with a very marked degree of caution and indeed the mother is clearly gravely upset by and overcome by the proceedings and matters of and related to the lifestyle post-separation.  She has just had another child who is now eight months of age, born of a relationship with a married person who still remains within his marriage.  I make no further comment upon that matter but clearly it has exacerbated the pressures of her lifestyle.  She has also said to the court that she is near to financial bankruptcy but I have no evidence and do not further proceed upon that matter which would only have been relevant in this case if I found her guilty and looked to impose a fine by way of financial penalty.

17. In the context of this case and having regard to where the mother was on the day, the issues of the alleged breakdown of the car which cannot be proved to the contrary, the travel distance and time to her residence, health matters and all of the related issues, I am not comfortable or satisfied in recording a conviction to the appropriate level of proof.  I stress that I have in open court said to both parties, but particularly to the mother, that there must not be and cannot be yet another occasion of a series of text messages looking to bring about a situation which ultimately is highlighted by her actions in limiting the father's time spent or bringing about a situation where it is curtailed.  I do not have confidence that she understands or accepts that but I do trust she does not come back to court.

18. On the other hand, it is clear that the father has an overriding passion for his children, for enforcement of orders, and will tolerate no indiscretion or interruption for whatever reason.  That strikes me as being somewhat harsh and impractical in the circumstances but this matter has a history.  It is evident already that there is one large box of court documents.  The parties no longer have legal representation for financial reasons.  They must continue all of their issues in person and I would be confident that unfortunately the children will have their parents back in court on related and fresh issues on an ongoing basis.

19. Commonsense needs to be applied, but it is doubtful if one or both of these parents will bring that level of commonsense to this case and there is clearly not sufficient external family or other guidance available.

20. I do want to comment that the independent children's lawyer is not here today.  That is unfortunately a situation often found in this court in contravention matters but it may have led to some level of commonsense or better explanation to the court and in a case like this, the presence of an independent children's lawyer can only always be helpful.  Budgetary restraints being what they are, these parties are not likely to have those facilities offered to them in many ongoing issues, though the children's issues remain alive and, as I understand it, are before Bennett J, in her docket, and under the control of Registrar Riddiford.

21. It may be that, aside from the contravention, there are other outstanding matters.  The mother has made reference on various occasions to her continuing applications before the court but the only matter that I deal with today is the contravention application.  For the reasons that I have given, I am not comfortable with recording a conviction.  There is a level of a reasonable excuse that is just and appropriate to discharge the application, albeit with some reluctance and concern.

22. For those brief reasons which I will have transcribed and placed on the file, that particular contravention application issued 16 March 2009 is discharged.

23. As I said, I will otherwise make orders varying the existing children's order, trying to bring some level of certainty, though with little confidence that the orders will ultimately bring about compliance both ways.  

24. I will have these reasons transcribed, placed upon the court file, made available to the parties and hopefully they will be read by various judges or federal magistrates hereafter in proceedings which I am sure will continue to arise between these parents.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate: