Browne and Simpson

[2012] FMCAfam 581

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BROWNE & SIMPSON [2012] FMCAfam 581

FAMILY LAW – Contravention proceedings – admission of contraventions – serious disregard of obligations under the primary order.

Family Law Act 1975 (Cth), s.70NFA(2)(b)

Applicant: MS BROWNE

Respondent: MR SIMPSON

File Number: MLC 5113 of 2008

Judgment of: Hartnett FM

Hearing date: 30 May 2012

Delivered at: Melbourne

Delivered on: 30 May 2012

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Trim

Solicitors for the Respondent: Bartel & Hall

Upon the Respondent admitting contravention of Orders of the Court without reasonable excuse, the Court finds that on the balance of probabilities the Respondent has contravened Orders of the Court made 17 October 2008 and has done so on 18 April 2012 in respect of four (4) counts. The Respondent’s contravention the Court is satisfied, showed a serious disregard of his obligations under the primary Order and pursuant to s.70NFA(2)(b) of the Family Law Act 1975

THE COURT ORDERS THAT:

1. The Respondent pay to the Applicant costs incurred by her in the sum of $420 within 14 days hereof.

2. Order number 5 of the Orders made 30 April 2012 continue in full force and effect until after the conclusion of the second term holidays.

3. The Respondent is to enter into a bond of 12 months duration to be of good behaviour and comply strictly with the existing orders of the Court. THE COURT NOTES THAT he undertakes to enter into such bond.

4. All extant applications are otherwise adjourned to 30 July 2012 at 9.45am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 5113 of 2008

MS BROWNE

Applicant

And

MR SIMPSON

Respondent

REASONS FOR JUDGMENT

1. Before the Court this day is an application for contravention filed by the mother on 20 April 2012.  In support of that application, is filed by the mother, an affidavit sworn and filed by her on 27 April 2012. The father was not required to, but has filed an affidavit in response to that contravention application sworn by him on 28 May 2012.  Most of the affidavit filed by the husband goes to his seeking to vary the existing orders to effect a change of the residence arrangements of the parties’ two children who reside with their mother, pursuant to orders made on 17 October 2008 in this Court.

2. The children are [X] born [in] 2000 and [Y] born [in] 2003.  [X] is now 12 years of age and [Y] is 9 years of age. The evidence in the affidavit of the father sworn 28 May 2012 which goes to the contravention application before the Court this day is contained in paragraphs 33 to 36 inclusive. What in essence occurred, which resulted in the matter being before the Court, is that the mother discovered on 18 April 2012 that her daughter [X] was missing. 

3. The father admits the following.  That on 6 April 2012 his daughter [X] booked an air ticket from Melbourne to Adelaide to leave her mother’s home and travel to her father’s home, using her father’s credit card.  He says the booking occurred without his knowledge or consent whilst the child resided in his home for an earlier school vacation period.  [X] advised her father on 10 April 2012 what she had done.  The father therefore knew on that date, if not before, that [X] had booked a ticket to travel at the age of 12 from Melbourne to Adelaide by herself to ostensibly reside with him.  In the eight day period the father knew about the child’s intentions, the father did not contact the mother.  The father did not advise the mother of the child’s proposed flight.  He did not cancel it.  He did not tell his daughter not to take the flight but instead made arrangements for somebody in Melbourne, unknown to the mother, to drive his daughter to the Melbourne Airport.

4. The father deposed in respect of his arrangements, that on Thursday 12 April 2012 he spoke to a family friend who the children refer to as Uncle [first name omitted].  Rather than try and stop his daughter and to ensure her safety he:

   “arranged for a close family friend to ensure that she got from school to the airport safely instead of catching a taxi which she had threatened to do.”

5. That the father could think he was ensuring his daughter’s safety is indicative of a serious lack of judgment. That he could think that it was in the best interests of the child for her to move from her school grounds to the airport without notifying her mother, with whom she lived, of her intention to travel to Adelaide exhibits such a stunning lack of insight it is difficult to comprehend. It is breathtaking in its recklessness. The mother of course contacted the police to say that her daughter aged 12 was missing.  This was a frightening time for the mother. The police contacted the father whose own Counsel says in his plea submission, that the father was not forthcoming with information to the police initially and, only subsequently, did he provided information that his daughter was safe and with him in Adelaide.  The mother was left to endure considerable distress and fear for the safety of her daughter, as was her brother [Y]. 

6. The father says that what should occur in relation to these proceedings now, is that as he has pleaded guilty there should be no penalty applied; that he has already missed two weekends with his children; and that is sanction enough.  He will pay the mother the costs that she has generally incurred in attending yesterday when he mistakenly thought the proceedings were not listed, and today when they were again listed.  He has travelled from Adelaide for this hearing. A sanction must follow a contravention of this type.  It is a first proven contravention but it shows a serious disregard by the father of his obligations pursuant to court orders. Insightlessly, the father argued this was not a serious disregard of orders.

7. I am very concerned about [X] being in her father’s care when he has now over-held her on three occasions, first commencing in 2008. Hopefully, he will be able to restrain himself from campaigning against the mother on the next occasion he will spend time with his daughter, it being the third weekend of the third school term.

8. In conclusion, upon the Respondent admitting contravention of Orders of the Court without reasonable excuse, the Court finds that on the balance of probabilities the Respondent has contravened Orders of the Court made 17 October 2008 and has done so on 18 April 2012 in respect of four (4) counts. The Respondent’s contravention the Court is satisfied, showed a serious disregard of his obligations under the primary Order and pursuant to s.70NFA(2)(b) of the Family Law Act 1975 (Cth). The Court will now pronounce consequent orders.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date:  15 June 2012