C and P
[2000] FMCAfam 4
•21 July 2000
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & P | [2000] FMCA fam 4 |
| CHILDREN – Contact – Best interests – Orders – Contravention – Enforcement of Orders – Confusion over arrangements does not amount to intentional failure to comply with order |
| Applicant: | D J C |
| Respondent: | M R P |
| File No: | ZP346 of 2000 |
| Delivered on: | 21 July 2000 |
| Delivered at: | Parramatta |
| Hearing Date: | 19 July 2000 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mrs Evans |
| Solicitors for the Applicant: | Macquarie Legal Centre, PO Box H117 Harris Park |
| Counsel for the Respondent: | Mr Maddox |
| Solicitors for the Respondent: | Jenner Solicitors and Attorneys |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP346 of 2000
| D J C |
Applicant
And
| M R P |
Respondent
REASONS FOR JUDGMENT
Application
This is an application to enforce the terms of a contact order made by the Local Court of New South Wales at D on 10 January 1997, as modified by an order of the Local Court of NSW at Wellington on
18 December 1997. The Applicant complains that on three occasions the Respondent has contravened the contact orders by failing to make the child of the marriage, C, born 13 March 1993, available for contact.On 19 July 2000 I found that a prima facie case had been made out in respect of the three allegations.
Background
It appears that the history of contact between the parties has been rather chequered since the original orders were made by consent in D on 10 January 1997. The order made by the Wellington Local Court on 18 December of that year appears to have been made ex parte, as it requires the Respondent within 4 days of service of the order on her to furnish her address and the time and place where the child may be made available for contact. In addition, there have been long periods of no contact, and correspondence between the parties’ solicitors about changes to contact arrangements, both sought and refused.
There appears to be no doubt that the orders made in 1997 are overdue for substantial revision. Neither still resides in the Central West of NSW. The Applicant now lives in the Sydney suburb of E P, and the Respondent now lives in another suburb of Sydney. The Applicant does not know, and does not wish to know, her address, nor does the Respondent want him to know where she lives. They communicate by telephone, not always successfully, or by solicitors’ letters.
The substance of the orders is that the Applicant should have contact with C for half of each school holiday period (except for the Christmas holiday period), and each alternate weekend. These arrangements are relatively simple, except that the school holiday contact is complicated by the stipulation that the contact should be for the first half of the school holidays one year and the second half of the school holidays the next year. No doubt this arrangement seemed like a good idea at the time.
Quite obviously, the arrangement that the collection point for the child should be the D Police Station has no longer suited either party, and for some time the collection point has been the Police Station at Manly.
The alleged breaches
The Applicant claims that the Respondent breached the orders on three occasions:
a)By not making C available for school holiday contact at Easter;
b)By not making the child available for contact on the weekend of 6 May 2000; and
c)By not making the child available for contact on the weekend of 3 June 2000.
There was no school holiday contact over the Easter holidays because the Respondent had made arrangements to go on holidays with the child during the first week, when the Applicant wanted to exercise contact. She left a note for him in the child’s schoolbag saying that C would not be available the first week, and offering contact from Tuesday 25 April to Tuesday 2 May 2000.
Mr Maddox, counsel for the Respondent, conceded that Saturday
6 May and Saturday 3 June 2000 were the correct days for alternate weekend contact. There was no dispute to the Applicant’s evidence that on those two days he went to the pick-up point at Manly Station, and the child was not there.
The Respondent gave evidence to the effect that she believed that the Applicant’s contact time would have been the second half of the school holidays, as the orders say clearly that the holiday contact should alternate. She knew on this occasion that he was not happy about contact being the second half of the school holidays, and she arranged a holiday with the child for the first part of the holiday period. She communicated this to the Applicant by putting a letter into the child’s schoolbag.
In cross-examination, the Respondent admitted that she in fact booked a holiday for the first week of the school holidays and part of the second week. She offered the period 25 April to 2 May 2000, which actually clashed with school time for its last two days. Her explanation of this unilateral decision was:
“If he wanted it changed he could have voiced his opinion, I would have been quite flexible. The letter may have said that, but it was intended for him to have the second week”.
It is certainly clear that the arrangement was not in terms of the order, and, indeed, the Applicant gave evidence that he was not able to avail himself of that arrangement. The Court has already found that there is a prima facie case in respect of this alleged breach.
The relevant law
Section 112AD(1A) of the Family Law Act 1975 makes it clear that:
“If:
a)A court with jurisdiction under this Act is satisfied that a person has contravened a residence order, a contact order or a specific issues order; and
b)The person does not prove on the balance of probabilities that he or she had a reasonable excuse for contravening the order.
the court may, subject to subsection (5), by order, take any action specified in subsection (2) that the court thinks appropriate.”
Contravention of an order is defined by Section 112AB(1)(a):
“A person shall be taken for the purposes of this part to have contravened an Order under this Act 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.”
The fact that a prima facie case has been made out does not necessarily mean that a person has contravened the order and the only defence left to them is proving on the balance of probabilities that the person had a reasonable excuse. These proceedings are quasi criminal, albeit that the standard of proof is the civil standard, and Section 112AD(1A) requires the Applicant to prove the contravention to the civil standard. It is always open to a Respondent to bring evidence with the intention of persuading the court that, notwithstanding the finding of a prima facie case, the totality of the evidence would not satisfy the Court that the contravention had been made out. Unless the contravention has been proven, the Respondent has no need to prove that he or she had a reasonable excuse for contravening the order.
In this case, there is a background of changed arrangements and lack of contact for one reason or another. The parties’ methods of communication have been less than perfect, to say the least, and it is not surprising that confusion has resulted.
In respect of this allegation, I am not satisfied that the Respondent intentionally failed to comply with the Order. She appeared to be of the genuine belief that the first half of the school holidays was her half, even though she planned to be away for longer than a week. She did attempt to communicate with the Applicant by means of the note in the child’s schoolbag, which is not a reliable method. She should also not have assumed that the Applicant’s silence indicated his consent. Nevertheless, I am not satisfied on the balance of probabilities that the Respondent made no reasonable attempt to comply with the Order, and I find that this particular complaint, the first of three, has not been made out.
Alternate weekend contact
It has already been conceded that the weekends of Saturday 6 May and 3 June were the appropriate ones, and there has been uncontradicted evidence from the Applicant that he made his way to Manly Police Station on those days, but the child was not available for contact. G, a male friend of the Respondent, gave evidence that he had taken the child to the meeting point on several occasions, and on two of those occasions the Applicant was not there. There was no evidence that those two occasions were 6 May or 3 June 2000.
The Respondent said in her evidence in chief that after the school holidays she did not know what the next contact weekend was. She was distracted over the May/June period because she had to see a psychiatrist over a pending matter in the Victims Compensation Tribunal, she had changed residence and started a new job. As a result, contact did not take place.
She wrote a letter in early July to the Applicant’s present solicitor, Mrs Evans, and his previous solicitor, Mr Baker. The letter to Mrs Evans, received on 5 July 2000, was tendered in evidence on behalf of the Respondent and forms Exhibit 5. The relevant parts of the letter are as follows:
“I am writing to let you know that I am not keeping to the access orders due to the fact that I have recently relocated. I have started a new job and my daughter C has started a new school. This has taken some readjustment. I am willing to re-initiate access and believe that this matter would be better for C to be dealt with and settled out of court.”
I am satisfied that this document contains a clear admission of a contravention of the contact orders over the relevant period. Furthermore, the letter makes it clear that the Respondent understood the obligations of the order, so she cannot rely on the provisions of section 112AC(2) to establish the reasonable excuse of not understanding the obligations of the order.
Counsel for the Respondent submitted that she had the reasonable excuse of a belief on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person, as provided by section 112AC(4). The letter which forms Exhibit 5 makes no mention of such a belief, and the only other reference to a belief based on the Applicant’s consumption of alcohol comes from Exhibit 3, a letter from the Respondent’s then solicitors, Bolzan and Dimitri, to the Applicant’s current legal advisers, the Macquarie Legal Centre, dated 14 April 2000. In this letter, a complaint is made that the Applicant “has been drinking alcohol in front of C and taking her to a pub”. The letter threatened further proceedings in the Family Court, which never eventuated.
The evidence clearly shows that the Respondent knew how to get in touch with the Applicant about contact (a faxed copy of the letter forms annexure D to his affidavit). There was no contact in May or June. The reference to the Applicant’s drinking was not followed up by any action to vary the contact orders.
I am satisfied that the Respondent contravened the contact orders on two occasions, by not making the child available for contact on 6 May and 3 June 2000. I am not satisfied that a reasonable excuse has been made out, either under subsections (2) or (4) of section 112AC of the Family Law Act 1975.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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