Calder and Kennard

[2013] FamCA 680

FAMILY COURT OF AUSTRALIA

CALDER & KENNARD [2013] FamCA 680

FAMILY LAW – Contravention – Reasonable excuse.

Family Law Act 1975 (Cth)

APPLICANT: Ms Calder

RESPONDENT: Mr Kennard

FILE NUMBER: MLC 2897 of 2008

DATE DELIVERED: 10 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 May 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the contravention application filed 8 April 2013 by the mother is dismissed.

2. That the reasons for judgment this day be transcribed and be made available to the parties.

3. That the initiating application of the father filed 7 February 2013 be adjourned to a date to be fixed for hearing before a judge on a final basis.

4. That the mother file and serve a response to the father’s application by 4.00pm on 31 May 2013.

5. That the docket registrar (Registrar Kaur) examine the progress of the file and bring the matter to the attention of the case management judge at the next available docket meeting after 31 May 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calder & Kennard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2897 of 2008

Ms Calder

Applicant

And

Mr Kennard

Respondent

REASONS FOR JUDGMENT

1. On 8 April 2013, Ms Calder, to whom I shall refer in these reasons as the mother, filed an application seeking that Mr Kennard, to whom I shall refer in these reason as the father, be dealt with for breaching orders of the Court which I note were consent orders between the parties in February 2012.  Like many applications for contraventions, particularly where litigants either choose or are forced to do things themselves, the paperwork is often difficult to follow and this case is not different. 

2. It would seem that the pathway by which this case came before the Court was that the mother filed an application for contravention on 17 December 2012, alleging a breach that had occurred on 15 December 2012, returnable in the Federal Magistrates Court on 12 February 2013.  Around that time, the father filed an application initiating proceedings to alter the extant parenting orders. 

3. When the matter came on before Curtain FM on 12 February 2013, his Honour transferred the whole of the proceedings to this Court. 

4. On 11 May 2013, the application for parenting orders, but also the contravention, came before Macmillan J.  Both parties on that day were unrepresented.  Her Honour heard the dispute and reserved her judgment, and delivered the reasons in support of the orders that she made on 6 May 2013.  The order of Macmillan J on 6 May was simply that the mother’s application for the father to be dealt with for contravention be dismissed. 

5. The unusual feature of that background is that the contraventions, to which I shall refer in a moment, follow on from the contravention that brought the case to Court on 11 April.  Indeed subject to some minor issues, the circumstances are identical.  The dilemma for me is that her Honour made certain findings, to which I shall refer in a moment, and it is difficult for me not only to depart from that view.  Were I not aware that what her Honour’s view was about the outcome, I would probably take the same course of action that her Honour took.

6. It is trite to say that these cases are sad.  This was a case where the children originally lived with their mother.  They are now entering, in one child’s case, teenage years and the other is already in teenage years; the window of opportunity for significant involvement in their parents’ life is rapidly closing.  I turn then to what this is really all about. 

7. In the application filed on 8 April 2013, there are 14 allegations.  The father denies all of the allegations.  In reality, what he says is that he has a reasonable excuse.  In respect of each of those weekends, the children did not spend time with their mother according to the orders.  So rather than concentrate on what exactly happened on those days, the question is:  why did it not happen?  The evidence in this case is identical to that in the case which was heard by Macmillan J. 

8. Before dealing with those, however, it is important to look at a couple of the allegations that are slightly different from the majority.  Number 13 of the contraventions alleged that on 3 April 2013, the father refused to facilitate telephone contact between the children and, I think it really means their mother, although it does not say that.  I was unable to find anything in the orders that indicated that that had to occur. 

9. The same problem arises with item number 6 of the 14 allegations, which relates to a date on 26 November 2012.  Leaving aside the fact that that precedes the matter that was before Macmillan J, again the order is not clear, at least in relation to the nature of what needed to occur about telephone contact.  Suffice to say therefore, it is not possible for me to make any orders other than to dismiss numbers 6 and 13.

10. The bulk of the other contraventions, save for one other one, relate to quite specific weekends.  Each of the allegations is that the father, without reasonable excuse, refused to allow the mother to spend time with the children, meaning time within the orders.  The only other allegation that is slightly different is number 12, which says that on 29 March, the respondent without reasonable excuse, refused to allow her to drop off colouring pages and Easter card to the children.  There was nothing in the order in relation to that.  That allegation must also fail. 

11. I turn then to what this is really all about.  It is clear that in 2012, the parties reached agreement and orders were made for the children to be reintroduced into their mother’s life in a significant way.  Such was the nature of the relationship between them that they needed assistance from an expert.  The order was silent on who that expert was to be, but it seemed common ground that the person was to be nominated by the independent children’s lawyer who was then in the case.  Here, the nominee was Ms B. 

12. Ms B was working with the parties through the build up process and alternate weekends between the mother and the children were occurring.  Something went dramatically wrong in December 2012, culminating in the application before Macmillan J, alleging the breach of 15 December 2012. 

13. Subsequent to that weekend, the parties had contact in one form or another with Ms B.  I have been handed an email that Ms B wrote to both parties on 14 December 2012.  This related to the incident which was the breach that Macmillan J was dealing with.  I quote from that email.  Ms B wrote:

    My current view is the teething problems of the children’s weekend time with [Ms Calder], need to be worked out with [Ms Calder] and the children.  I would have preferred to have this occur with [Ms Calder] in attendance at the appointment on 4 December 2012, unfortunately [Ms Calder] was not able to attend, leaving the issue between the children and [Ms Calder] unresolved.  That appointment is now scheduled for 22 January 2012.  This is my earliest availability.  At this point, given the issues between the children and [Ms Calder] are unresolved, I do not believe it is in the children’s best interests to attend weekend time with their mother until that appointment occurs.

14. That advice triggered the denial of time, as set out in the orders, between the mother and the children but it would have been short-lived, presumably, because there was to have been a meeting on 22 January 2013, to address that issue. 

15. For whatever reason, and it seems to me it does not now matter, the mother did not attend Ms B on 22 January 2013, but the father and the children did.  The father’s perception of what happened on 22 January was that the children articulated their desire not to spend overnight time, and if that is what indeed did happen, and it is the only evidence I have, then it is consistent with the view of Ms B, as I have already set out, that there is still an unresolved issue between the mother and the children.

16. The father was carrying out the advice given by Ms B.  With the meeting on 22 January not taking place, there seems to have been little follow up with Ms B, until an email on 13 March 2013 from the mother to Ms B.  This was a prelude to the hearing on 11 April before Macmillan J.  The mother wrote that the father was refusing to facilitate overnight contact.  She went on to say that the girls and she had spoken, and that they would like the overnight contact and to spend some time with her during the school holidays for a week. 

17. The mother then asked Ms B for some suggestions as to how to help the girls and that she have some time before the hearing on 11 April.  The mother pointed out she did not have the funds to attend, but would appreciate any suggestions.  On the very same day, Ms B wrote back: 

    You could email [Mr Kennard] –

    (I interpolate here, that is the father):

    ...as you had done in the past, mentioning the girls have expressed this desire to you, and ask him to sit down with the girls and revisit the topic with them.  The girls may feel able to raise the idea of overnight time and school holidays with you, with their father and stepmother.  You could seek mediation via a mediation centre and by bringing the girls in the mediation session, for example, parent-child mediation.  I’m happy to provide a session for the girls, you and [Mr Kennard], but as usual, you would need to share the costs.

    The matter went no further.  There may have been other correspondence to Ms B, but there is no further advice that she has given.

18. The father’s position, as indicated in evidence, is that he adopted the view as set out in the email from Ms B of 14 December, and the further advice that he received on 22 January 2013.  Nothing from his perspective has changed, and therefore, he is simply following what the girls and Ms B talked about.  That, according to his evidence, is still what permeates the lives of these girls.  The mother had the opportunity to cross-examine the father for a number of hours, and although she has mentioned that she has other evidence, none of it was presented in any form that the Court could scrutinise, nor indeed could the father respond to it. 

19. There is nothing in the father’s evidence today that indicates that his position has changed from the case that he put before Macmillan J.  There is no reason for me to disbelieve what he says.  He indicated very clearly that he thought there should be contact between the girls and their mother, and he was happy to participate in whatever needed to take place to ensure that what needs to be done, will be done.  He clearly indicates that there is a problem and it is not being sorted out by the mother. 

20. In paragraph 32 of her Honour’s judgment, which was only released some few days ago, she made a prophetic comment. She said that whilst the contravention applications continue, the parties are getting further away from the getting a determination of the real issue as between them. Whilst the completion of a contravention application activates Part VII of the Family Law Act, the problem I have is that the father filed an application in 2013 seeking to vary the orders, but the mother has never responded to it.

21. Her view is that she has had legal advice and has been told what to do, all of which mystifies me.  The reality is there is a parenting dispute here, and the approach that she is taking is anything but trying to sort the matter out.  She made that very clear in her cross-examination of the father, and whilst I have some sympathy for the position, the Court does not have the capacity to simply solve the problems if the material is not before it.

22. In her Honour’s judgment at paragraphs 7 to 10 of the reasons just released, she set out not only the law, but also the approach that should be taken.  She made reference to the contravention on 15 December 2012 and in very clear terms, set out the background of this case in paragraphs 1 to 6 of those reasons.  There is nothing further that I can say about the background nor about the law, with which I agree.  In paragraph 11 and thereafter of those same reasons, her Honour set out the facts of why the case was before the Court and how it was being argued.  As I have earlier indicated, it seems remarkably similar, if not identical, to the case that I have to hear today, but with a lot more contravention allegations.  They are all the same. 

23. In paragraph 31 of her Honour’s reasons, she found that on the facts, the father had a reasonable excuse.  Having regard to the identical nature of the facts, the identical nature of the advice given by Ms B upon which the father has relied, and the findings of fact which, as I have said, I would probably agree with in any event; there is little reason for me to do anything more than say that I agree with what Macmillan J said in that I have to find that the father had a reasonable excuse for not providing the children according to the orders that were made in February 2012.  On that basis, the application of the mother must be dismissed.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 May, 2013.

Associate:

Date:  17 July 2013