Carlson and Carlson

[2016] FamCA 677

FAMILY COURT OF AUSTRALIA

CARLSON & CARLSON [2016] FamCA 677

FAMILY LAW – CONTRAVENTION – Application by the mother alleging four counts of contravention of an interim order by the father – Where an order was made restraining the father from approaching the mother except in accordance with orders and from attending the former matrimonial home - Where one count of contravention was withdrawn - Where the father denies contravening the orders – Where the father asserts he had a reasonable excuse for contravention – Where the father was found not to have a reasonable excuse –– Where the father was ordered to attend a Parenting After Separation course

Family Law Act 1975 (Cth), s 70NAE

Carlson & Carlson [2015] FamCA 708
APPLICANT:	Ms Carlson

RESPONDENT: Mr Carlson

FILE NUMBER: NCC    1538 of 2015

DATE DELIVERED: 9 August 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 5 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duane

SOLICITOR FOR THE APPLICANT: Rankin Ellison Lawyers

COUNSEL FOR THE RESPONDENT: Mr Batey

SOLICITOR FOR THE RESPONDENT: Mark Graham Solicitor

Orders

IT IS NOTED

(A)That MR CARLSON has without reasonable excuse contravened an Order of this Court (Order 6) made on 12 August 2015.

IT IS ORDERED

1. That MR CARLSON must within 30 days contact Relationships Australia, enrol in, and complete in due course the first available Parenting After Separation program.

1. The Applicant wife shall file and serve within 10 days of the date of these orders written submissions in relation to costs of the Contravention Application.

2. The Respondent husband shall file and serve his written submissions in reply by Friday 2 September 2016.

3. The directions hearing listed before the Docket Registrar on Friday 12 August 2016 is vacated.

1. All outstanding matters are adjourned to 9.30 am on Friday 2 September 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: NCC1538/2015

Ms Carlson

Applicant

And

Mr Carlson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Carlson alleging that an order affecting children, order 6, made on 12 August 2015 in this Court has been contravened by the respondent, Mr Carlson.

2. The matter came for hearing before me on 5 August 2016 in a duty list.

Application

1. The application was filed on 6 July 2016, supported by two affidavits, by the applicant and by Ms P.  Order 6 is as follows:

   [Mr Carlson] is restrained by injunction from approaching Ms Carlson or the children  [B] born … 2002 and [C] born … 2004 except in accordance with these Orders and is restrained from attending the property at [H Street, Suburb G].

The Alleged Contraventions

1. Four contraventions of that order were alleged.

2. The fourth allegation, relating to events on 24 June 2016, was ultimately not pursued.  The affidavit and oral evidence of Ms P is, therefore, not relevant.  Four other affidavits prepared on behalf of the respondent by Ms Q Carlson, Mr R Carlson, Ms S and Mr S were, as a result, not relied on and can be returned unfiled.

3. Accordingly, there were three allegations to be dealt with.  They are that Mr Carlson, without reasonable excuse, attended the property at H Street, Suburb G on:

   a)27 May 2016 at 3.27 pm;

   b)29 May 2016 at 5.07 pm;

   c)13 June 2016 at 6.30 pm.

Evidence

1. The respondent denied that he attended the property without reasonable excuse.

2. He denied that he attended the property at all.  This denial was founded on a submission in relation to the meaning of the words “attend”.  It was submitted that “attend” equated to “enter into or enter upon”.  The respondent in his affidavit referred to driving in his car to the property to collect and deliver the children but argued that, because his vehicle was substantially, if not entirely, parked on the council owned portion of the concrete driveway into the property, that he was not “attending” the property. 

3. The respondent annexed to his affidavit[1] photographs of the property, including an aerial photograph.  He further annexed the surveyor’s report, dated 10 August 2001, with diagrams and a plan.  Marked on the plan with the respondent’s initials “SAC” was the position of his vehicle.

   [1] Affidavit of the father filed 5/08/2016, Annexure A

4. I do not accept the submission about the meaning of “attend” and, accordingly, do not accept that the father did not “attend” the property.  He arrived in his car, parked at the end of the driveway for the purpose of collecting the children.  He was present at the property for a purpose, that purpose being to collect the children or deliver them.  He attended the property.

5. The question then becomes did he attend without reasonable excuse.

6. The first allegation was the commencement of a period of weekend time.  There was no exact explanation for why the children were not collected from school, but I infer that it related to the father’s wish to collect additional gear that the children required.  The second contravention was the father returning the children himself at the end of that weekend.  Accordingly, on 27 May being the Friday and on 29 May being the Sunday.

7. The third incident was the father returning the children himself at 6.30 pm on the Monday of a long weekend, on 13 June 2016.  The father again drove into the driveway to deliver the children.

8. Given the lengths that the father went to, to mount his argument about the driveway and his position on it, it could have been said to be arguable that he did not understand the obligations imposed by the order he was bound by.  That is one possibility for a reasonable excuse.

9. On the balance of probabilities, I consider the father did understand.  He was represented by solicitor and counsel at the interim hearing which gave rise to the relevant order and has been legally represented since. 

10. The reasons for judgment in that hearing provided the basis for the order:

    The dispute came in the context of six months of separation under the one roof, with all the likely tension and difficulty associated with that situation.  My impression is that the mother was monitoring the situation closely and left with the children when simmering conflict flared.  She reported her intention to police. [2]

    It is essential that the father stay away from the mother and the children, other than in accordance with the Orders given recent events, but it would be appropriate for them to be collected from their schools by the father and for a friend or family member or well-known friend to deliver them home to the mother on Sunday evening.[3]

    As previously stated, there is an Order restraining the husband from coming near the mother or the children other than in accordance with the Orders.  Recent exposure to conflict has sensitised the children and the risk of further exposure to conflict has the capacity to do damage to their relationships with both parents, but especially the father, who at this time they are inclined to hold responsible for the events of December 2014.[4]

    [2] Reasons for Judgment dated 12 August 2015, par 14

    [3] Reasons for Judgment dated 12 August 2015, par 38

    [3] Reasons for Judgment dated 12 August 2015, par 46

11. There was also a request for exclusive occupation.  However, even if he had not understood, he ought not be excused in respect of the contravention, given Order 4 of the orders say this:

    That the children spend time with the father each alternate weekend from Friday after school until Sunday at 5.00 pm with the father to collect the children from school at the commencement of the period and cause a family member or known family friend to return the children to the home of the mother at the conclusion of the period ...

    and followed with when the order was to commence.

12. The point of the order was to keep the parties away from each other at changeovers to prevent future belligerent conduct in front of the children at changeovers.

13. Order 6, the order in question here, protects the children. 

14. Section 70NAE is not limited to the bases for reasonable excuse set out there. That has some significance where the order in question does not relate to parental responsibility, time or communication, but is an order in relation to children.

15. To some extent, the father relied on convenience for the children with the bags and that it was easier for them and him to come to the home in that way.  This cannot be accepted as a reasonable excuse.  It might have been had there been evidence of an improved relationship between the parties.  Quite the opposite is the evidence before me.  There is apparently still extreme antipathy.  There are photographs on both sides in the evidence; with the father striking a pose in the driveway; and the mother taking many photographs, this in the presence of their children.

16. It was exactly this kind of conduct that the orders were directed at.

17. There is an appeal pending by the father against the interim orders, and there is evidence before me that he is still emotionally distressed about the order for the mother to have exclusive occupation with the children of the home. 

18. Further, there are annexures[5] to the mother’s affidavit raising her objection to the father coming to the property and specifically referring to compliance with Orders 4 and 6.

    [5] Affidavit of the mother filed 6 July 2016, Annexures B, C and F

19. These boys, aged 14 and 12, themselves know and are anxious about the conflict between their parents, which has been on display in this evidence.

20. It is reported in the mother’s affidavit[6] that one of the boys told the mother that he had asked the father not to come onto the property.  Whether or not he did, it is a reflection of the concern of the children.

    [6] Affidavit of the mother filed 6 July 2016, par 41

21. Accordingly, I find that the father has contravened Order 6 on the three occasions alleged.  Having said that, it is far from serious offending, but was provocative and did provoke.

Penalty

1. In terms of penalty, the father is directed to attend a ‘Parenting After Separation’ program run by Relationships Australia or any other suitably qualified organisation.

Conclusion

1. It appears to me that the father has been focused on his right to attend the former family home and his belief that the mother was not apparently fearful of him.  The point that the father is missing is that the children probably still dread changeover scenes and still need the protection of the orders to avoid those scenes.  Of course, the mother could have remained inside the home and not come out to take photographs, but it has to be said the father should have complied with the orders. 

2. To be clear for the future, the father is not to come to the property at all, not into it, not into the driveway and not to park outside.  He is to stay away and use friends and family members, as directed by the orders.

3. The ‘Parenting After Separation’ course is designed to assist parents to understand the perspective of children and to shift the focus of parents from parental rights to the needs of the children, and the order is made for that reason. 

4. Orders are made accordingly.

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex tempore on 9 August 2016.

Associate: 

Date:  16 August 2016