Chalk and Camden - [2008] FMCAfam 704

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHALK & CAMDEN

[2008] FMCAfam 704

FAMILY LAW – Contravention – no reasonable excuse.

Family Law Act1975

Applicant:

MR CHALK

Respondent:

MS CAMDEN

File number:

BRC3435 of 2008

Judgment of:

Jarrett FM

Hearing date:

20 May 2008

Date of last submission:

20 May 2008

Delivered at:

Brisbane

Delivered on:

20 May 2008

REPRESENTATION

Mr Chalk appears on his own behalf

Solicitors for the Respondent:

Barry & Nilsson

ORDERS

That this matter be adjourned to 9.30am on 23 May 2008 in the Federal Magistrates Court of Australia at Brisbane.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC3435 of 2008

MR CHALK

Applicant

And

MS CAMDEN

Respondent

REASONS FOR JUDGMENT

Ex tempore

This is an application for contravention of certain parenting orders that were made by consent in the Sydney Registry of the Family Court of Australia and, in particular, para.2 of those orders, namely:
That the parties have joint parental responsibility for the long term care, welfare and development of their children, [X], who was born in 1997 and, [Y], born in 2000.
There was a hearing and judgment given by Lindsay FM in this matter about parenting issues in mid 2006. Those orders were set aside upon appeal and remitted for fresh determination. FM Lindsay determined that matter again in June, 2007, but the order set out above remained undisturbed. For present purposes the relevant application before his Honour was the mother's application to have the children's school changed. They were then, at that time, as I understand the evidence, attending the [S] School. The mother wished them to change schools, the father did not. The application was heard and determined and the mother's application was refused.
The father says the mother has breached the obligation to exercise parental responsibility for these children jointly because he says she has now, without his consent, changed the children's school from [S] to [P].
It is worth recording that the mother agrees that the parties must consult about schooling issues concerning the children; that she had made such an application in respect of schooling that was opposed by the father; and his opposition was successful. But she says, nonetheless, I can infer from certain circumstances that the father has in fact consented to the change of school for each of the children. It follows from her submission, it seems to me, that his consent to the change of schools is necessary for there to be a proper exercise of joint parental responsibility for these children.
I am satisfied of the following matters beyond reasonable doubt. Firstly, that there was a hearing before Lindsay FM in the middle of 2006 where the mother's application for a change of schools for both children was heard and determined against her. Secondly, that she presented a form to the husband in November, 2006 which may have been a form of application for admission for the child, [X], to The [P] School. There is in evidence, exhibit 1, documents which purport to be signed by, and which the husband accepts were signed by him and which, on their face, seem to have something to do with The [P] School.
There is also, now as exhibit 2, a document headed “Application for Admission” which seems to relate to the child, [Y], which purports to be signed by the husband as well. There are considerable difficulties with the documents in a number of respects. First of all they are photocopies, and whilst the Evidence Act permits the use of photocopies, the copies themselves are very unclear. Secondly, an issue has arisen about the genuineness of the husband's signature to the form as it relates to [Y]. He points out the document is a copy and that he has no recollection, in fact, he emphatically denies that he signed a form relating to [Y] and he has concerns about the authenticity of the copy. He made a suggestion that perhaps his signature has been copied.
Those issues, of course, could be dealt with much more efficiently had the original forms been available and, of course, they could have been available through subpoenaing the school records and having the documents produced but, as it is, I have the photocopies which are difficult to read and in respect of at least one of them, the genuineness is called into doubt.
But I am satisfied, beyond reasonable doubt, that the husband signed one set of forms, perhaps entitled Application for Admission, relating to [X]. I am also satisfied beyond reasonable doubt that at the time the forms were signed he did so on the basis that the forms did nothing more than reserve a place for the child, [X], at The [P] School which the parties might at some stage in the future, if they agreed upon it, take up for the child. I accept his evidence that that was the basis upon which the children’s mother put the document to him for signature.
Correspondence from at least early in 2007 corroborates the father’s understanding. On 19 January, 2007 he sent an email to the mother via a person called Mr K. It was not suggested to Mr Chalk that that email did not make it to the mother in these proceedings or that it was sent to an inappropriate address or the like. In that email he says this:
I am still confused about school issues. Can you confirm that you are not seeking to remove either of the boys from [S] School this year? Thanks. We do need to discuss which school might be best for the boys at some future date of course.
He followed that up with another email on 31 January, 2007. It is worth repeating in its entirety:
“To what event/events is your phrase 'as discussed' intended to refer? Is this empty reference just another attempt to deceive the Courts because, as you well know, following the Court's recent rejection of your application to alter the children's existing schooling arrangements we have only discussed the children's schooling once when you absolutely assured me that my signing some documentation relating to [P] had no implications whatsoever for the children's actual schooling but was required to obtain a place at some future date should it be agreed that the children were to attend that school. It is utterly irresponsible to continue to dupe or disregard me entirely in respect of the children's development and welfare in this fashion, more especially with someone with considerable educational experience and expertise one cannot avoid concluding that your object is to continually ferment discord without justification or proper regard for the consequences.”
The mother ought to have been in no doubt by reason of those two emails that the father was not consenting to the children moving from [S] to the [P] School. Those emails are consistent with the father's evidence in this case that the document signed by him in November 2006 was signed as a reservation of a spot for [X] at some time in the future. I think I can take judicial notice of the fact that many people enrol their children in private secondary schools at a very early age to secure a place when they become of age to attend that school.
Not to be deterred, the mother changed [X]’s school and later in 2007 changed [Y]'s school, both from [S] School to The [P] School. By an email of 8 October, 2007 the father again took up the cudgels in respect of this matter and although I will not set out the email at length, he makes it clear in that email that he does not agree with the change of schools but was prepared to see how the boys went at the school.
He described his approach in submissions as that of a responsible parent. I agree. It would have been entirely untoward for him at that stage to take up an unseemly argument with the mother and attempt to undo what she had already done.
Section 70NAC of the Act defines the meaning of the word "contravened" in the phrase "contravened an order" as it is used in the Act. A person is taken for the purposes of the Act to have contravened an order under the Act affecting children if, and only if, where the person is bound by the order, he or she has intentionally failed to comply with the order or make no reasonable attempt to comply with the order or otherwise he or she has intentionally prevented compliance with the order by a person who is bound by it or aided or abetted a contravention of the order by a person who is bound by it.
It was not suggested in submissions that the mother did not know that she was bound by the order that the father now alleges has been breached. I am satisfied, beyond reasonable doubt, that she has contravened the order. I am satisfied that she has contravened the order because it was clear that the father was not agreeing to the children changing school at any time, that the form proffered to him was signed on the basis upon which she proffered it, namely, that it was to reserve a position at some time in the future at The [P] School for [X], and I am satisfied that she intentionally failed to comply with the order because subsequently she changed schools, [X] at the commencement of 2007 and [Y] subsequently at the end of 2007 in circumstances where she knew:
a)that an application to the Court for that very purpose had failed; and
b)the father did not consent to such a change.
I am satisfied that she has contravened the order. I am not satisfied that there is any reasonable excuse for contravening the order.
I propose that you collect the children from school now. That they be brought to the Court for the purposes of being interviewed by a family consultant who will then provide an oral report to the Court as to the children's wishes about their school.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Acting Deputy Associate: T Lewis

Date: 3 July 2008