Chapman and Hope

[2011] FamCA 970

FAMILY COURT OF AUSTRALIA

CHAPMAN & HOPE [2011] FamCA 970

FAMILY LAW – CHILDREN – Contravention application by mother – contravention of parenting order that children spend time with their mother - father found to have contravened orders without reasonable excuse – compensatory time ordered

Family Law Act 1975 (Cth) ss 70NEA(2) and 70NEB

APPLICANT: Ms Chapman

RESPONDENT: Mr Hope

FILE NUMBER: HBC 4998 of 2010

DATE DELIVERED: 26 October 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 28 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hurd

SOLICITOR FOR THE APPLICANT: Blissenden Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: In person

Orders

THE COURT FINDS

1. That the father has failed to comply with an order made by this Court on 29 April 2009, in that without reasonable excuse, the father:-

   (a)on 12 August 2011 at about 4.00pm at the B Café, Suburb C the father, without reasonable excuse, refused to allow the mother to spend time with the children D and E;

   (b)on 26 August 2011 at about 4.00pm at the B Café, Suburb C the father, without reasonable excuse, refused to allow the mother to spend time with the child D and E

   (c)on 4 September 2011 at about 5.00pm at the B Café, Suburb C the father, without reasonable excuse, refused to allow the mother to spend time with the child D and E; and

   (d)on 11 September 2011 at about 4.00pm at the B Café, Suburb C the father, without reasonable excuse, refused to allow the mother to spend time with the child D and E.

2. That this contravention is one to which s70NEA(2) applies.

3. Pursuant to s 70NEB the court makes the following orders:-

   (a)the time the children E born … 2004 and D born …2004 (“the children”) spend with the mother, where possible, commence by way of collection from the childrens’ school at the commencement of the relevant time, or if that is not avaiable at the Children’s Contact Centre or if that Centre is not otherwise available then the B Café, Suburb C.

   (b)the children spend the first part of the school holidays with the mother subject to orders made 29 April 2009 at the commencement of the Easter break and two mid year breaks or when the school term system changes the three mid year breaks and return to the father at the Contact Centre or B Café.

   (c)both parties be restrained from abusing, demeaning or belittling the other or members of the other parties family; and

   (d)the children spend compenstatory time for a period of eight (8) days with the mother over the Christmas/New Year school holiday period 2011/2012.  Such period to follow immediately from the time the children would otherwise spend with the mother over that holiday break.

4. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. The commencement time for the weekend orders provided in order 4(c) made
   29 April 2009 commence Friday 28 October 2011.

IT IS DIRECTED

1. The mother shall, within twenty four (24) hours inform the father in writing as to her current residential address and in particular where the mother will be staying with the children.

2. A transcript of the evidence of the father be taken out and placed on the court file.

3. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS FURTHER ORDERED

1. All outstanding applications be dismissed.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 4998 of 2010

Ms Chapman

Applicant

And

Mr Hope

Respondent

REASONS FOR JUDGMENT

1. Ms Chapman, on 11 October of this year, filed a contravention application which was listed before me on 18 October 2011.  At that time, the father, Mr Hope appeared in person and said that: he firstly acknowledged that he was personally served with the documentation; he admitted the four contraventions but asserted that there was reasonable excuse.  The father was unrepresented at the time and I adjourned the proceedings to the 26 October 2011 to enable him to obtain legal advice in respect of his claim that there was reasonable excuse in respect of his non-compliance with the order.  I was informed on the 18 October that under the existing orders the mother was entitled to spend time with the children over the weekend.

2. Mr Hope was ambivalent if not rejecting of compliance with that order.  In blunt and unambiguous terms I explained to him that he needed to do one of two things.  The first was to file an application for change of the orders if he had concerns about the wellbeing of the children under the current regime and that ought to be done by way of an application and an affidavit or alternatively comply with the orders.  I gave him until this morning to do so.  The matter came before me today and there was no appearance by Mr Hope.  Tendered in evidence and marked Exhibit M1 was a letter from the solicitor for the mother to Mr Hope dated 18 October 2011 and sent by security mail setting out that the matter was listed for today and setting out the thrust of the orders that I had made.

3. I requested that the solicitor for the mother contact the father and find out if there was any reason as to why he was not here.  I was informed, albeit not by her evidence, but from the bar table by a qualified member of the legal profession that he had spoken with Mr Hope and that Mr Hope said he had personal reasons for not being here today and that the children were not at school.  I have adjourned the matter to Friday of this week for the hearing of the contravention application.  I am concerned that the father is endeavouring to avoid these proceedings and I note in that respect that no notice was given to the mother, her legal practitioner, nor the Court that the father would not be here today.  He simply did not turn up.

4. I have directed that the father be notified by mail and by telephone of the return date on Friday.  I make it clear that on Friday if he is not here I am likely to deal with the contravention in any event and I am likely to consider what makeup contact or what makeup time ought be put in place, bearing in mind the absence of any application suspending the order and any evidence upon which any such suspension could be based.  I have also reserved the costs of the applicant having regard to the provisions regarding costs in respect of contraventions. 

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 26 October 2011.

Associate:

Date:              28 October 2011