Chapman and Hope (No 2)

[2011] FamCA 971

FAMILY COURT OF AUSTRALIA

CHAPMAN & HOPE (NO 2) [2011] FamCA 971

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

Family Law Act 1975 (Cth)

APPLICANT: Ms Chapman

RESPONDENT: Mr Hope

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: HBC 4998 of 2010

DATE DELIVERED: 5 December 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 5 December 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

1. At or about 3.00pm on 28 October 2011 at F School the father contravened an order of this court being paragraph 3(c) of the parenting order made 29 April 2009 and paragraph 3(a) of the orders made by the Family Court on 28 October 2011 in that he, without reasonable excuse, refused to allow the children E born … 2004 and D born … 2004 (“the children”) to spend time with the mother.

2. All outstanding applications be dismissed.

   IT IS DIRECTED

3. A transcript of my reasons and my comments be taken out and placed on the court file.

   IT IS CERTIFIED

4. 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. This is an application by Ms Chapman seeking a declaration in respect of an alleged contravention of a Family Court order made on 29 April 2009.

2. The proceedings relate to the parties’ two children, E, born in 2004 and D born the same day.  I note that both the children are now aged 7 and will turn 8 in April next year.

3. The mother had brought contravention proceedings prior to this application which was heard by me at this Court on 28 October 2011 and on that day I found that the father had contravened the order of 29 April 2009 on four occasions and made an order for compensatory time.

4. During the course of that hearing, on the morning of Friday 28 October 2011, I noted, both orally and in written form, that the commencement time for the weekend orders of 29 April 2009 were to be that day, that is, Friday 28 October 2011. 

5. These proceedings relate to an allegation that the children were not made available by the father to the mother later that day.  This application came before me on 4 November 2011, and it was not an issue that the children were not made available.  It was an issue as to whether there was a reasonable excuse.

6. The Court directed that the father file and serve any material upon which he wished to rely on or before Thursday 24 November, and that the mother file any material in reply on or before Thursday 1 December.  There is no issue as to service of the application, as far as I am aware.

7. The father indicated from the bar table today that he had applied for legal aid and that that legal aid had been refused on 24 November 2011.  I gave him leave to give oral evidence in relation to the matter and he, in fact, gave oral evidence, raising in essence three excuses. 

8. The first excuse was that he was in Court that day, although in cross-examination he conceded that the Court commenced at either 9.00 or 10.00 am on 28 October and that had finished within an hour or an hour and a half, and that by at least 12 o’clock on that day, he was free to go about his business.

9. The second was that he said that the mother had not provided an address which she was required to provide, although there is no evidence in relation to that before me today.

10. The third excuse was that the children were unwell that day.  It was open for the father to raise the issue as to whether the children were well or unwell, and there is a transcript on the Court file which I could have been taken to if the father had wished to do so.

11. The father relies upon a certificate by Dr G, which is Exhibit H1, which says that on 2 November 2011 she observed that E was unwell with the gastroenteritis and fever.  It was made very clear to Mr Hope on 28 October that the children were to commence seeing their mother that weekend.  They did not.

12. I am not satisfied in all the circumstances that reasonable excuse has been established, and as such I find the contravention established.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 December 2011.

Associate:     

Date:              5 December 2011