Charles and Mensah

[2011] FamCA 381

FAMILY COURT OF AUSTRALIA

CHARLES & MENSAH [2011] FamCA 381

FAMILY LAW – CONTRAVENTION – Breach of orders by failing to make child available

Family Law Act 1975 (Cth)

APPLICANT: Mr Charles

RESPONDENT: Ms Mensah

FILE NUMBER: MLC 6231 of 2010

DATE DELIVERED: 16 May 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15 May 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the respondent is found to have breached the orders of the Court on 23 August 2010 by failing to make the child of the marriage available to the husband on 20 February 2011.

2. That the said breach is declared to be a breach under sub-division E of Division 13A of the Family Law Act 1975 (Cth) (“the Act”).

3. That all other allegations in the application for contravention filed 29 March 2011 are dismissed.

4. That pursuant to s 70NEB(1)(c) of the Act, the substantive proceedings for parenting orders as between the parties are adjourned before the Honourable Justice Dessau on 10 June 2011 at 11.00am for a first day of hearing.

   And the parties’ attention is drawn to the memorandum attached to this order concerning that hearing.

5. That until further order, paragraphs 1(a) of the orders made on 23 August 2010 is discharged.

6. That until further order, the husband spend time with the child J born … June 2010 as follows:

   (a)    on each Wednesday from 4.00pm until 6.00pm commencing on 18 May 2011;

   (b)    from 9.00am until 2.00pm on Saturday 21 May 2011 and every second Saturday thereafter; and

   (c)    from 9.00am until 2.00pm on 29 May 2011 and every second Sunday thereafter.

7. That the husband file and serve an amended application with the precise orders that he is seeking, such application to be filed and served no later than 4.00pm on 27 May 2011.

8. That the wife file and serve an amended response with precise orders that she intends to seek, such response to be filed no later than 4.00pm on 3 June 2011.

9. That the mother pay the father’s costs fixed in the sum of $1000, such sum to be paid at the rate of $40 per fortnight with the first of such payments to be made on 1 June 2011.

10. That the reasons this day be transcribed.

11. That 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 that publication of this judgment under the pseudonym Charles & Mensah is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 6231 of 2010

Mr Charles

Applicant

And

Ms Mensah

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Mr Charles on 29 March 2011.  I shall refer to him as the applicant.  Ms Mensah is the respondent. 

2. Mr Charles alleged that an order made in this Court was breached.  The order that is relevant for the purposes of these proceedings is that which was made on 23 August 2010.  On that day all parties appeared represented before the Senior Registrar.  It was not a consent order.  There had been a previous order made only a month before and the Senior Registrar varied it. 

3. The child who is the subject of that order is J who was born in June 2010.  J on 23 August was only two months old.  The Senior Registrar found that it was in the best interests of J that Mr Charles have time with her every Tuesday and Thursday for two hours in the evening, each Saturday for two and a half hours in the afternoon and each Sunday for two and a half hours, also in the afternoon.

4. There were then other orders made on 23 August relating to the handover point and also requirements in relation to the feeding of a very young baby.  The relationship between the parties is nothing short of a disaster.  Parents in a functional family with a very young baby, no doubt find it difficult enough to meet the needs of their child but when the parties live in separate houses and are completely dysfunctional about communicating with one another, it is perhaps not surprising that it was only a question of time before a problem emerged.  It emerged in this case predominantly because of arguments about whether J was in a condition to go with her father. 

5. The application seeking that the Court deal with the contravention had a number of allegations.  In the end, only four of those were pursued.  They concerned the denial by the mother of the father’s time with J.  The relevant dates were 7 and 8 August 2010, 23 October 2010 and 20 February 2011.

6. Having heard the evidence of both parties, I am satisfied that there is no basis to make any orders in relation to 7 and 8 August because, for whatever reason, the father did not attend at the relevant time to collect the child. 

7. Before dealing with the facts, it is important to look at the legal issues that arise in a case such as this.  Section 70NAD requires that a parenting order that deals with whom a child is to spend time is taken to include a requirement that parties comply with the provisions of section 65N.  Section 65N imposes an obligation on a person to ensure that the order is fulfilled.  Each of the orders that was made on 23 August was accompanied by a notation attached to the order embodying the provisions of section 65DA(2) and section 62B.  Those provisions set out very clearly that a party who is to provide a child for time to be spent by the other parent cannot be a passive observer.  The parent must do all things to ensure that the order is carried out.

8. Section 70NAC of the Act defines what is meant by contravention of an order. It says that a person is deemed to have contravened the order if, and only if, where that person is bound by the order, he or she has intentionally failed to comply with it or made no reasonable attempts to comply with the order.

9. It is hard to see in this case how the mother can say she did not understand the nature of the order because she was represented by counsel on 23 August.  In addition, she has had lawyers acting for her all of the way through until recently.  There is still a substantive proceeding on foot.  What the Court needs to be satisfied about, however, is that the mother has intentionally failed to comply or made no reasonable attempt to comply.  It is the latter rather than the former in this case that troubles me. 

10. A person can be deemed to have had a reasonable excuse for contravening the order because of section 70NAE.  That section provides a number of examples that give rise to reasonable excuse, but they do not limit the circumstances under which a reasonable excuse can arise. 

11. The Court has to be satisfied that the person has a reasonable excuse for not complying with the order. Section 70NAF requires that when determining a matter of this nature, the Court be satisfied on the balance of probabilities that the allegation is established. Once the contravention application is completed then by virtue of section 70NBA, Part VII of the Family Law Act 1975 (Cth) (“the Act”) relating to the power of the Court to make parenting orders including varying the existing orders, is enlivened.

12. I turn then to the specifics of the two remaining allegations.  Dealing first with the 23 October 2010, the father said that he received a telephone call from his brother during the morning of the Saturday to indicate that J had injections the previous day and had been crying overnight.

13. This information had been given to the brother by the mother who asked him to contact the father to cancel the visit.  The father’s position was that he wanted to see some objective proof of the incapacity of his child to go into his care, bearing in mind the order that he have a responsibility for caring for J for that time.  I think this example highlights the insensitivity of the parties’ relationship each with the other.  The mother clearly took the view that the father was not responsible enough to either care for the child either in her house or take the child away.  The father, too, did not trust the mother.  It is his evidence that this was part of the pattern.  I must bear in mind that this child was only a few months old and, as I understand the evidence, was being breastfed.  If this is a forerunner of the things to come, this little girl is going to have a very unfortunate childhood.

14. The balance of probabilities is the standard of proof.  I accept that the mother did not get a medical certificate on that day and to demand one in the circumstances seems to me to be unreasonable.  Having regard to the age of the child and the fact that the injections had only recently occurred, it seems to me that demanding some objective proof was being pedantic.  I say that in the context of parties whose relationship is lacking in trust and where any confrontation between them is unpleasant.  I note, too, there is evidence that the mother’s solicitor advised the father that all communication was to be through the lawyers.  That, no doubt, was founded on some family violence principle, but it does nothing to help the parties try and sort out the problem that they are going to have in the long term, which is to care for this little girl. 

15. I am not satisfied in the circumstances that the mother did not make a reasonable attempt on the day, nor am I satisfied that she deliberately defied the order.  I am satisfied in the circumstances that she thought the child should not be going with the father because she was ill.  That allegation is dismissed. 

16. That then leads me to the incident alleged on 20 February 2011.  To this allegation, the mother denied responsibility.  There is a history relating to this event that needs to be considered. 

17. On 18 February 2011, the father received a telephone call from a member of the African Country 1 community inviting him to attend the meeting on the following Saturday at 3 o’clock.  Because it clashed with the time that he was to spend with J, he declined.  When he arrived on the Saturday at the mother’s residence just prior to 2 pm, it was clear that she was going to some community meeting because there was a minibus outside the house.  He said, and the mother did not deny this, she told him to return J to her at 4.30 pm in Melbourne suburb 1.  Rather than inquire where in Melbourne Suburb 1 or why in Melbourne Suburb 1, his response was that it was not possible because the order required him to return the child to Melbourne Suburb 2.  That was the start of the problem.

18. It is again indicative of the problem that these parties are going to have in the future relating to their parenting responsibilities.  The mother then got on the bus leaving J with the father.  He took J away and returned to Melbourne Suburb 2 at 4.30 pm, having rung the mother as she had requested him at 4 pm, but there was no answer. 

19. When he returned at 4.30 pm to the Melbourne Suburb 2 home, the mother was not present and there was no indication where she was.  He then returned to his home and at 7.20 pm received a telephone call from his sister-in-law to indicate that the mother had contacted her wanting J returned to Melbourne Suburb 2.  To his credit, he did return J at that time, although obviously with the distance involved, it was much later before she got home to her mother.

20. It seemed common ground between the parties that at 7.20pm J was not in a very good condition.  The mother, whether because of the fact that she was angry that the father did not return the child to Melbourne Suburb 1 or because the child was not in a condition that she thought appropriate, then declined to allow the contact on the Sunday to take place.  Despite her telling the father that she was not going to allow the contact to take place, the father arrived at the appropriate time on the Sunday.  His position was that the mother simply told him that he could not take J away and, therefore, he was denied the time.  The mother’s position was that the child was distressed and unsettled and it was not appropriate for the child to go away.  I am not at all comfortable with this event having regard to the evidence.

21. I find the mother adopted a position on the Saturday night where she was upset and, therefore, had made a conscious decision that even if the child was distressed, tired or unwell, that the subsequent 14 or 15 hour period would not be sufficient for the child to recover.  Without some indication as to why that was so, it seems to me that the father’s position is the more probable one, namely that the mother told him that he was not to see J on the Sunday because he had not done what she wished.  That would be inconsistent with her obligations under the order. 

22. I am satisfied in the circumstances that that allegation is proved.  All of the other allegations are either struck out or, as I have earlier indicated, dismissed.

RECORDED  :  NOT TRANSCRIBED

ORDERS DELIVERED

1. This is an application by the successful applicant for costs. Section 117 of the Family Law Act provides that each party shall bear their own costs unless there are circumstances that justify departure from that principle. The Court must be satisfied there is something unusual about either the case or the conduct of the parties to warrant making an order for costs because otherwise philosophically the legislation makes clear each party should bear their own. If the Court is inclined to make an order for costs, then matters set out in section 117(2A) must be taken into account. One of the most fundamental questions then is the financial disparity of circumstances between the parties. Contraventions are difficult cases because of the fact that the end result usually is not the way things started out. This is a case where there have been considerable controversies between the parties and their inability to make headway in their parenting relationship has no doubt contributed to the problem.

2. Be that as it may, this is a case where the offer was made by the father to the mother to solve the problem by a make-up period of time and she rejected or ignored that possibility.  This is a case where I think that there is a justification for departing from the rules that each party bear their own costs.  The circumstances, however, are clear.  The mother is living on Centrelink benefits and child support.  Child support no doubt covers the costs of the child, rather than contributes much towards the mother’s enjoyment and on that basis I can treat her as a low income earner.  The father earns $71,000 gross per annum, but also pays child support and has a solicitor’s bill to pay out of that.  The only costs he has incurred are counsel’s fees on two occasions, each of $1650.

3. Having regard to the mother’s financial circumstances, it seems to me that by making an order for costs against her I am simply taking money out of the child’s mouth and no doubt that is a factor that will just make her life more difficult.  However, the father has incurred the costs to establish a point and I see no reason why, he having been successful and she unsuccessful, she should not pay something towards his costs.  The costs claimed amount to $3300.  I propose only to make an order for $1000.

RECORDED   :   NOT TRANSCRIBED

ORDERS DELIVERED

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 May 2011.

Associate: 

Date:  27 May 2011