Cheni and Stiller

[2016] FamCA 57

FAMILY COURT OF AUSTRALIA

CHENI & STILLER [2016] FamCA 57

FAMILY LAW – ORDERS – Contravention – where allegations not proved –where application dismissed.

Family Law Act 1975 (Cth) ss 70NEA, 70NEB

APPLICANT: Mr Cheni

RESPONDENT: Ms Stiller

INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

FILE NUMBER: PAC 2819 of 2013

DATE DELIVERED: 11 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 20 and 21 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rosic

SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT: Saldaneri & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

Orders

1. The amended Application – Contravention filed 4 September 2015 is dismissed.        

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2819  of 2013

Mr Cheni

Applicant

And

Ms Stiller

Respondent

REASONS FOR JUDGMENT

1. These are contravention proceedings commenced by the applicant father as subsequently amended by the filing of an amended contravention application on 4 September 2015.

2. These are proceedings under the provisions of s 70NEA of the Family Law Act 1975 (Cth) (“the Act”). In summary, the section applies if the Court is satisfied that a person has committed a contravention of a primary order and the person does not prove that he or she had a reasonable excuse for the current contravention and the Court has previously not made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or otherwise adjourned proceedings in respect of a contravention by the person of the primary order.

3. Section 70NEB sets out the powers of the Court in circumstances where a contravention is found proved under the provisions of s 70NEA.

4. A “primary order” is defined in s 4 of the Act to mean “an order under this Act affecting children and includes such order as varied”.

Context

1. The father alleges that the mother without reasonable excuse has failed to comply with orders made on 17 February 2015 as amended by orders made on 13 July 2015.

2. The father’s allegations are as follows:

   (1)That on 31 July 2015 at 5:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the applicant father to spend unsupervised time with the children C and D for the period 31 July 2015 to 2 August 2015 as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015.

   (2)That on 2 August 2015 at 4:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the father to spend supervised time with the children C, D and E as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015.

   (3)That on 14 August 2015 at 4:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the father to spend supervised time with the children C, D and E, and unsupervised time with the children C and D as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015.

   (4)That on 28 August 2015 at 4:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the father to spend supervised and unsupervised time with the children C and D as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015.

3. When each of the allegations were put to the mother she denied same.

4. The father relied on part of his affidavit filed on 10 August 2015 being paragraphs 101 to the end thereof and his affidavit filed 4 September 2015.

The Father’s Case

1. On 17 February 2015 interim parenting orders were made by consent. On that day the mother was represented by her solicitor.

2. The orders relevantly provided that:

   (1)The subject children [C], [D] and [E] live with the mother.

   (2)The children [C], [D] and [E] are to spend supervised time with the father from 4:00pm to 5:00pm on Friday and from 4:00pm to 5:00pm on Sunday in each alternate weekend with the first such occasion to occur on dates nominated by the convener or other appropriate officer of the [J Contact Service] at [Suburb F].

   (3)The children [C] and [D] will spend time with the father from 5:00pm Friday to 4:00pm Sunday each alternate weekend first such period to coincide with supervised time provided for in order 2 above.

   (4)The father’s time with [C] and [D] which is not supervised shall commence and conclude at the [J Contact Service, Suburb F] in a supervised setting.

   (5)The father’s time with [C and D] that is not supervised is to occur at the home of the paternal grandmother at [G Street, Suburb H].

   (6)The father on collection of [C] and [D] is to travel directly to the paternal grandmother’s home at the beginning of the unsupervised time and is to travel from her home directly to the [J Contact Service] at [Suburb F] at the end of the period.

3. Subsequently further interim orders were made on 13 July 2015. Those orders relevantly provided:

   (2)That orders 2, 3 and 4 made on 17 February 2015 are discharged as and from the time the Contact Centre at Suburb I can provide supervised changeovers.

   (3)That orders 2, 3 and 4 made 17 February 2015 will then be replaced with the following:

   2)The child [C] born … 2010 is to spend time with the father from 4:15pm on Friday to 4:15pm on Sunday in each alternate weekend with changeovers to give effect to this order to occur at the beginning of the period at Relationships Australia [Suburb I] Contact Centre and at the end of the period under the supervision of an appropriate employee of [J Contact Service] at [Suburb F],

   3)The children [D] born … 2013 and [E] born … 2014 are to spend supervised time with the father supervised by an employee of [J Contact Service] at [Suburb F] from 1:45pm to 2:45pm each alternate Friday coinciding with the day that Relationships Australia can undertake supervised changeover for [C] pursuant to order 2 and from 4:15pm to 5:15pm on Sunday for [E] at the end of the period supervised by an employee of [J Contact Service] at [Suburb F].

   4)Having spent supervised time with [D] from 1:45pm to 2:45pm each alternate Friday [D] shall then remain in the care of the father unsupervised for the remainder of that weekend period until the conclusion of the period.

   …

   (5)Either the mother or her nominee is to deliver [C] to the Relationships Australia contact centre at [Suburb I] at the beginning of the period and the father is to return the children to the supervisor nominated by [J Contact Service] at the end of the period for collection by either the mother or her nominee.

4. On 27 July 2015 J Contact Service forwarded to the father’s solicitor an updated Supported Contact Agreement for the end of July and the month of August 2015. That updated agreement is not in evidence and thus there is no evidence of any proposed nominated dates or of the mother signing the agreement.

5. On 29 July 2015 the father signed the agreement and provided that agreement to J Contact Service. By email dated 28 July 2015 the mother raised various issues as to the father’s proposed time with the children with J Contact Service. On 29 July 2015 J Contact Service forwarded an email to the father’s solicitor enclosing a copy of the mother’s email and advising that J Contact Service “can not proceed with a visit until both parties sign an agreement and at this stage [Ms Stiller] is refusing to sign an agreement as per the court orders”.

6. Subsequent to the mother’s email J Contact Service forwarded a further Supported Contact Agreement to the father’s solicitors. That further agreement is not in evidence and thus there is no evidence of any proposed nominated dates that it is to be inferred required the mother’s signature to the agreement. The father says that he accepted the amended agreement. There is no evidence that the agreement was signed by the mother.

7. It is to be inferred that upon such an agreement being signed by both parties the agreement would operate as a nomination of the dates on which the children’s time with the father will occur by reason of the orders made on 17 February 2015 in the event that those orders had not by the relevant time of the alleged contraventions been discharged by reason of the further orders made on 13 July 2015.

8. As to the discharge of the orders made on 17 February 2015, the father registered with Relationships Australia at Suburb I on or about 10 April 2015. As at 21 July 2015 the father was informed by a representative of that organisation that there was at that time no place available for the facilitation of changeovers and that “I cannot tell you how long the wait is”.

9. Accordingly the evidence is clearly indicative that the orders made on 17 February 2015 are the relevant orders in considering the father’s contravention application.

10. The orders made on 17 February 2015 provide that the children’s time with the father shall be “in each alternate weekend (sic) with the first such occasion to occur on dates nominated by the convenor or other appropriate officer of the [J Contact Service] at [Suburb F]”. The children’s time with the father remained at all times contingent upon that nomination.

11. The father is required to prove the alleged contraventions on the balance of probabilities; in which event the mother would be required should she wish to do so to adduce evidence of reasonable excuse.

The Alleged Contraventions

That on 31 July 2015 at 5:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the applicant father to spend unsupervised time with the children and C and D for the period 31 July 2015 – 2 August 2015 as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 31 July 2015:

1. The father spent supervised time with D and E between 4:00pm and 5:00pm.

2. The operative orders, inter alia, provide that:

   (2)  The children C, D and E are to spend supervised time with the father from 4:00pm to 5:00pm on Friday and from 4:00pm to 5:00pm on Sunday in each alternate weekend with the first such occasion to occur on dates nominated by the convenor or other appropriate officer of the J Contact Service at Suburb F

   and

   (3)  The children C and D will spend time with the father from 5:00pm Friday to 4:00pm Sunday each alternate weekend first such period (sic) to coincide with supervised time provided for in order 2 above. (emphasis added)

3. There is no evidence of any such nomination for 31 July 2015.

4. There is no evidence of that nomination as referred to above. The allegation as to this contravention is thus dismissed.

That on 2 August 2015 at 4:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the father to spend supervised time with the children C, D and E as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015:

1. The father attended at Suburb B at 3:15pm. Shortly after, the father received a message that the mother was unable to attend.

2. The operative orders, inter alia, provide:

   (2)  The children [C], [D] and [E] are to spend supervised time with the father from 4:00pm to 5:00pm on Friday and from 4:00pm to 5:00pm on Sunday in each alternate weekend with the first such occasion to occur on dates nominated by the convenor or other appropriate officer of the [J Contact Service] at [Suburb F]

   and

   (3)  The children [C] and [D] will spend time with the father from 5:00pm Friday to 4:00pm Sunday each alternate weekend first such period (sic) to coincide with supervised time provided for in order 2 above. (emphasis added) 

3. There is no evidence of any such nomination for 2 August 2015.

4. There is no evidence of that “nomination” as referred to above. The allegation as to this contravention is thus dismissed.

That on 14 August 2015 at 4:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the father to spend unsupervised time with the children C and D and unsupervised time with the children C and D as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015:

1. The father alleges that the mother cancelled a proposed supervised visit for 14 August 2015. Correspondence is clear that she did so for the reasons asserted by her. The mother and father through his solicitors however engaged in discussions as to an alternate supervisor on whom the mother attended with the children on the subject day only to find that the father did not attend (Exh C).

2. The operative orders, inter alia, provide:

   (2)  The children [C], [D] and [E] are to spend supervised time with the father from 4:00pm to 5:00pm on Friday and from 4:00pm to 5:00pm on Sunday in each alternate weekend with the first such occasion to occur on dates nominated by the convenor or other appropriate officer of the [J Contact Service] at [Suburb F]

   and

   (3)  The children [C] and [D] will spend time with the father from 5:00pm Friday to 4:00pm Sunday each alternate weekend first such period (sic) to coincide with supervised time provided for in order 2 above.  (emphasis added)

3. Once again there is no evidence that the date was the subject of appropriate “nomination” by the supervising agency. The alleged contravention is dismissed.

That on 28 August 2015 at 4:00pm at McDonald’s, Suburb B the respondent mother without reasonable excuse refused to allow the father to spend supervised and unsupervised time with the children C and D as per orders made in the Federal Circuit Court dated 17 February 2015 and amended order dated 13 July 2015:

1. The father asserts that he was to spend time with the subject two children on this day. 

2. He attended at McDonald’s at Suburb K by reason of correspondence from his solicitors informing the mother that he would attend there with an agreed alternate supervisor other than the organisation provided for in the subject orders and inviting the mother to consent to vary the orders. The orders were not varied.

3. There is no evidence that Suburb K was nominated by the relevant supervising agency.

4. The mother attended at Suburb K with the child E. The child C refused to get out of the mother’s car and the child D was ill and not present (Exh C). The father spent time with the child E.

5. Yet the father alleges that the mother failed to attend at Suburb B at the same time on the same day.

6. The operative orders, inter alia, provide:

   (2)  The children [C], [D] and [E] are to spend supervised time with the father from 4:00pm to 5:00pm on Friday and from 4:00pm to 5:00pm on Sunday in each alternate weekend with the first such occasion to occur on dates nominated by the convenor or other appropriate officer of the [J Contact Service] at [Suburb F]

   and

   (3)  The children [C] and [D] will spend time with the father from 5:00pm Friday to 4:00pm Sunday each alternate weekend first such period (sic) to coincide with supervised time provided for in order 2 above.  (emphasis added)

7. He gives no evidence any “nomination” as to the date pursuant to the orders.    

8. The allegation as to contravention is dismissed.

9. The amended Application – Contravention filed 4 September 2015 is thus dismissed.

10. It is appropriate that any costs application be determined on the basis of written submissions.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 February 2016.

Associate: 

Date:  11 February 2016