CREIGHTON & BANDAM

[2010] FamCA 206

FAMILY COURT OF AUSTRALIA

CREIGHTON & BANDAM [2010] FamCA 206

FAMILY LAW – CONTRAVENTION – Children

Family Law Act 1975 (Cth)

APPLICANT: Mr Creighton

RESPONDENT: Ms Bandam

FILE NUMBER: MLC 5610 of 2009

DATE DELIVERED: 23 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 February 2010

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the court finds the contravention of the orders made on 15 September 2009 proved as to:

   (a)     the allegation relating to 20 November 2009;

   (b)    the allegation relating to 29 January 2010; and

   (c)    the allegation relating to 17 November 2009.

2. That the court declares that the contravention fits within sub-division E of Division 13A of Part VII of the Family Law Act 1975 (Cth).

3. That the contravention relating to the incident on 25 November 2009 is dismissed.

4. That the fifth contravention set out in the application filed 5 February 2010 is withdrawn by leave.

5. That both the applicant and the respondent attend a post-separation parenting program as soon as practicable hereafter and upon completion of such program, provide to each other and to the Registry Manager of the Family Court of Australia at Melbourne a certificate confirming their respective attendances.

That the application filed by the father on 5 February 2010 is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5610 of 2009

MR CREIGHTON

Applicant

And

MS BANDAM

Respondent

REASONS FOR JUDGMENT

1. I am dealing with an application brought by Mr Creighton that his former partner, who is the mother of the two children, the subject of these proceedings, be dealt with by the court for contravening a court order.  The court order was made by consent of the parties on 15 September 2009.  The parties are back in court only seven months later.  The orders of 15 September 2009, so far as they are relevant to these proceedings, provide that the father is to spend time with M, who is now 13 years of age, and T, who has just turned 13, on each alternate weekend from 5 o’clock on Friday to 5 o’clock on Sunday, commencing 9 October 2009.

2. The orders also provide for the father to spend time with the children during holiday periods, and I note that the long summer school holidays was specifically fixed in the orders as a period for the 2009 year from 23 December until 6 January.  The order provides that his time under paragraph 4(a), which is the alternate weekend time, was specifically suspended for two weeks after that summer holiday period.  The only conclusion that I could draw from that is that the normal rule that school holiday periods suspend the normal weekend contact does not apply.  There cannot be any other conclusion about the matter. 

3. The further order made by the court, again by consent of the parties, was that neither party denigrate the other in the presence or the hearing of the children or either of them, or allow any other person to do so.  The father filed an application for contravention on 5 February 2010 in which he made five allegations.  The fifth allegation has been withdrawn on the basis that it is too vague for me to ask the respondent to respond to.  The other remaining allegations are that on 20 November 2009 and on 29 January 2010 the father did not have time with the two children.  The two final allegations are that on 17 November 2009 and 25 November 2009 the respondent permitted another person to denigrate the father in the presence or the hearing of the children.  In respect of each of the four allegations, the respondent denies that they are correct.

4. Each party has given evidence.  Each party has provided an affidavit which they have drawn themselves.  The father’s affidavit, in respect of each of those allegations, says that on 20 November he was at home waiting for the children to arrive, as they normally would, between quarter to five and quarter past five, but they did not turn up.  He said no notification had been provided by the respondent.  He then telephoned the respondent to inquire where they were, and her partner answered the phone and abused him.  The mother’s response was that the children had chosen not to attend.

5. The second allegation relates to 29 January 2010.  The father’s evidence in respect of that is that the children did not attend for their scheduled contact, and no notification was provided by the mother.  His phone calls had been unanswered.  The mother filed an affidavit in these proceedings in which she said that she did not refuse, but rather this was the last weekend of the school holidays and, as agreed upon between the father and herself years ago, the children always stayed and prepared to get back in to routine for school, which was to start on the following Monday.  The problem with that explanation is that the orders quite precisely say that the only period of time during the summer school holidays that is suspended is the two-week period immediately after the father has his time with the children. 

6. The mother says that at the hearing in September, there was a verbal agreement, which is disputed by the father, indicating that the usual practice of suspending the last weekend of the school holidays would apply.  I give that no weight because of the precise nature of the orders made in September and the fact that all parties agreed to the orders.  It is significant to note that the mother was represented by a lawyer on that occasion. 

7. The other two allegations relate to denigration.  The first relates to 17 November 2009 wherein the father says that he made a number of attempts and eventually M answered the phone at 8.15.  He spoke to her for a short time and she then placed T on the telephone.  He said that he could hear the mother and her partner in the background having a conversation concerning his late telephone call.  He said the mother’s partner shouted out, “You’re supposed to ring between 7 and 7.30, arsehole.”

8. Although the mother, in evidence, denies any knowledge of that conversation, I accept the evidence of the father that he heard the mother and her partner in the background. Her evidence was that she could not recall the telephone conversation. It is plausible therefore, for me to accept as a matter of probability, the evidence of the father. 

9. The fourth allegation relates to 25 November.  The father says that whilst he was speaking to T on the telephone he heard the mother and her partner in the background shouting obscenities.  The partner yelled out, “You weak cunt.  You’re a fucking piece of shit and a gutless cunt.  Come and get me.”  He said he heard Ms Bandam, the mother, laughing at his comments.  The mother’s evidence is that that did not occur, which is different from her statement in respect of the other telephone call, which she did not recall. 

10. The provisions relating to contraventions of court orders are to be treated seriously.  Ultimately, the provisions are designed to ensure parties comply.  They are not specifically intended to be punitive. They are intended to encourage people to comply, and at times, courts may have to use the legislative powers to encourage parties by indicating that imprisonment is the only course of action open.  It is an action of last resort, but it is something that in this case the mother will need to be cautious about because she has not applied to set aside the orders.  A punishment is not what the father is seeking today.  To his credit, he has indicated that he wants the relationship between he and his children not disturbed, but for the children not to have the whip hand to make the decisions.  Quite frankly, I agree. 

11. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) provides that a person is taken 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 made no reasonable attempt to comply with the order. In respect of the first two allegations for 20 November and 29 January, I find that the mother has made no reasonable attempt to comply with the order. A respondent can have a reasonable excuse for contravening the order. One of the explanations that is acceptable to the court is that the non-compliance occurs for the health and safety of the children. That does not apply here. There is considerable evidence by the mother in an affidavit in which she indicates that the children have told her about their unhappiness concerning the behaviour of their father, but again, those are matters that are appropriately dealt with by a further application to the court. The parties cannot expect the court to simply ignore its orders. In this case, I find there is no reasonable excusable for the mother in contravening the first two orders.

12. In respect of the second two allegations, I am satisfied that the mother was present when the first telephone call occurred on 17 November and made no reasonable attempt to prevent her partner from, in fact, abusing the father, albeit in a relatively modest way.  Unfortunately, in our society children learn from their parents.  If the sort of language I have heard from the adults is happening in this household and the children hear it, it is hard to expect them to respect the other adult.  In addition, it obviously encourages them to behave in that way in their own lives.  The parents in this case have a lot to learn.  I am not satisfied as to what occurred in respect of the fourth allegation, having regard to its serious nature and propose to dismiss it. 

13. In respect of each of these findings I say that the appropriate test for determining the outcome is the balance of probabilities. 

14. I am satisfied in all of the circumstances that three of the contraventions have been made out. Section 70NBA of the Act provides that a court having jurisdiction under this Act may vary a primary order if the contravention proceedings are brought and are completed. In this case, this is a matter in which it is not appropriate for me to amend the orders on the basis that the parties themselves consented to them only in September. In my view, the orders are quite workable. It is simply a question of the mother indicating that she is not happy with the orders having regard to the ages and the views of the children. Those are matters that should not be ventilated in this hearing. If she is serious about that view, then the parties need to attend some mediation, and if there is still a dispute, they can attend appropriate court processes.

15. I am very concerned about the third allegation, albeit, as I said, it was a modest piece of language.  It would appear to me that the mother’s partner is embroiled in this particular case far more than he needs to be.  The evidence from the father, which arose from cross-examination by the mother, was that he does not communicate with the mother, on the basis that up until now the only communication he has had has been with the mother’s partner.  That is most unfortunate for the sake of the children.  I make it abundantly clear, however, that the order that was made by consent of the parties on 15 September last year was there for a purpose.  I conclude that the sort of conduct that is complained about here is exactly the sort of the conduct that was referred to in paragraph 6 of the orders of Young J.  Neither party was to denigrate the other in the presence or hearing of the children or allow any other person to do so.  It seems to me that that is exactly what the mother has permitted to occur here.

16. In terms of what should happen in this case, however, the legislation makes it clear that the court should look at the seriousness of a particular breach.  In this case, I am dealing with the mother on the basis of subdivision E - that is, contravention without reasonable excuse, but in the less serious contravention category.  The powers of the court are set out in section 70NEB.  In the circumstances, that is the appropriate power to exercise.  In this case, I am satisfied that the parties would benefit from attending a post-separation parenting program.  That should apply to both parents because they will learn, hopefully, just exactly how their children are trying to grapple with two parents in two households where there is no love lost.  Both parties should attend a post-separation parenting program.  I propose to order that in this case.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 March 2010