D and B
[2002] FMCAfam 201
•20 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & B | [2002] FMCAfam 201 |
FAMILY LAW – Contravention application – post separation parenting program order – breach of court orders.
Family Law Act 1975, ss.70NC, 70 NE
| Applicant: | R S D |
| Respondent: | C F B |
| File No: | NCM2931/02 |
| Delivered on: | 20 June 2002 |
| Delivered at: | Newcastle |
| Hearing Date: | 20 June 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Applicant father appeared in person |
| Solicitor for the Respondent: | Respondent mother appeared in person |
ORDERS
Pursuant to s.70NG(1)(a), the mother is to attend a post-separation parenting program as directed by the Primary Dispute Resolution Coordinator of the Federal Magistrates’ Court.
I direct that the applicant father may also attend such post-separation parenting program should he wish to participate.
Neither party is to discuss these proceedings with the children or in the presence or hearing of the said children.
The application be removed from the Pending Cases List.
Any documents produced on subpoena may be returned.
I require a transcript of my Reasons for the decision.
FEDERAL MAGISTRATES |
NCM2931 of 2002
| R S D |
Applicant
And
| C F B |
Respondent
REASONS FOR JUDGMENT
This is an application by the father of two children to have the Court deal with the mother in respect of allegations of breaches of Contact Orders made by the Family Court of Australia at Newcastle in July 2001. The Orders provided that the respondent father was to have contact with the two children defined as follows, and I will read out only the relevant pieces:
"(a)Each alternate weekend from 8.00 am on the Saturday to
5.00 pm on the Sunday; and
(b)Commencing from January 2002, the father to have contact with the two children for half of each school holiday vacation period. Such contact to occur in the second half of each school holiday period."
The children concerned are L, who was born on 9 March 1996, and S, born on 15 November 1998. The children normally reside with the mother. The allegations made by the father is that without reasonable excuse the respondent mother has failed to comply with these two Orders as follows:
"(1)Failed to provide the children for weekend contact from
23 February 2002 to 23 April 2002; and
(2)That the mother failed to provide the children for contact for half of each school holidays from January 2002 to 23 April 2002.”
The father gave evidence by affidavit and was cross-examined. Evidence in support of his application came from Y H who gave evidence relating to the incidents on the weekend of 23 February, although from some point removed. At the conclusion of the applicant's case, the Court found that whilst the father had not made out a case in respect of the school holiday contact as set out in Order 3(b), there was a case to answer in respect of alternate weekend contact, particularly on the weekend of 23 and 24 February.
The mother denied the allegation. She gave evidence, and her evidence was supported by her brother, J E B, and by a neighbour, one A L H. Ms H gave evidence by way of telephone from K as she was unable to attend Court today.
The facts, insofar as they are relevant, relate to the father attending the mother's home on the Saturday for contact with the children. The mother says she had the children ready to go with their father; that the child, L, had gone around to Ms H's place next door; the child S was sitting on top of a garbage tin whilst the mother was attending to her hair. It is the mother's evidence, however, that she prepared the children; the children were otherwise ready to go with their father. However, an altercation broke out quite quickly and the matter soon turned into a most unfortunate scene. The mother alleges that the father was complaining bitterly about the activities of the Child Support Agency and asking the mother to do something about it. The child, L, became quite opposed to the question of contact and, in fact, left the scene but returned a bit later; indeed, the father had to go after the child, speak to him and, in fact, pick him up and carry him; the child was behaving in a hostile and quite stubborn way. Eventually, the father left without either child.
Conversations took place where the mother said the father agreed that he would ring in respect of contact the following day. The father did return the following day, although the mother had gone out for a relatively short time to obtain a lawnmower. She says she had only been away about 20 minutes. The father had arrived, he was in the drive; regrettably the hostilities, on a verbal basis, broke out again and again the father left without the children.
What does the law say? Section 70NC of the Family Law Act says that:
"A person is taken, for the purposes of this Division, to have contravened an order under this Act affecting children if, and only if:
(a)where the person is bound by the order, he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order.”
It is incumbent upon an applicant to show that there has been a breach of the Order sufficient to require a respondent to actually answer that allegation. Of course it is open to a respondent to show that whilst there has been a breach, that that person had a reasonable excuse for contravening the Order. There are a number of examples set out in s.70NE of the Family Law Act, although they are not an exclusive list; there can be other reasonable excuses that are not set out in s.70NE.
At the conclusion of the case both parties addressed the Court; the mother, in fact, in her submissions, to her credit, admitted that there had been a breach to the extent that the children had not gone with their father on what was admitted to be a contact weekend. She said, however, she had a reasonable excuse and referred to the difficulties that took place with the children at times not wanting to go with their father, particularly the child, L, who is now six years of age; he is his own person and has his own rather fixed views. The children would say beforehand that they did not want to go but the mother would disregard those things, thinking that they would just work through that, then they would see their father and they would want to go.
One matter that has become quite clear in these proceedings is that there are ongoing difficulties between the parties. The mother, in fact, in her evidence, made it quite clear that in her view the father did not understand the difficulties that at times she had with the children. She did not oppose the concept of contact; it was her intention to comply with the Orders, but that she had great difficulty communicating with the father and that if she could communicate with him in such a way then the situation would be better for both parties and, indeed, for the children.
It is certainly a case where it is regrettable, in fact, that the parties did not have the opportunity to speak to a Court Counsellor on a confidential basis to deal with issues relating to the children which may have lead to some resolution of the matter. Indeed, it is the mother's view that the children lack confidence in their father; she says it is because the father does not arrive on time or sometimes at all and that the contact arrangements need to be re-drawn. However, she is not at this stage taking any proceedings to do that. In fact, the father, of course, has said in his evidence that at times when he has tried to see the children and wants to see the children, that the mother has been most unobliging in providing information.
Nevertheless, what is the situation here? I am satisfied that the father went to the place where he was required to go under the Orders to collect the children on what was his contact weekend. I am satisfied that the mother had taken steps to have the children ready to go. I am satisfied also that the child, L, commenced acting out and making life extremely difficult. I am satisfied that neither children went for contact with their father on either day. There is very little evidence about the child, S, and indeed, there is no evidence that the child, S, was otherwise acting out. The question is asked; if L was being so obstinate on that weekend, why could his sister have not spent some time with her father? That may well have been a reasonable compliance with the Order, in the circumstances. What happened, however, was that on each occasion the situation degenerated and the father left without either child. I am satisfied there has been a breach. I am not satisfied that a reasonable excuse has been made out.
I look now as to what Orders should be made. Clearly, there is a need for the parties to look again at the arrangements for these children and how the children are going to relate to each parent. The children are very young; six and three. There is a long time to go and it is clearly better for the children to be able to have a good and positive relationship with both parents. It is regrettable that the parents' degree of hostility at the moment, for whatever reason, is so great. I doubt that it is helping the children, it certainly is not helping the parents. These proceedings are causing both parents a great deal of frustration, annoyance and, I suspect, distress.
I started off by indicating that there was a clear need for counselling and it is regrettable that that has not happened up to date. One power that the Court does have is to require a party to attend a post-separation parenting program through an approved counselling organisation. I am satisfied that the circumstances of this matter would make this an appropriate course to follow. I am also of the view that an invitation should be extended to the father should he wish to participate so that he, too, could take some place.
The father has made it quite clear in his evidence that he wants to have contact with the children; that it distresses him when he is not there with the children and I would be very surprised if he enjoys having arguments with the mother. Certainly when he goes to see the children at a time and returns without them, I have no doubt that causes him deep distress. Equally, I have no doubt that the mother has no enjoyment in arguing with the father and that when contact arrangements fall down, as they did on the weekend of 23, 24 February, that that too must cause her a great deal of distress. The mother, as I said, has made it clear that she believes that it is proper that the children should have a good relationship with each parent.
I propose to make the following Orders; I am going to deal with this matter under Stage 2 of what is known as the Parenting Compliance Regime. I comment that it may be necessary for the parties to obtain their own legal advice as to whether they should look at redrawing the contact arrangements which, certainly on the weekend of 23 February, did not work at all well.
I certify that the preceding sixteen paragraphs (16) paragraphs are a true copy of the reasons for judgment of Scarlett, FM
Associate:
Date: 10 July 2002
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