DAVIS & GREEN
[2011] FMCAfam 1482
•21 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAVIS & GREEN | [2011] FMCAfam 1482 |
| FAMILY LAW – Hearing of contravention application on undefended basis – application for Location Order. |
| Family Law Act 1975, ss.70NEB, 70NAE, 70NAF, 70NEA, 70NBA, 67N |
| Applicant: | MR DAVIS |
| Respondent: | MS GREEN |
| File Number: | SYC 2567 of 2009 |
| Judgment of: | Harman FM |
| Hearing date: | 21 October 2011 |
| Date of Last Submission: | 21 October 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 21 October 2011 |
ORDERS
Pursuant to s.70NEA of the Family Law Act 1975, find that MS GREEN has failed without reasonable excuse to comply with orders made by the Federal Magistrates Court of Australia of 17 November 2010 (hereinafter referred to as “the primary orders”) on each of 9 July 2011, 27 August 2011, 1 October 2011, and continuing to date.
With respect to the above contraventions and pursuant to ss.70NBA and 70NEB:
(a)Orders 4 , 8, 9, 10 and 11 of the primary orders are discharged;
(b)Pending further order the children [X] born [in] 2002 and [Y] born [in] 2004 shall spend time with their father as follows:
(i)Each sixth (6th) weekend during school terms from 9am Saturday until 1pm Sunday, with the first period to commence Saturday 19 November 2011;
(ii)For the second half of each short school holiday period (being the school holidays following the conclusion of terms 1, 2 and 3) and commencing at 9am on the second Saturday of the holiday period and concluding at 6pm on the last Sunday of the holiday period;
(iii)For a period during the Christmas school holidays in each year commencing at 9am on 27 December and concluding:
1. For the 2011 and 2012 Christmas school holiday period, at 6pm on 17 January following;
2. From 2013 at 6pm 10 January following;
(c)For the purpose of [X] and [Y] passing into their father’s care:
(i)Mr Davis shall determine whether the children shall fly from and to [Suburb B] and shall advise Ms Green of the flight itineraries by email to Ms Green’s email address ([email address omitted]) not less than 7 days prior to the commencement of any period;
(ii)If travelling by air then Ms Green shall cause [X] and [Y] to be delivered to [Suburb B] airport in sufficient time to be booked onto the scheduled flight and shall ensure that [X] and [Y] board the flight;
(iii)If travelling by air and subject to the conditions and policies of the scheduled airline carrier, the children may travel unaccompanied or, if the airline carrier requires that the children be accompanied then they may be accompanied by either Mr Davis or his partner Ms D; and,
(iv)If not travelling by air then Mr Davis or his partner Ms D shall collect [X] and [Y] from [omitted] Railway Station;
(d)For the purpose of [X] and [Y] passing into their mother’s care Ms Green shall collect the children from [Suburb B] airport if travelling by air and if not from [omitted] Railway Station;
Ms Green shall, no later than 4pm on 28 October 2011, attend upon the Albury Registry of the Federal Magistrates Court for the purpose of there signing and entering into a bond without surety or security to:
(a)Be of good behaviour for a period of 12 months from the date of these orders; and,
(b)Comply strictly with these orders and the above primary order;
In the event that Ms Green should fail to enter the above bond by 4pm on 28 October 2011 then upon being advised of same and absent an Appeal having been lodged by Ms Green with respect to these orders, a warrant may issue for Ms Green’s arrest for the purpose of her being brought before the Court (to appear by video link from the Albury Registry) and to then be dealt with in such manner as appears appropriate.
Pursuant to s.67N(2) of the Family Law Act 1975 the court declares that it is satisfied that the records of Centrelink are likely to contain information in relation to the children [X] born [in] 2002 and [Y] born [in] 2004 and any other identifying information such as last known address and information in relation to the person, MS GREEN, born [in] 1970, who has possession of the said children.
The Chief Executive Officer of Centrelink provide to the Registrar of this Registry of the Federal Magistrates Court of Australia such information as is contained in or comes into the records of Centrelink about the location of the said children and or the person who has possession of the said children.
For the purposes of the preceding order:
(a)The Secretary or appropriate authority shall cause the records of the Department to be searched within seven (7) days after service on the Department of a sealed copy of this order, and every month thereafter while the order is in force.
(b)The Secretary or appropriate authority shall cause the Registrar of this Court at its Parramatta Registry to be advised in writing of the result of each search of the Department’s records immediately after each search.
(c)Information about the children’s location shall include information about the location of Ms Green, with whom the children are believed to be and shall include but not be limited to;
(i)Information about any address of the children or of the said;
(ii)Information about the name and address of any person with whom the Department’s records suggest the child or the said Ms Green may be, and
(iii)Location information arising from any payment by the Department to or in relation to the children or the said Ms Green, or any person with whom the Department’s records suggest the child or the said Ms Green may be, including:
A.The name of any financial institution conducting any account to which such payment is or was made, and the branch at which the account is or was conducted; and,
B.The name and number of any account to which such payment is or was made.
(d)Pursuant to sub-s.67N(6) of the Family Law Act 1975, this location order remains in force for a period of twelve months.
(e)Upon provision of a response to the above Commonwealth Information Order, direct the release to Mr Davis of such address as is then disclosed for the children [X] and [Y].
That Ms Green shall pay to Mr Davis a sum of $750 representing costs expended by him in attempting to spend time with the children [X] and [Y] and with respect to same Ms Green shall attend to payment of the above sum (whether in one or more payments) in total no later than 21 April 2012 and, provided payment is made by that date, no interest shall accumulate.
Dismiss the Application in a Case file by Ms Green on 17 August 2011 for want of prosecution.
Dispense with personal service of these orders upon Ms Green on the condition that a scanned copy of the sealed order, as provided to Mr Davis, is forwarded by him to Ms Green by 7pm today at the above email address.
Ms Green shall be and is hereby restrained from changing, discontinuing or otherwise interfering with her present email address as above.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
THE COURT NOTES THAT:
The Contravention Applications filed by Mr Davis have proceeded before the Court today on an undefended basis:
(a)Ms Green was, by order made 17 August, 2011, ordered to attend Court today in person and has failed to do so.
(b)The Court has refused an application by Ms Green to appear by telephone.
(c)Notwithstanding the above refusal of Ms Green’s application to appear by telephone the Court has contacted Ms Green by telephone and she has refused to speak.
(d)Ms Green has filed an Application in a Case seeking transfer of the proceedings and variation of the above primary orders but has not today, or on any previous occasion, sought to press such application and it is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Davis & Green is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
SYC 2567 of 2009
| MR DAVIS |
Applicant
And
| MS GREEN |
Respondent
REASONS FOR JUDGMENT
These are proceedings commenced by way of Contravention Application filed 21 July 2011 by the Applicant husband, Mr Davis.
The Respondent to the proceedings, the Respondent wife, Ms Green, is not present.
Since the filing of the initial Contravention Application on 21 July 2011, it is alleged that there have been ongoing contraventions, and as a consequence, two further Amended Contravention Applications joining each of those periods have been filed on 1 September and 5 October 2011 respectively.
With respect to the Applications I am satisfied as to service.
With respect to the primary or first Application an Affidavit of Service is on file.
With respect to subsequent Applications, orders were made by Dunkley FM on 17 August 2011, at which time a solicitor appeared as agent for the solicitors then representing Ms Green but which solicitors have since filed a notice of ceasing to act, and directions were made listing the matter for hearing today, 21 October 2011, and deeming effective service of all further process upon Ms Green’s solicitors. That occurred with respect to the second Contravention Application.
The third Application has not been served, but I am prepared to dispense with service in the following circumstances:
a)An application in a case has also been filed by Mr Davis and which is before me today. That application seeks a Location or Commonwealth Information Order; and,
b)The Application in a Case and supporting Affidavit were forwarded to Ms Davis following the Notice of Ceasing to Act having been filed and served care of the address provided in the Notice of Ceasing to Act as the address for service of Ms Green. The letter was forwarded by registered post and was returned refused.
Accordingly, I am satisfied that in all probability, as Ms Green’s address is not known and attempts have been made through a process server to effect personal service, that it would have simply been again returned refused.
I am otherwise satisfied that Ms Green is aware of the proceedings and the fact that the matter is listed before the Court for hearing today. That arises from the following:
a)Ms Green was legally represented, and her legal representative or their agent was present at the time that the hearing date was allocated;
b)Ms Green subsequently made, through her then solicitors, an application to appear at today’s hearing by telephone. That application was dealt with by Dunkley FM in chambers and refused;
c)Subsequent to such refusal being communicated to Ms Green, and after her solicitors had ceased to act, emails have been forwarded by Ms Green to Dunkley FM’s chambers on each of 30 September and 4 October 2011 purporting to have Dunkley FM review or reconsider his decision. That was refused by Dunkley FM and, in any event, Ms Green has been advised by the Court that her attendance in person is required; and,
d)A specific order was made by Dunkley FM on 17 August 2011 that “The respondent is to be personally in attendance at Court on 21 October 2011 at 9.30 am.”
Ms Green has not appeared, has been called on each occasion that the matter has been called on and, it now being quarter to one (1), is still not present.
Attempts were made by the Court to contact Ms Green by telephone, notwithstanding the refusal of her application to appear by telephone and the clear and specific order made by Dunkley FM requiring her personal attendance. Those attempts have been unsuccessful.
One number was attempted and went straight to message bank. Another number, being the number upon which Mr Davis contacts the children, was not attempted, as he had advised the Court in his evidence that the phone is only ever switched on at the times that he calls the children, and thirdly, Ms Davis was contacted and successfully contacted on a telephone number located on the Court file. However, after answering and being put on loudspeaker for the purpose of participating, Ms Davis did not then respond or speak. After some time, the call was terminated.
I am satisfied in the above circumstances that Ms Davis is fully aware of the proceedings, is fully aware of her obligation to participate in the proceedings by appearing in person today and has consciously determined not to.
In those circumstances, I propose to deal with the matter to finality and deal with all of the Applications presently before the Court, comprising the three Contravention Applications, as I have referred to, the Application in the Case filed by Mr Davis seeking a Location Order and also an Application in a Case filed by Ms Green in which seeks that the proceedings be transferred to the Albury Registry of the Federal Magistrates Court, where the proceedings which gave rise to the primary order occurred, and otherwise seeking an order which would have the effect of suspending all time between the children the father.
Ms Green has most assuredly and for some little time now, particularly since July of this year, effectively terminated that time. She has also done that in circumstances whereby she has failed to prosecute any application before this Court and, more importantly, has failed, as she is required to do by the primary order, to advise Mr Davis of the children’s whereabouts.
The primary orders that are the subject of the Contravention Applications are orders made by consent, and with the involvement of an Independent Children’s Lawyer on 17 November 2010.
At the time that those orders were made both parties were present and represented by counsel, and Ms W of the Legal Aid Commission appeared on behalf of the Independent Children’s Lawyer. Accordingly, it is difficult to understand or to entertain any thought that Ms Green was not aware of the orders and did not understand them.
The orders most assuredly remain on foot. Other than the application made late in the day by Ms Green by her Application in a Case, filed 17 August 2011, being the date the matter was last before the Court, she has not taken any step whatsoever to participate in the proceedings or to comply with her obligations under the primary orders.
I note for the sake of abundant caution that both of the Applications in a Case to which I have referred together with all three Contravention Applications are clearly noted on the Court system, on the folio of the file and, indeed, on the Court copies of each of those documents as being before the Court today. And accordingly, I am satisfied I am seized of jurisdiction to deal with all five Applications.
The orders that are in force provide that the husband and the wife are to have equal shared parental responsibility for the two children of the relationship, [X], born [in] 2002 and accordingly nine (9) years of age, and [Y], born [in] 2004 and accordingly now seven (7) years of age.
Quite clearly there are some medical issues in relation to [Y]. He suffers diabetes, which is made clear from the terms of the orders, from the material that is filed and also from the various emails that have been sent to the Court by Ms Green. However, orders are included to deal with those matters.
The primary orders provide for a regime of time at present which can be essentially summarised as being for a weekend per school term and for one-half of the school holidays. That arises in the context that at the time the orders were made, the father was living in Sydney and the mother in [Suburb A] in Victoria, proximate to [Suburb B].
The father has now relocated to [location omitted]. That has slightly increased the distance but has not rendered the orders or their operation at all unworkable. Indeed, these parties have always lived some substantial distance apart.
The respondent has not participated in the proceedings to give any evidence. I am not required nor inclined to read her material in those circumstances.
In any event, however, I am cognisant of the matters that are alleged by her, as they are common to both parties’ materials. It is asserted in an Affidavit that was filed by Ms Green on 17 August 2011, and which has been read in anticipation of Ms Green participating in these proceedings today, that she has not complied with the primary orders since July of 2011 on three apparent bases, all relating to alleged breaches of the primary order by Mr Davis.
It is asserted that on one occasion in December 2010, being Christmas school holiday time, that the children travelled by plane, and accordingly, it was necessary for them to be collected from [Suburb B] Airport. The fact that Ms Green raises such a complaint is difficult to understand if she was genuinely motivated by meeting her children’s best interests. The real cause of concern would not appear to be that the children were returned to [Suburb B] rather than [Suburb A], a distance in travel time of about 40 minutes and which was not traversed by Ms Green, in any event, but by her parents, but that the children were returned by Mr Davis's fiancée rather than by Mr Davis.
The second alleged concern, which I can only infer from the manner in which the material is set out by Ms Green is alleged to be part of a reasonable excuse, again relates to the children being returned by Mr Davis’s fiancée rather than by Mr Davis.
The third complaint is that in April, Ms Green’s then lawyers received a letter from Mr Davis which is described as “...regarding a serious and life-threatening incident involving [Y]’s diabetes whilst in Mr Davis’s care.”
The primary order contains provision with respect to [Y]’s diabetes treatment and provides, for a reason that is not explicable from the terms of the order but no doubt has some meaning for the parties, in order 8(b) as follows:
“ That for 12 months from the date of these orders, in the event of the child [Y] suffering from a hypoglycaemic attack, which means his blood sugar level falls below 3.5, in the care of the husband, the husband shall forthwith take [Y] to a medical practitioner and notify the wife.”
There are a number of difficulties with that order.
First, the attempt to define a hypoglycaemic attack by the inclusion of the words “which means his blood sugar level falls below 3.5” would not appear to have any medical basis. A hypoglycaemic attack would appear to involve significantly more symptomatology than simply a particular blood sugar level reading.
Secondly, the complaint that is raised by Ms Green is that she was not forthwith notified and the child was not taken to the doctors when that circumstance arose on one occasion. However, Mr Davis’s evidence makes clear that the child did not require medical treatment, that he had contacted the [omitted] Hospital, obtained advice and had been told by them that he did not need to see a medical practitioner.
The second limb of the complaint is that the notification was not provided forthwith and was provided instead through Ms Green’s lawyers. The difficulty for Ms Green in seeking to raise such a criticism is she refuses to communicate, including with this Court. She does not provide Mr Davis with her address or any means of being able to contact her. An email address is known to the Court and will be included in these orders both for the purpose of service and future communication as well as restraints upon changing it.
However, it does not appear from the evidence before me, including Ms Green’s evidence, that she has ever taken any step to advise Mr Davis of any means by which he might reasonably or expeditiously contact her. Attempts that have been made by Mr Davis to contact Ms Green through her parents, who live in close proximity to her it would appear, have been anything but successful, including their returning mail not known and refused.
In those circumstances, the belligerence demonstrated by Ms Green and the lack of focus demonstrated by her upon the children’s best interests, rather than apparently preferring to play games, does her no service at all.
Otherwise, doing the best one can in reading Ms Green’s affidavit, it is difficult to understand what is asserted by her as the basis for which the children’s relationship with their father should be terminated, which would be the effect of an order made which suspended or discharged the existing primary order, as I am perfectly satisfied from the evidence before me that Ms Green would not, absent an order, take any step at all to facilitate the children’s relationship with their father. Indeed, she seems to go out of her way to ensure that impediments and barriers are placed at every opportunity.
More importantly, however, the attitude that is demonstrated by Ms Green not only towards these proceedings but the orders in light of the material that she raises causes some real concern.
As contravention proceedings, it is not asserted by Mr Davis that the matter should proceed other than as a sub-division E (s.70NEA) contravention. It is not asserted by Mr Davis that the Court should, pursuant to s.70NAE(4) find a contravention involving a serious disregard by Ms Green of her obligations with respect to the primary orders, although her attitude would certainly appear to border upon that.
It is not sought to allege or proceed in a fashion as would invoke the requirement to proceed on the basis of the case being established beyond all reasonable doubt (s.70NAF) and it is not suggested that a pecuniary penalty or period of imprisonment should be imposed and it is a credit to Mr Davis that he has sufficient insight and sensitivity to his children’s needs to not seek to impoverish or imprison the mother of these children with whom these children clearly live. Accordingly, the civil standard of proof set out in section 70NAF applies to the proceedings.
As a sub-division E contravention, I am required to turn my mind to consider each of the requisite elements.
As I have indicated, I am satisfied that there is an existing primary orders in force of which Ms Green is aware and which in all probability she understands. She was represented by competent counsel when the orders were made and has, until July of this year, complied with her obligations by and large, at least as regards the terms of order 4, if not the spirit and intention of the orders, particularly the order for equal shared parental responsibility. In that sense some insight into Ms Green’s attitude is gleaned from the manner in which Ms Green refers to the children in her email correspondence with the Court referring to them consistently as “my children”.
For the sake of abundant caution, I have also marked each of the email communications which I have referred to of 30 September and 4 October 2011 as exhibits in the proceedings, respectively “F1” and “F2”.
I am otherwise satisfied, based on the evidence of Mr Davis, which is not challenged, and, indeed, by the concessions made by Ms Green in her affidavit, that the children have not been provided for the periods of time that are alleged to represent contraventions, being 9 July 27 August and 1 October 2011 and continuing to date.
On that basis, I am then required to turn my mind to and consider whether a reasonable excuse as defined by s.70NAE is established.
There are in essence two defences established by that section, the first being, and as set out in s.70NAE(2), that the respondent did not understand their obligations. I have already dealt with that matter.
The remaining possible defence is as set out in s.70NAE(5) and being:
“ The respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and the period during which, because of the contravention, the child and the person did not spend time together was no longer than was necessary to protect the health or safety of the person referred to.”
I can infer from that which is put in her affidavit by Ms Green that she seeks to assert that as a consequence of [Y] having a blood sugar level of 2.8, being clearly below 3.5, and not having been taken immediately to a medical practitioner, nor her being advised forthwith of that event that this constitutes a reasonable excuse on the basis that Ms Green would have reasonable grounds to not allow the children to attend time with their father, as it was necessary to protect their health or safety and that this non-compliance has been for no longer than necessary. I am not so satisfied.
Even based on the material that is put by Ms M commencing at para.20 of her affidavit, I have real concerns as to the genuineness of any concern that she held. Ms Green goes to great efforts to indicate the testing regime in relation to [Y] for the purpose of his blood sugar levels, indicates that she believes his condition is life-threatening and talks in such terms. She describes that in the past when [Y]’s blood sugar level has been as low as 3.1 that it is almost impossible to wake him. That is not what is described by Mr Davis on the occasion when his blood sugar level was 2.8. It would appear indeed, and to quote Shakespeare, “that much ado is made about nothing”.
It is otherwise clear to me from the evidence given on oath today by Mr Davis, albeit that this evidence was very brief, as the matter was proceeding on an undefended and unopposed basis, that there are ongoing difficulties in relation to [Y]’s diabetes created by Ms Green, and if her focus was as clearly upon the concern that [Y]’s type 1 diabetes is a life-threatening condition, those difficulties perhaps would not apply, such as, and is referred to in the very terms of the primary orders which is alleged to be breached, the need and importance for the same testing device to be used by [Y] at all times and for it to travel with him so that there can be a clear record kept of all such matters.
There is an obligation imposed by order 13 for Ms Green to provide for each period of time that the children spend time with their father all of [Y]’s insulin doses, timing for those doses, sufficient insulin to cover the time with his father or a prescription for him to fill, a glucose meter for use by the child, and such meter shall be used by the husband in accordance with the recommendations of the treating health practitioner and returned at the conclusion of each period. In para.15 of the orders is a notation that it is necessary for the same glucose monitor to be used for [Y] so that his doctors have a complete record.
Mr Davis’s evidence is quite clear that the testing device he receives is blank, and accordingly, he receives no records. That would appear to be at least contrary to the spirit, if not the express terms as defined in the legislation, of the meaning of equal shared parental responsibility, let alone the orders quoted above.
In all of the above circumstances, I cannot be satisfied that there exists any reasonable excuse on the part of Ms Green.
Section 70NEB then provides the remedies which the Court can apply in the event of a finding of contravention. As indicated, I am not urged by Mr Davis, and to his credit and consistent with what I am satisfied is his insight and sensitivity as regards his children, to impose a period of imprisonment or a monetary penalty. Indeed, that would only follow, this being the first contravention application, if sub-s.(4) were invoked and I was satisfied that it was a serious disregard. I am not urged to make such finding.
I am urged to impose a bond, and I am satisfied that that is entirely appropriate. There may be some logistical difficulty, as Ms Green is not here to enter into that bond forthwith, but I propose to make orders which require that such bond be entered in the Albury Registry of the Court within seven (7) days and that failing that occurring, that a warrant may issue for Ms Green’s arrest to bring her before the Court and so that she can then have the opportunity of entering into the bond.
The legislation makes clear in dealing with the Court’s power to impose a bond that whilst an order may be made requiring it to be entered, that it is a matter entirely for Ms Green as to whether she chooses to accept that and enter into it voluntarily. It cannot be imposed upon her otherwise, but if she refuses to do so, then consideration will need to be given to such other penalty as will follow. They are all matters within Ms Green’s control.
The bond, once entered into will provide for Ms Green to be of good behaviour and to comply with the orders that are in place subject to such variations as will be made by me today. Failure to do so carries penalties.
The other aspect of the matter is that I am satisfied that some variation of the orders should occur so as to provide further definition to the commencement and conclusion of times to provide and overcome difficulties that have recently been expressed by Ms M as to who travels with the children and the like. They are not substantial variations, but variations very much as envisaged by s.70NBA as having their primary focus upon avoiding any future dispute, uncertainty or, regrettably, contravention.
Application is also made by Mr Davis to be reimbursed expenses which he has incurred for the three occasions that he has attempted to spend time with the children, as he is entitled to under the primary orders. Subsection 70NEB(1) allows and permits payment not only of costs, but reimbursement of expenses which have been thrown away. I propose to make such an order.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 13 January 2012
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