De Zobra and De Zobra

[2009] FamCA 1076

FAMILY COURT OF AUSTRALIA

DE ZOBRA & DE ZOBRA [2009] FamCA 1076

FAMILY LAW – CONTRAVENTION

APPLICANT: Mr De Zobra

RESPONDENT: Ms De Zobra

FILE NUMBER: MLC 515 of 2008

DATE DELIVERED: 5 November 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 5 November 2009

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Combies

SOLICITOR FOR THE RESPONDENT: Stynes Dixon Lawyers

Orders

1. That the contravention alleged in the husband’s Application for Contravention filed 22 October 2009 is found proven against the wife but there shall be no penalty imposed.

2. That paragraph 4(a) of the orders made on 16 October 2009 shall be varied to read:

   “Each alternate week-end from conclusion of school Friday or at 7.00pm if any of the children have an extra-curricular activity after school on Fridays until 6.30pm Saturday, commencing 13 November 2009.”

3. That my reasons for judgment given this day shall be transcribed and a copy kept on the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 515 of 2008

MR DE ZOBRA

Applicant

And

MS DE ZOBRA

Respondent

REASONS FOR JUDGMENT

1. The husband has brought a contravention application that he filed on 22 October 2009.  It contains one allegation that the children’s mother, on 16 October 2009 at 6.30 pm at the former matrimonial residence, without reasonable excuse, did not allow the children to spend time with the husband despite orders made by the court that same day.  

2. I have followed the strict procedures set out in Rule 21.08 of the Family Law Rules.  The allegation was put to the mother.  She denied it. 

3. Section 112AB(1)(a) relates to contraventions.  It states that:

   (1)A person shall be taken for the purposes of this part to have contravened an order under this Act 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.

4. Section 112AC(1) and (2) deal with what amounts to a reasonable excuse:

   A person shall be taken to have had a reasonable excuse for contravening an order if they contravened the order under this Act if:

   (a)The respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)The court is satisfied that the respondent ought to be excused in respect of the contravention.

5. I should start by noting that the form of the orders certainly does leave an ambiguity and it should, in my view, be tidied up.  An issue for me is whether they are such that they were incapable of clear compliance.  The relevant order on 16 October 2009 (the same day of the alleged breach) was as follows. 

   (4)      That the children spend time with the father as follows:

   NOT BY CONSENT IN RESPECT OF THE CHILD [M]:

   (a)Each alternate weekend from the conclusion of school Friday (or after any extra-curricular activity the children or each of them attend after school on Fridays) until 6.30 pm Saturday, commencing 16 October 2009.

6. The husband gave evidence in the form of his affidavit and he was cross‑examined.  The wife made a response to the effect that she was prepared to make the children available at the end of the extra-curricular activity (a dance class) that they had that afternoon.  She denies that she did not make the children available and I heard her evidence and her cross-examination.

7. Briefly put, the husband’s evidence is that he attended at the home to collect the children at 6.30pm.  He found that there was no-one at home.  He waited about 15 minutes and when no-one had come by 6.45pm, he left a note on the door advising the mother that he had been there and requesting her to contact him.  He said that he waited down the street for 30 minutes and called the house to find whether anyone was at home but did not receive an answer.  He said that he made several attempts to contact her by telephone over the weekend but his calls were not answered and certainly he received no contact from the wife.

8. He then wrote to the wife’s solicitors on the first working day after that, Monday, 19 October 2009.  He outlined pretty much precisely what he has sworn occurred and noted that it was extraordinary in light of the comments made by me when I advised both parties that day to comply with orders and advised them of the consequences of not complying with orders.  He advised he was going to make an application for contravention.

9. He attached to his affidavit a letter received from the wife’s solicitor dated the following day in which it was stated that as he was aware the girls attend dancing class on Friday nights.  The girls arrived home at about 7 pm.  He did not attend.  The older daughter did not receive any phone calls from the father on either Friday or Saturday.  In any event, the wife was prepared to provide make-up contact.

10. The wife says that there has been a pattern for a long time whereby the husband would ring at around about 7 pm or close to 7 pm to check that the girls were home.  She says she received absolutely no note, no phone calls, nothing at all to indicate that the husband wanted to collect the children and that as there had been other times when he had simply failed to attend, she did nothing at all about it.

11. The versions are diametrically opposed.  I find the husband’s version by far the more probable version.  These parties had been at court that very day.  The husband says that there was a discussion outside the court about the time that the arrangement would start that night and I believe him.  The wife’s version that the discussion outside court did take place but was not about the time, but whether or not the order would commence that night, simply makes no sense at all, given that the parties had just entered and signed consent orders indicating very clearly that the order was to start that day.

12. The husband’s version is also more probable in that he wrote the letter almost contemporaneously setting out what he has sworn occurred.  His version strikes me as completely plausible that he left word for and tried to contact the wife.  The fact that absolutely no effort was made on her part to try to effect the contact leads me to conclude that his version as to waiting for the children and simply not finding them available is the likely version as to what occurred.

13. The wife has simply not done what she was required under the orders in having these children available and she made no effort at all to ensure that they could then be available for their father.  She says that she did nothing because in the past he had frequently not turned up.  Only two particular occasions were put to him and on that basis.  As a matter of procedural fairness and following the rule in Brown & Dunn, I note that if there were other occasions they should have been put to him so he could answer them.  His answer was quite immediate and firm in relation to the two occasions put, that he was overseas, that he had written to the solicitors, and that the wife was aware of those occasions and had consented.  I accept his evidence.

14. I am satisfied that the wife did fail to provide the children and although the fact that there was not a precise starting time is an issue that I will address, it does not provide a reasonable excuse for her simple failure to have the children available on the very night and the very weekend when the parties had been in court, had been fully warned about compliance with orders, and had left the court that very day.

15. So I find the allegation proven.  As well as dealing with the wife, I will also amend the particular order so that there is no room for ambiguity to be argued in the future.  I think it is going to be better for these girls if I make a specific start time.

DISCUSSION

1. In terms of punishment I take the view that this is a firm warning to the mother.  I shall not impose any sentence this time.

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

Associate: 

Date:  5 November 2009