De Zobra and De Zobra

[2008] FamCA 845

FAMILY COURT OF AUSTRALIA

DE ZOBRA & DE ZOBRA [2008] FamCA 845

FAMILY LAW – ORDERS – Contravention – Reasonable excuse 

APPLICANT: Mr De Zobra

RESPONDENT: Ms De Zobra

FILE NUMBER: MLC 515 of 2008

DATE DELIVERED: 3 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watt J

HEARING DATE: 3 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J. Stewart

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Mr G. Combes

SOLICITOR FOR THE RESPONDENT: Aughtersons

Orders

1. That the husband's application for contravention filed 20 August 2008 be adjourned to the judicial duty list at 10 am on Friday, 12 September 2008.

2. That the wife, whether by issue of a subpoena or otherwise, ensure the attendance at court on the adjourned date of Ms P to be available for cross‑examination in relation to the contents of her report dated 22 August 2008. 

3. That the wife file and serve an affidavit annexing the said report and setting out the qualifications of the writer of that report by no later than 4 pm on 5 September 2008.

4. That the wife file and serve her affidavit sworn this day in defence of the contravention application by noon on 4 September 2008.

5. That the wife pay the husband's costs of today occasioned by the adjournment, which I fix in the sum of $3500, and I leave the question of time for payment of the said costs to be determined at the adjourned hearing.

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. This matter has been the subject of earlier orders and was the subject of a hearing before Senior Registrar FitzGibbon on 5 August 2008.  The proceedings relate essentially to Part VII orders. 

2. There is an independent children's lawyer, who is not present today, and the reason for that is that the proceeding before me is an application for contravention filed by the husband on 20 August 2008.  There is no dispute about the regularity of that application; that is, it appears to have been served appropriately, and Mr Combes today appears. 

3. Mr Combes has stated to the court, as he is quite entitled to do, that his client does not contest the facts alleged; and they are quite striking, in the sense that the first alleged contravention took place on the day after an order had been made by the Senior Registrar leaving in place and unaffected, earlier orders which provided for the husband to see the children at certain times. Those earlier orders were made 14 February of 2008.

4. The history of the case is considerably complicated and I do not purport to recite it in full.  However, in the course of the children's dispute an independent children's lawyer has been appointed and an order has been made for Mr O, psychologist, to prepare a report.  He has furnished a report that was released on 10 June this year and that provided recommendations for the children to spend time with the father in excess of the time that is provided by the orders made in February this year. 

5. In the process of the preparation of that report Mr O was informed and made the father aware that there had been involvement between the children and someone who is said to be a psychologist on a therapeutic basis. 

6. After Mr O's report was released on 10 June the wife apparently, through her solicitors, directly approached Mr O by letter and requested that he speak to this person with whom the children had been consulting in a therapeutic capacity.  I am informed by Mr Combes that Mr O acceded to that request, Ms Stewart was unaware of this but certainly Mr Combes is able to say, on instructions, that Mr O did accede to that request. 

7. The upshot of that further request from the wife was that Mr O has arranged to see the children again on 8 September.  The assumption drawn by the legal practitioners, and I think correctly, is that he is likely  to issue an addendum to his report after those consultations with the girls on 8 September.

8. I recite this history in relation to reports because it is quite clear that at the hearing on 5 August before the Senior Registrar the wife was urging, at least by way of oral application or submission, that time spent by the husband with the children should be supervised.  Inferentially, from the order that was made on that day, that argument did not succeed; it was not supported by a report from this person, a person who may well turn out to be a treating psychologist for the children, Ms K.

9. Very belatedly, in terms of the context of this case and the sequence of hearings that has taken place, a report was obtained from that person, and that was forwarded to the husband's practitioners very recently, and they now have it.  Mr Combes read out a paragraph of that report to me wherein the writer expresses concern that the children may come to harm in the course of spending time with the husband. 

10. That is not evidence before me today.  It is not evidence in a form that I can accept.  However, what Mr Combes informs me and I now understand is that the wife's defence to the contravention application will not be that she has not contravened or that the facts are not as alleged but that she had a reasonable excuse, and in that context she seeks to rely on the evidence of this person to whom I have made reference as the therapeutic psychologist. 

11. The wife today seeks an adjournment of these proceedings so that that person's report can be annexed to an affidavit which sets out the qualifications of the person who has prepared the report, and it seems to be common ground that that person should be made available for cross‑examination if the case is adjourned. I have to say that a contravention application is an application that can have extremely serious consequences.  If indeed a person is found to have contravened an order without reasonable excuse, particularly in the circumstances of this case where the first contravention alleged occurred the day after an order was made, it could have extremely serious consequences. 

12. Where the allegation in defence is that there was reasonable excuse and that reasonable excuse is said to be based on statements made by - whether this particular report, or not - a particular person who is said to have expertise to give statements of the kind to which I have referred, that is, in my view, an important and compelling fact in favour of adjourning the matter until that evidence can be put before the court. 

13. Regrettably, I have nowhere to adjourn the matter to but to the duty list, on a later date, where the parties will have to take their chances about getting a hearing sufficient to enable that witness to be cross‑examined.  But I well understand the importance of that witness to the wife and the importance to the husband of having the opportunity to cross‑examine her.  So, for those reasons, I accept that the application for adjournment is made out, to enable the wife to present her defence to this serious allegation. 

14. It is also highly desirable that that should be dealt with, if at all practicable, in my view, before the matter comes back before the Senior Registrar, (on 19 September 2008) who will at that stage perhaps have a supplementary report from the single expert witness, Mr O, and that hearing should not be trammelled by the fact that there is lurking in the background a contravention application that has not been disposed of.  So I am keen to see the application dealt with, if at all practicable, before the resumed hearing or the adjourned hearing before the Senior Registrar.  I therefore propose to accede to the application for adjournment.

15. The husband has sought an order today for the payment of his costs of today, the amount of $3500 being sought not being challenged by Mr Combes.  That includes solicitors' costs and counsel's costs, including costs of a conference.  As I say, the amount sought was not challenged.  However, what is said is that the wife is in financial circumstances where it is difficult for her to pay that amount and that the question of payment should be reserved to the adjourned date.  So I will make the order that the wife pay the husband's costs of today occasioned by the adjournment, which I fix in the sum of $3500, and I leave the question of time for payment of the said costs to be determined at the adjourned hearing.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate: …

Date:  8 September 2008