Denny and Denny
[2006] FMCAfam 49
•19 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENNY & DENNY | [2006] FMCAfam 49 |
| FAMILY LAW – Contravention – breach of orders made by Brown J on FAMILY LAW – Judgments and orders – meaning of alternative weekend contact – alternative weekend means second weekend after holiday period. |
| Family Law Act1975, Div.13A, s.70NJ |
| Denny & Denny [2005] FamCA 141 Lamont & Bright (unreported, Family Court of Australia, 6 April 2000) |
| Applicant: | MR DENNY |
| Respondent: | MS DENNY |
| File Number: | DGM 3905 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 17 & 19 January 2006 |
| Date of Last Submission: | 19 January 2006 |
| Delivered at: | Dandenong |
| Delivered on: | 19 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | In person |
ORDERS
THE COURT FINDS THAT:
On the contravention application of the father filed on 15 December 2005 and upon hearing the applicant father and respondent mother in person, the Court being satisfied that the wife has without reasonable excuse committed contraventions of an Order under the Family Law Act affecting children, being contraventions of paragraph 3(a) of the Orders made in the Family Court of Australia on 10 March 2005 on :
(a)18 March 2005;
(b)15 April 2005;
(c)27 May 2005;
(d)24 June 2005;
(e)22 July 2005;
(f)5 August 2005;
(g)19 August 2005;
(h)14 October 2005.
THE COURT ORDERS THAT:
The court being satisfied that the mother behaved in a way that shows serious disregard of her obligations within the meaning of s.70NJ of the Family Law Act1975, it is ordered that the wife enter into a bond for 12 months requiring her to:
(a)be of good behaviour;
(b)attend upon a counsellor as decided by the counsellor but no less than once a month - such counselling to occur at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
(c)attend a post separation parenting program - such counselling to occur at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia.
The Orders of Brown J of 10 March 2005 be varied such that :
(a)Order (3)(a) reads:
“until such time as [L] commences school, on each alternate weekend from 6:00p.m Friday until 4:45p.m Sunday;”
(b)Adding (iii) to Order (3)(b) which reads:
“that in 2006 the father have contact from 4:00pm on 21 May 2006 to 4:00p.m. on 28 May 2006 and order 3(b)(ii) be suspended in 2006;”
(c)Order (10) be amended to read:
“(a)at the Child Care Centre on [address omitted] in [N] at the commencement of contact; and
(b)at [N] Contact Centre at the conclusion of contact;
(c)if the child is not in attendance at the Child Care Centre or [N] Contact Centre is not available, contact change over will take place in the reception area of [N] Police Station;
(d)the father meet the fees imposed by [N] Contact Centre.”
In addition to the contact ordered by Brown J:
(a)The father have contact from 6:00p.m. on 3 February 2006 to 6:45p.m. on 11 February 2006;
(b)Following the contact in (a), the father’s weekend contact resume on 17 February 2006.
The parties forthwith commence and maintain a communication book with respect to the child [L] born [in] 2002, which book shall travel with the said child between the parties’ respective places of residence.
Pursuant to s.65L (a) of the Family Law Act 1975, the Director of Court Counselling in the Dandenong Registry of the Family Court of Australia do appoint a counsellor for a period of 12 months to:
(a)supervise compliance with these orders; and
(b)assist the parties (in particular the mother) in relation to compliance and the carrying out of these orders.
Each parent notify the other of their address and mobile telephone phone number within 48 hours of any change thereof.
The mother provide the father with the name, address and telephone number of the Child Care Centre by 12:00p.m. on 20 January 2006 and that she notify the child care centre of these orders and the father’s name and telephone number.
Each party be and hereby are restrained from removing and/or causing or allowing the child [L] born [in] 2002 to be removed from the Commonwealth of Australia.
IT IS FURTHER ORDERED THAT:
The Australian Federal Police place the name of the said child [L] on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.
The mother’s application filed by leave on 19 January 2006 be dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.A copy of the orders of Brown J referred to herein are annexed hereto.
IT IS NOTED that publication of this judgment under the pseudonym Denny & Denny is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGM 3905 of 2005
| MR DENNY |
Applicant
And
| MS DENNY |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application with respect to a number of contraventions alleged in the contravention application filed 15 December 2005. Earlier on in the hearing of the matter, I struck out the ninth allegation relating to 19 August 2005 and the 12th and 13th allegations relating to 17 April 2005 and 11 September 2005 on the basis that there was not a prima facie case on the material with respect to those allegations.
What remains is a series of allegations that the mother failed to attend at the contact handover point of [C] Shopping Centre at 6 pm on Fridays, which were the Fridays that were the commencement days for the purpose of the fortnightly contact as ordered by Brown J on 10 March 2005. Order 3(a) of those orders, which her Honour made after a trial, was:
That the husband have contact with [L] until such time as [L] commences school on each alternate weekend from 6 pm Friday until 6 pm Sunday, commencing 18 March 2005.
A further order, order 10, provided:
10.That subject to any agreement to the contrary between the parties, contact changeovers other than changeovers at school after [L] has commenced school occur:
(a)at [C] Shopping Centre, outside the [omitted] Supermarket main entrance at the commencement of contact; and
(b)at [F] Shopping Centre, outside the [omitted] Supermarket main entrance at the conclusion of contact.
Alleged grounds of contravention
The father says that on 18 March 2005 - which, under the orders, would have been the first occasion for contact to occur - the respondent mother failed to attend at the contact handover point. He telephoned her at 6.15 pm. She was home and she demanded that he attend at her residence so as to collect the child, which he did with the child's grandfather. The mother said that she cannot recall why she was not there but that she had a ‘serious reason’ to be at home, although she cannot now recall the reason.
With respect to this contravention, I find that the applicant father has established that the mother failed to comply with the orders in that she failed to attend at the contact centre at 6 pm on 18 March 2005 as specifically ordered by Brown J. I find that the mother did not have a reasonable excuse for failing to comply with the order in that I do not accept the evidence in the form of ‘a serious reason’, which she cannot now recall, for not attending as ordered by her Honour Brown J on the first time contact was to occur. In the circumstances, I therefore find the contravention with respect to 18 March 2005 proved.
The second contravention relates to 15 April 2005. The relevant orders are the same as the first contravention. On this occasion the father sets out that the mother failed to attend at the contact point for the commencement of contact. He telephoned her on her mobile phone to discover that she was at [D] Shopping Centre and she said that he should meet her in about two hours.
In evidence the mother said that on that day she had an appointment to attend at a photographic portrait store at [D] with respect to some photos and that for that reason she could not attend at the contact changeover at 6 pm as ordered by the court. She says she tried to let the father know but he hung up on her, and described difficult telephone calls wherein she alleges that he denigrated and criticised her. She also claims that such denigration occurred at contact changeovers.
I am satisfied on the evidence that the mother did not attend at [C] Shopping Centre as she ought to have in accordance with the orders. This was very soon after the orders were made. The excuse that she gives of attending at [D] to attend at a photographic store does not in my view amount to a reasonable excuse for failing to comply with the orders: rather, it shows an inappropriate prioritisation of attendance at shops over and above conduct specifically ordered by the court orders. In the circumstances I find that the contravention is proved.
With respect to allegation 3, which relates to 29 April 2005, I have bare allegations from the mother that contact took place. The evidence from the father was simply that contact did not take place. I bear in mind that the standard of proof in these matters is on the balance of probabilities, but I also take into account the serious nature of contravention applications. On the very limited evidence before me in this matter, I have ultimately concluded that I am not able to be satisfied that this particular contravention has been proved.
With respect to the fourth contravention allegation, relating to 27 May 2005, the father sets out that the mother again failed to attend and describes a telephone call in which she abused him. She says that there was an agreement to meet elsewhere and later in evidence said that she could not recall exactly. With respect to this contravention I prefer the evidence of the father. I find no basis upon which the mother had a reasonable excuse for not attending the contact handover point at 6 pm on the day as required. I therefore find that this contravention has been proved.
The fifth contravention relates to 24 June 2005. The father again says that he attended and the mother did not; he had to telephone the mother and did not end up receiving the child for contact until the next day. The mother says that there was a misunderstanding about the changeover point and, at one point in her evidence, stated that she ‘refuses to be a sheep following court orders’. With respect to this contravention I prefer the evidence of the father. I find that the contravention has been proved and that the mother has not established that there was any reasonable excuse.
With respect to the sixth contravention allegation which relates to 8 July 2005, the mother disputes that this was a weekend when the father would have been due to have contact. The week before, the father had contact for a weekend and then held the child for the following week so as to effect the seven days' contact provided for in the court orders. The mother maintains that the father was in breach of the order as he was meant to return the child on Sunday night and collect the child on Monday morning; but in any event she did not intend him to receive the seven days' contact as ordered by the court.
To the extent that the father may have been technically in breach of the precise terms of the order relating to those periods, it seems to me that he would have had an obvious reasonable excuse in light of the attitude of the mother to the contact as ordered.
This is the background to which the contravention allegation arises. On 3 July 2005 the child was back with the mother, and the father says that his next fortnightly contact weekend (assuming it occurs every fortnight throughout the year, regardless of the week-long contact) would have been on 8 July 2005. The mother says that his contact should commence the following fortnight.
I am of the view that the usual way in which one would interpret an order of this type is that following holiday contact to the father, the next weekend would be with the mother and the weekend after that, the father's alternate weekend contact. That is, alternate weekend contact resumes after the holiday period, with the mother to have the first weekend and the father the second: see Lamont & Bright (unreported, Family Court of Australia, 6 April 2000 per Faulks J). In this regard, I therefore do not find that contravention allegation 6 has been proved.
With respect to allegation number 7, which occurred on 22 July 2005, the father says that he attended at the contact point and the mother did not attend. He says that there were disputes about child support. Issues relating to child support payment methods have been referred to vigorously throughout the hearing by the mother. The father says that he eventually convinced her to meet him at [F].
The mother said that she was very sick. She admits that the handover eventually took place at the [F] as alleged by the father. She says that on 22 July 2005 the child was involved in an accident at the child care centre. The mother said she had forgotten to telephone. She said when she arrived at the child care centre at 6.30pm, the child care centre told her of the child’s accident. She says that she arrived at the child care centre so late because she finishes her tuition at [omitted] University in the city at 4.30 and she also attends a gym for 20 minutes on the way home to [N]. The mother had not even arrived at the child care centre until 30 minutes after the ordered handover time. I find that the mother has not established that there was any reasonable excuse for contravening the orders and that allegation number 7 is proved.
I therefore have found that contravention allegations 1, 2, 4, 5, 7, 8 and 11 have been proved.
Penalty to be imposed
I now turn to determine what orders I ought to make as a result of my findings with respect to the contravention.
Pursuant to division 13A of the Family Law Act1975, I must first determine whether or not to proceed on this matter pursuant to subdivision B or subdivision C.
In this matter, the mother has not previously been found to have contravened a court order. However, I am satisfied that in this case the mother has behaved in a way that showed a serious disregard of her obligations under the primary order. I come to this conclusion as a result of the nature of the circumstances attendant upon a number of the contraventions that were the subject of the proceedings, in particular:
a)her conduct in attending upon a shop at [D] rather than attending for contact handover;
b)her comments during the course of the hearing that she ‘refuses to be a sheep following a court order’;
c)her continued resistance of and attempts to ensure that the father did not obtain a seven-day period of contact as specifically ordered by Brown J: see Denny & Denny [2005] FamCA 141;
d)her lack of explanation with respect to count 8, despite the fact that she was clearly available later that day; and
e)her lack of any explanation (that has any degree of credibility about it) for the events that occurred with respect to count 1, particularly given that count 1 related to the very first contact period that was ordered by her Honour.
f)I also have regard to her demeanour and conduct during the course of the proceedings.
All of these matters lead me to conclude that she has behaved in a way that shows a serious disregard to her obligations.
I have considered what orders are appropriate in this matter. Having regard to the conduct of the mother and her responsibilities to the child, I find that a bond for 12 months is appropriate. This provides a penalty in the sense that the mother may be dealt with if she breaches the bond in the future. It also provides for conditions by way of counselling to assist her in complying with these orders.
Under the Act, it is also open to me to alter the existing contact or children's orders if appropriate. I have had regard to the considerations set out in section 70NJ. I note that the mother has not attended a parenting course and has not in the past been ordered to do so. I propose ordering the mother to attend such a course.
The balance of the orders that I propose largely relate to pick up from child care and use of a handover centre for return to ensure that contact is in fact facilitated in the way that effects the substance of the contact ordered by Brown J. In the circumstances I find it is appropriate that I make those orders as it is now clear that the mother will not otherwise comply with the order. In order to assist the mother to comply with the orders I propose that contact be supervised by a court counsellor under s.65L, that the parties use a communication book and exchange contact details. I also propose ordering the mother attend a parenting course.
In light of the mother’s attitude to contact, I will also restrain the parties from removing the child from the Commonwealth.
The final matter relates to the mother's application to vary the orders of Brown J. She filed this application during the course of the proceedings. Nothing that she has said or outlined in the proceedings leads me to the view that she has a prima facie or arguable case for a variation of the orders on the material before me today. In the circumstances I dismiss the wife's current application to vary the existing orders.
The mother must understand that she is obliged to facilitate contact as ordered by Brown J and that compliance with those orders is not optional.
As neither party is legally represented, I do not need to consider the question of costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 10 May 2006
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