EHLERS & GEERING

[2015] FamCA 861

FAMILY COURT OF AUSTRALIA

EHLERS & GEERING

[2015] FamCA 861

FAMILY LAW – CONTRAVENTION – where the father alleges the mother breached orders of the court – where the meaning of contravention of an order is discussed – where the court is not satisfied that on the balance of probabilities the wife intentionally failed to comply with the order – where one contravention is dismissed – where the other contravention is admitted – where the court is not satisfied that the wife has a reasonable excuse for breaching the order ––where judgment is reserved in relation to penalty.

Family Law Act 1975 (Cth) s 70NAC

APPLICANT: Mr Ehlers

RESPONDENT: Ms Geering

FILE NUMBER: ADC 968 of 2007

DATE DELIVERED: 12 October 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 12 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Furtado

SOLICITOR FOR THE APPLICANT: Phillips Green & Associates

COUNSEL FOR THE RESPONDENT: Mr Dillon

SOLICITOR FOR THE RESPONDENT: Carol Williams Lawyers

Orders

UPON THE COURT FINDING THAT the wife has contravened paragraph 10 of the Order of 6 October 2011 without reasonable excuse

1. Judgment is reserved in relation to the question of penalty to be applied.

2. Count 2 of the Contravention Application filed on 7 November 2014 is dismissed in relation to paragraph 12 of the Orders of 6 October 2011.

BY CONSENT IT IS FURTHER ORDERED THAT

1. In addition to the Orders of 6 October 2011 the following orders will apply in relation to communication between the parties:

   (a)the husband shall only communicate via email on issues concerning the child’s health, education and his trips to Australia and for no other purpose;

   (b)the husband shall send no more than one email per any 2-week period on such issues unless they refer to a medical emergency or update the wife in respect of a change in travel arrangements;

   (c)the wife shall forthwith remove any blocking on the husband’s email addresses.

2. Each party shall bear their own costs in respect of the matter.

3. The Response filed by the husband to the Initiating Application filed by the wife on 13 February 2015 and discontinued on 9 June 2015 is dismissed and removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ehlers & Geering has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 968 of 2007

Mr Ehlers

Applicant

And

Ms Geering

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am dealing now with the contravention application so far as it relates to the allegation made in the contravention application filed on 7 November 2014 in which it is stated that the wife contravened paragraph 12 of the orders of the Court made on 6 October 2011. 

2. The specific detail in the contravention application refers to 13 October 2014, at 7.31 pm, in Adelaide.  The wife is alleged to have contravened the orders on that date, time and place.  The allegations are in the particulars of the statement of the alleged contravention that:

   On 13 October 2014 the wife sent me an email informing me that she was closing her email account which is the main means in which communication about the child takes place.  I say that the orders specifying that the mother is to discuss via email and keep me informed about the child’s health and any health issues as well as any serious medical treatment.  As the mother has closed her account and has indicated she will not be reopening the account or creating a new account this communication can now not occur.

3. Paragraph 12 of the order which is the part which is alleged the wife has contravened states:

   The mother shall discuss via email with the husband and keep him informed of [B’s] health and any health issues as well as any serious medical treatment he is to undergo prior to that treatment being undertaken (except in the case of an emergency in which case the mother shall inform the father as soon as possible after such emergency has arisen and provide the father with details of what issue gave rise to the emergency and what treatment [B] has received or is receiving arising from such emergency).

4. That is the end of the order to which the contravention relates before me today. 

5. The law that has to be considered is set out in the Family Law Act 1975 (Cth) (“the Act”) and in particular section 70NAC has the definition of the meaning of “contravened an order”. It says:

   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;  or

   (b)otherwise - he or she has:

   (i)intentionally prevented compliance with the order by a person who is bound by it;  or

   (ii)aided or abetted a contravention of the order by a person who is bound by it.

6. These are orders which affect the child and I therefore take into account the provisions of section 70NAC (a) in this regard as the wife is a person who is bound by the order.

7. First of all it is necessary to decide whether, on the balance of probabilities, the husband has established that the wife has intentionally failed to comply with the order or made no reasonable attempt to comply with the order. 

8. In relation to “intentionally failing to comply with the order” I have heard the evidence of the wife which in some cases, was significantly not reliable but, in any event, as far as it relates to her intention to fail to comply with the order in relation to the child’s health her evidence was that she understood.  The basis of her evidence appears to be that she thought it was only major health issues which were required to be reported to the husband and that there were no such major issues during the period. 

9. The other significant factor to determine whether the contravention is proven is the actual contravention itself.  As raised by counsel for the wife the allegation is that “on 13 October 2014, at 7.31 pm, in Adelaide, the wife breached the order of the Court which required her to discuss via email with the husband and keep him informed of the child’s health”.  There is no evidence before me that on 13 October 2014 at 7.31 pm she did so. 

10. The evidence before me is that she blocked the husband from sending her emails on that day.  That would clearly imply that she did not send him emails from that time but that does not necessarily indicate that on 13 October 2014 she should have sent him an email about anything concerning the child’s health. 

11. The poor drafting of the contravention application refers to the breach of the order on that date and time simply alleging that the blocking of the email account or the closure of the email account.  I accept the submissions of counsel for the wife that this closure of that account does not, in itself, prove that if the wife had become aware of any significant health issue she could not have sent it via email from someone else’s account to the husband to keep him informed. 

12. The difficulty is that in a contravention application, because of the serious nature of those applications, I have to be satisfied that the particular contravention, as set out in the contravention application, is in fact a breach of the order.  While I accept that there is an implication that the wife had no intention of using that email service to communicate with the husband because she had blocked his receipt on that date, namely 13 October 2014 and that would imply that she was not intending to send him emails from that account that does not establish that she has breached paragraph 12 of the order. 

13. The other difficulty is the need for the Court to be satisfied, on the balance of probabilities that the wife intentionally failed to comply with the order. Due to the evidence that I have heard from the wife and her interpretation of the order I am not satisfied that her intention has been established as required by section 70NAC. I therefore dismiss that part of the contravention application.

14. In relation to the next contravention it relates to the order that provides:

    The husband shall provide 14 days written notice via appropriate email to the wife of his intention to be in Australia and the times that he will be available to spend with [B] during that time.

15. The wife admits the contravention of that order. Originally her evidence was on the basis that she had closed the email account. It later became on the basis that she had blocked the husband from her email account. That clearly is an admission pursuant to s 70NAC that she has contravened the order affecting children as she has aided or abetted a contravention of the order by a person who is bound by it or intentionally prevented compliance with the order by a person who is bound by it.

16. The order obviously binds the husband by requiring him to provide 14 days written notice via appropriate email to the wife.  His ability to comply with that order was, on the face of the admission by the wife, contravened by her closing the email account or, as her evidence transpired, blocking the husband from the email account. 

17. The evidence of the wife, originally, in her affidavit was that she closed her email account:  “I closed my email address.”

18. However, her oral evidence was that she had blocked the husband from her email address. 

19. It then became clear that the husband was apparently able to use another email address and that those emails were then received by the wife and again the wife blocked receipt of emails from that address from the husband. 

20. It also appears that notwithstanding the attempts the wife made in relation to at least three different addresses, according to her evidence she has continued to receive communication from the husband by way of emails. 

21. The contraventions, having been admitted, the wife relied upon reasonable excuse.  Her reasonable excuse relates to her reaction which she claims to have been significant to the emails sent by the husband to the wife which are annexed to her affidavit filed on 13 February 2015.  The emails were each put to the husband and he admitted that they were emails which came from him. 

22. The emails include emails from January 2015 which is a considerable period after the contravention which the wife admits of 13 October 2014.  I therefore take into account the material contained in the emails received prior to the contravention admitted by the wife when assessing her evidence concerning the alleged reasonable excuse. 

23. The emails range from one on 13 March 2014 and 25 May 2014;  emails on 20 June 2014;  24 July 2014;  3 and 10 September 2014.  There are then a series of emails on 12 October 2014. 

24. I accept that in those emails the husband deals with his concerns relating to the telephone contact he has which was then being supervised by the maternal grandmother.  He expresses in those emails his concern that if his view of the orders is not put in place he would take the wife back to Court.  He uses expressions such as “applying to Court next week”, “getting my lawyer to talk to you next week” and “will be in Court again without notification”. 

25. He refers, at various times, to the matter being taken back to Court and in particular, on the last series of emails on 12 October 2014, says:  “If you do not respond to my emails and do not provide an email to communicate through I will seek contravention.”

26. In those series of emails he refers specifically to contravention. 

27. The wife in her affidavit says that these were affecting her health and her sleep.  The reliability of the wife’s evidence, therefore, is significant.  She only has to establish the reasonable excuse on the balance of probabilities.

28. However, in view of the changes of her evidence in relation to closing her email account, blocking the email account, blocking the husband receiving emails and blocking various other email addresses of the husband I am not satisfied that the wife’s evidence should be considered reliable to the extent that I should accept her opinion as to the harassment or threats which she perceived resulted from the husband’s emails. 

29. I will also take into account that until the series of emails in October 2014 there was a considerable period of time, March through to September, where the exchange of emails took place arising from the husband’s concern.  (I am not making any findings about the husband’s concern or how the orders for communication and spending time with the child were being applied by the wife nor about his concern which appears to arise out of the alleged behaviour of the maternal grandmother taking into account her undertakings to this Court). 

30. I am therefore not satisfied that the wife has established that the emails were either threatening or harassing to the extent that they should be considered a reasonable excuse within the wide and open definition of “reasonable excuse” as it appears in section 70NAE of the Family Law Act. I therefore do not accept that the wife has a reasonable excuse for the contravention which she admits in relation to paragraph 10 and therefore find that she has contravened that order without reasonable excuse.

31. What orders, if any, I should make as a result of that finding and/or the orders that I should make as a result of dismissing the contravention applications can be orders varying the current orders and penalties that might be applied for the contravention. 

32. The matter was stood down after which consent orders were provided.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 12 October 2015.

Associate: 

Date:  15 October 2015