Emerwill and Montague

[2009] FamCA 34

FAMILY COURT OF AUSTRALIA

EMERWILL & MONTAGUE [2009] FamCA 34

FAMILY LAW – CONTRAVENTION – Without Reasonable Excuse

Family Law Act 1975 (Cth)

APPLICANT: Mr Emerwill

RESPONDENT: Ms Montague

FILE NUMBER: MLC 1242 of 2007

DATE DELIVERED: 7 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. The mother make the child, O, available for collection by the father at McDonald's, C, at 11 am on 8 January 2009 for a period of 14 days, with the father returning the child to the mother at McDonald's at C at 11 am on 22 January 2009.

2. The cycle referred to in paragraph 4 of the orders of 28 December 2006 resume on the first Friday after school resumes in 2009.

3. I make a declaration that this is a finding under section 70NAE that the contraventions were less serious but without reasonable excuse.

4. The application for contravention filed on 19 December 2008 be otherwise dismissed.

5. The hearing on 12 January 2009 is vacated.

6. All proceedings be transferred to the Federal Magistrates Court Dandenong to be heard as quickly as possible.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 1242 of 2007

MR EMERWILL

Applicant

And

MS MONTAGUE

Respondent

REASONS FOR JUDGMENT

1. This is an application in the judicial duty list brought by Mr Emerwill, who I shall refer to as "the father", for contravention against Ms Montague, who I will refer to as "the mother", for breach of orders that were made on 28 December 2006.  The application for contravention was filed on 19 December 2008. Both parties have appeared before me today without legal representation.

2. Although there are two children of this relationship, this dispute is about O who was born in January 2000 and therefore soon will be nine years of age.  The mother has legal representatives acting for her normally but they provided a letter to the court, and possibly not to the father, dated 23 December 2008, indicating that the mother did not have legal aid funding for representation on the contravention application.

3. However, it is clear from what I have heard and from reading that letter that they have given her advice and contrary to a recommendation to which I will refer in a moment, she decided to proceed with the application of the father today and relied upon an affidavit filed on 15 December 2008 in parenting proceedings which are listed in the judicial duty list on 12 January 2009.

4. The letter to which I have referred dated 23 December 2008 reads:

   As a courtesy to the court, however, we advise that our client's application in a case is directly linked to the contravention application and the issues in dispute.  It may be easier for the court to deal with a contravention application on 12 January 2008 when our client will be represented by counsel.  We otherwise advise that our client will seek to rely on her material filed for the application in a case for the purposes of the contravention application.

5. The allegation in the contravention application reads:

   On 21 November 2008 at 1700 at McDonald's […], the respondent, without reasonable cause, withheld the child [O] on three occasions, not answering the phone, stated "no kids for Christmas". 

6. That was particularly unhelpful.  However, because of the fact that the mother conceded that the child had not seen her father since November and she had had legal advice and particularly the paragraph of the letter to which I have just referred, I teased out the allegations as follows:  there are three specific breaches alleged of the orders of 28 December 2006.  Those three relate to paragraph 4(a).  They concern the weekend of 21 November, 5 December and 12 December.  There are also breaches alleged of paragraph 4(f) of those orders, relating to half of the long summer holidays and paragraph 5(c) of the orders relating to the specific Christmas Day 2008 period.

7. I have explained the process under which the court works to the mother and notwithstanding her lawyer’s suggestion that the matters be incorporated with the hearing on 12 January 2009, she said she wanted to proceed.  She admitted that O did not go and has not gone with her father since early November and says that she has a reasonable excuse for contravening the orders.

8. Importantly, she conceded that to move things along, she was prepared to work on the basis that the dates alleged by the father were in fact dates that he was entitled to spend time with the child under the orders.  I say that having regard to the fact that the orders do not specifically set out dates but rather a number of weekends in an eight-week cycle.  That issue is no longer in dispute.

9. It goes without saying that the onus of proof in a contravention application is on the father and the standard of that proof is the balance of probabilities.  In his handwritten affidavit, the father said that he did not get to see O on any of the dates relating to the admitted breaches.  He did say, however, that he had had a telephone discussion with the mother.

10. The significant concern of the father was that one of the weekends related to O’s grandmother's 70th birthday and he specifically was not working for that weekend and the child obviously missed out on seeing her grandmother during that weekend.  He also set out in his affidavit, and this was unchallenged, that he had turned up at the appropriate times and the child was not made available.

11. The mother cross‑examined the father about whether he had received letters from her lawyer.  She specifically used the word "letters" and he acknowledged having received only one. When asked when he received that letter, he said it was some time in November.  The letter which is annexed to the mother's affidavit for the proceedings on 12 January curiously enclosed a document headed Undertaking to Court.  The father said that he did not receive that document.  When I asked him from the bar table whether he was prepared to sign it, he said that he would and did not see it as anything more than a normal parenting issue.

12. The mother in cross‑examination of the father put to him that he had left O unattended.  He said that that had in fact occurred once.  It was put to him that it was more than once and he denied that.  He was asked why he had not contacted the mother if in fact he had to go to work and he said that there was only a half an hour overlap and the mother was 40 minutes away.  He said that he in fact contacted the next-door neighbours and asked them to keep an eye on the child during the period of time.

13. What all of that issue shows is that the dispute was about the fact that the father was called in to work and that on his evidence, which is realistically unchallenged, he was away for 30 minutes.  Whether that is appropriate or not is not to the point.  What that triggered was at least one letter from the mother's solicitor, seeking an undertaking, and as I have indicated, the father says that he did not get it. 

14. Importantly, the father says that he spoke to the mother on the telephone and although the mother could not recall the details precisely of the conversation, it seems clear that he told her that he was not working at least on the weekend involving the birthday party to which I have referred.

15. The mother's case therefore is really about the father leaving the child unattended and secondly, not agreeing to do it again.  When I say "not agreeing to do it again", there is some evidence to which I will refer in a moment that seems to have precipitated not only her application listed on 12 January but also this Undertaking to the Court document. 

16. The mother's evidence, which she asks me to rely upon, was as follows:  she said that O told her that she did not wish to return to the father's home on the scheduled weekend.  She reported that she was scared of returning because she was not sure what would happen and how the father would treat her.  In my view, that would not be a basis to say that the mother had a reasonable excuse.  Obviously it is the responsibility of a parent to convince the child that she will be well cared for.

17. The evidence went on to say that the solicitor for the mother sent an undertaking to the father to sign, restraining any discussion about the proceedings in front of O and the father had not signed it to date.  I am not entirely sure what that document is because the document annexed to the affidavit does not refer to discussions about proceedings but rather refusing to permit anyone other than the father to supervise O during the time that she is with him.  In any event, I accept the father's evidence that he did not get that document.

18. The mother's evidence was that on O being returned on Sunday, 9 November 2008, she told her that she had been left alone with the father's two and half-year-old child on the Saturday night whilst both the mother and father worked.  She asserted that this was the second occasion that this had occurred.  After the first occasion, she said she hoped it would not happen again and that the father would realise that it was inappropriate.  She said the child was very upset when telling her about it.

19. The dilemma I face here is that I have the evidence of the mother relaying what the child told her in circumstances where the relationship between the parents is nothing short of appalling and I have the specific evidence of the father, tested under cross‑examination, where he said that that just did not happen. He said there was a 30-minute overlap and it had only occurred on one occasion, in addition to which he put into place the provision of the neighbours keeping an eye on things.

20. Just exactly what happened is hard to say but in my view, I have no reason to doubt what the father said.  The mother's evidence said that the father's new partner had asked O whether the child would tell the mother that she had been left alone with the two and a half-year-old child.  Again, this came from the circumstances of the discussion between mother and daughter.  Exactly what happened is hard to decipher, but as I have already found that the father's evidence is acceptable in respect of the one occasion, I have to take that as the basis upon which I am working.

21. In paragraph 22 of the mother's affidavit, she then said she asked her solicitor to write to the father about the inappropriateness of the non-supervision, expecting that he would agree that it was inappropriate.  This letter was not specifically put to the father but I again accept what he says, that he did not receive anything other than the one letter.  There was certainly, according to the affidavit, a document headed Undertaking, as I have mentioned, but that is in a letter which is dated 21 November 2008.  The letter of 17 November 2008 specifically refers to the unsupervised period of time.  The letter says:

    We now raise this issue and advise you that [O], at the age of eight, should not be responsible for a two and a half-year-old for any period of time.  If you are working and are not able to be available to care for [O], please notify our office so that we can arrange for [O] to stay in the care of her mother.

22. That does not seem to be a demand for the signing of an undertaking or an agreement that his conduct was inappropriate.  Paragraph 22 of the mother's affidavit therefore does not really assist me.

23. In paragraph 24 of her affidavit, the mother refers to a telephone conversation on 20 November.  She said that the father was unhappy and rude about the correspondence from the solicitor dated 17 November.  That also was not specifically put to the father.  He said, however, that there was a discussion in specific terms in which he told the mother that he would not be working.  The obvious inference was that he would be available to care for O at all times during the weekend.  I am not at all clear on what happened in the telephone conversation on 20 November because when it was put to the mother by the father about the details, she said she could not specifically recall.

24. Finally, the mother's evidence was that she believed the father did not acknowledge O should be supervised and that it was a risk to leave her unsupervised at a young age.  I have to match that evidence, about which he was not questioned, with his own statement from the bar table in which he says that he sees it as a normal parenting responsibility for someone to agree that a child should be properly supervised.

25. In the circumstances, I have no reason to doubt what the father tells me about what gave rise to the dispute. As I have already said, the fact that the mother admits that O did not spend any of the time under the orders with the father overcomes the problem of proving the formal breaches of the paragraphs of the order. The mother raises the provisions of section 70NAE of the Family Law Act relating to a reasonable excuse. Section 70NAE is a complex section with a number of provisions. The relevant one in this case is section 70NAE(5). That says that in relation to an order dealing with whom the child is to spend time, the person is taken to have a reasonable excuse if he or she believed on reasonable grounds that not allowing the child to spend time with, in this case, the father, was necessary to protect the health and safety of the person, including not only the child but herself, and that the period during which the child and the person did not spend time together was not longer than was necessary to protect the health and safety of that child.

26. That obviously gives rise to two questions:  the first is whether or not there was a reasonable belief that not allowing the contact to take place was necessary to protect the health and safety of the child.  I could not find that to be reasonable in this case, having regard to the fact that there was a telephone conversation in which the father asserted that he would be not working and available to care for the child.  The second part of the test is that even if there was a denial of time on the basis of the protection of the health and safety of the child, it is not to be for any longer than was necessary for that protection to continue.  In this case, the mother did not bring the application to which I have referred until 15 December and even then, it only relates to getting the father to sign an undertaking. 

27. In these circumstances, having regard to the obligation on the father to prove things on the balance of probabilities, I accept that this is not a case in which the mother can rely upon the reasonable excuse defence.  Under those circumstances, I find the allegations, and all five of them, proved.

28. I also for the purposes of this judgment note that an application has been made for compensatory time. I will make a formal finding that this is a contravention under subdivision (e) to which the provisions of section 70NAE apply. Whilst it is a contravention without reasonable excuse, it is one which has less serious consequences and I accept it is a less serious breach than what might otherwise be seen.

I certify that the preceding Twenty Eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  15 January 2009