Esmat and Ridgewell

[2012] FamCA 560

FAMILY COURT OF AUSTRALIA

ESMAT & RIDGEWELL [2012] FamCA 560

FAMILY LAW – CHILDREN – where mother not complying with orders made by the Federal Magistrates Court – contravention established

Family Law Act 1975 (Cth)

APPLICANT: Mr Esmat

RESPONDENT: Ms Ridgewell

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: SYC 3874 of 2011

DATE DELIVERED: 16 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 16 July 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms Conte-Mills

SOLICITOR FOR THE RESPONDENT: O'Connell Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Dr C be appointed as a Chapter 15 single expert in this matter and I request that he prepare a report dealing with any matter that he believes is relevant as detailed in s 60CC(2) and (3) Family Law Act but in particular:

   1.1.Issues raised by the mother in her Notice of Child Abuse or Family Violence filed 7 November 2011 and the Notice of Child Abuse or Family Violence filed by her on 13 June 2012;

   1.2.His opinion as to the mental status of both parties;

   1.3.Whether or not either or both the parents and the child would benefit from any type of further therapy.

2. The Independent Children's Lawyer ask Dr C to prepare that report as soon as possible.

3. Dr C is free to speak to the child’s counselor, Mr F. 

4. The father has indicated that he will pay one half of the costs of the fees for the expert report and I note the mother asserts that she is currently in receipt of a grant of Legal Aid and I therefore infer that Legal Aid NSW will pay for the other half of the report. If that turns out not to be so and there is some difficulty in relation to the payment of Dr C’s fees, then the matter may be relisted on seven days notice.  Should this be before 25 October it may be listed before me; if it is after that time it should be listed before the trial judge. 

5. Photocopy access granted to the Independent Children's Lawyer for the purposes of providing to Dr C copies of any subpoena material the Independent Children's Lawyer thinks is appropriate.

6. Leave granted to the mother to issue a subpoena to Company D in relation to the circumstances of the father leaving that firm and in particular in relation to any involvement the father had with any other employee who had any type of pornography in their possession.

7. Leave granted to the mother to issue a subpoena in relation to the father’s Optus telephone records.

8. Leave granted to the father to issue a subpoena in relation to the mother’s Telstra records. 

9. I find the mother contravened the orders made by the Federal Magistrates Court on 7 November 2011 without reasonable excuse on 13 November 2011, 20 November 2011, 27 November 2011 and 4 December 2011.

10. The sentencing hearing be adjourned until after receipt of Dr C’s report.

11. I note the mother wishes to make an oral application that the current orders be stayed. That application can be made in writing by noon on Thursday this week supported by an affidavit and be filed and served upon the Independent Children's Lawyer and the father by electronic means. The father is to file and serve one affidavit in response to the affidavit that the mother has filed by 5pm Monday 23 July.

12. This matter be adjourned to Wednesday 25 July 2012 at 1.30pm by telephone.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Esmat & Ridgewell 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 SYDNEY

FILE NUMBER: SYC 3874 of 2011

Mr Esmat

Applicant

And

Ms Ridgewell

Respondent

EX TEMPRE REASONS FOR JUDGMENT

1. In this matter the father has asked by way of a contravention application that he filed in February 2012 that the mother be dealt with for systemic breaches of orders made by Federal Magistrate Sexton on 7 November 2011. The father has agreed, for the purposes of confinement of this hearing today, to limit the occasions which are to be the subject of charges to breaches on 13 November, 20 November, 27 November and 4 December 2011.

2. The mother made it clear in a letter that she had her solicitors write on 11 November 2011 that she did not intend to comply with the order that had been made by FM Sexton. The Federal Magistrate had made that order after an extensive hearing in which the mother was legally represented and in which the mother’s lawyer had an opportunity to cross examine, amongst others, the proposed supervisors.

3. The mother instructed her lawyers to write on 11 November 2011 to announce to the father that she had no intention of doing what she had been ordered by the court. She gave as her reasons that she was concerned about the fact that there were criminal proceedings on foot and concerned that what the court had ordered would create an opportunity for the father to in some way influence those proceedings. She also said she was concerned, notwithstanding the fact that she had, through her lawyer, an opportunity to test Ms M and her husband that they would not adequately supervise T (“the child”). She says she was of the view they had lied to the Federal Magistrate.

4. The Federal Magistrate, having given the mother’s lawyer an opportunity to test those two witnesses, made an order affirming them as suitable supervisors. The mother simply did not accept what the Federal Magistrate had done and quite deliberately set about not complying with the orders.

5. The mother also says, belatedly and certainly not as part of the letter that she had her lawyers write on 11 November 2011, that the child was apprehensive about going to his father. I do not think there is probably any doubt that the child was apprehensive about going to his father. He has been caught in the middle of a long running saga between his parents and there is probably no doubt that he knows exactly how his mother feels about him going to his father.

6. There is no evidence that would indicate other than had the mother wanted it to happen, she could have ensured that the child, at the age he then was, went with his father. The mother though had made up her mind that that was not going to happen.

7. I am also not satisfied that the mother’s view that the father and/or Ms M and/or her husband might in some way interfere with the current criminal proceedings nor that a police officer expressed concern at the order made by the learned Federal Magistrate, provides any reasonable excuse for the mother not complying with a very specific order that the court had made after a full opportunity for the mother to be heard during the proceedings that led to those orders being made (including an opportunity to be heard about the pending criminal proceedings).

8. On the balance of probabilities, I find the mother does not have any reasonable excuse for blatantly making a decision not to comply with the orders on 13 November, 20 November, 27 November or 4 December 2011.  Accordingly I find the contravention established.   

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 16 July 2012

Associate: 

Date:  20 July 2012