Everard and Holland

[2007] FamCA 142

FAMILY COURT OF AUSTRALIA

EVERARD & HOLLAND [2007] FamCA 142

FAMILY LAW - CONTRAVENTION of Court order – Parenting program

Family Law Act 1975 (Cth)- S.70N;   S.117

APPLICANT: Ms Everard

RESPONDENT: Mr Holland

FILE NUMBER: ADF 6032 of 1996

DATE DELIVERED: 27 February 2007

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hurley

SOLICITOR FOR THE APPLICANT: Mason Westover Homburg

COUNSEL FOR THE RESPONDENT: Mr Tredrea

SOLICITOR FOR THE RESPONDENT: N/A - Self Represented

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as EVERARD & HOLLAND

Orders

Upon noting the undertaking of the father in relation to his indication that he will telephone the Children's Contact Service at S on 2 March 2007 and 9 March 2007 to ascertain the arrangements for commencement of contact in relation to the contravention of the order of 3 June 2005 referred to in paragraphs 14 through to 21 of the Application for Contravention (document 148)

And upon further noting the father’s admission of contravention without reasonable excuse of the order of 3 June 2005 referred to in paragraphs 14 to 21 of the Application for Contravention filed on 30 January 2007

IT IS ORDERED THAT

1. The father attend before the parenting orders program Kids are First run by Anglicare so that the program can make an initial assessment of his suitability to attend a parenting orders program and, if assessed as suitable, to attend the programs nominated by Anglicare. 

2. For that purpose, the father is to contact the Kids are First parenting orders program at H within seven [7] days of today. 

3. If the father is assessed as unsuitable or fails to attend the nominated program, the father is to attend on a date to be advised for further orders to be made.

4. The Registry do provide a copy of this order to the program provider.

5. The father is to file a written undertaking in the terms discussed, such undertaking to be filed and served by 4.30 pm today.

6. Otherwise the Contravention Application is dismissed.

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 6032  of 1996

Mrs Everard

Applicant

And

Mr Holland

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter that was brought before the Court on application of the mother,  in relation to allegations of contraventions of Family Court orders by the father.  The contraventions alleged all concern orders which were made in proceedings relating to parenting orders for the child C, who was born in January 1999.

2. Proceedings between the parties have been on foot for a considerable period of time and recently there have been various orders made.  The contraventions in the form 18 filed on 30 January 2007 relate to orders made when the expressions "contact" and "residence" were being used.

3. The first of the orders referred to in the contravention application is the order of 3 June 2005.  The next is the order of 20 September 2006, then 6 December 2006 and 21 December 2006.  In all, there are approximately 14 counts in the contravention application, which came on for final determination by me.

4. Both parties are represented by counsel.  I have heard evidence by the mother and her witnesses.  At the conclusion of the mother's case, counsel for the father made submissions that I should deal with the matters and strike out some of the counts on the basis that a prima facie case had not been established or that the counts were otherwise defective.

5. I heard some submissions about that and, before making any ruling, counsel commenced negotiations.  I have now been informed that an agreement has been reached in that the father has agreed (on the basis that the other counts be withdrawn) that counts of the contravention numbered 5, 6 and 7, which relate to breaches of the Court order of 3 June 2005 on seven separate occasions ranging in date from 18 September 2005 through to 22 January 2006, are conceded as having been contravened by him without reasonable excuse.  This is on the basis that the other contravention allegations are withdrawn and that there is no submission on behalf of the mother that the contraventions constituted a serious disregard of the Court orders.

6. It is also apparent from the file that the contraventions are not contraventions which have occurred after a previous occasion when the Court had dealt with contraventions of that order. I accept the submissions of counsel that the matter therefore is to be dealt with by me, if I so agree, under the provisions of section 70NG of the Family Law Act, as it then was, it being in relation to contraventions which occurred prior to the amendments to the Act which came into effect on 1 July 2006 and thus the provisions of Part IX of the Schedule of the Amending Act apply so that the Amending Act provisions do not apply to these contraventions now being dealt with by me.

7. The contraventions all relate to the order of 3 June 2005, which provided that the father give and the mother have contact with the child from 10 am to 6 pm, to commence on Sunday, 26 June, and during the same period each third Sunday thereafter.  That contact order also provided that contact be supervised by the maternal grandmother and restrained the mother from bringing the child into contact with Mr O.

8. The background to this matter is such that those orders are significant, there having been an allegation that the mother's former partner Mr O had sexually abused the child.  The mother’s former partner was charged and more recently convicted of offences in that regard, and that matter is no longer in dispute. 

9. The capacity I have to make orders in relation to the contravention are, of course, not bound by any agreement the parties might reach in relation to whether the Court should consider the contravention show serious disregard. I take into account, however, the background to this matter and the circumstances in which the order was not obeyed. I am satisfied that it would not be appropriate in this particular instance to make the finding that the father has behaved in a way that showed a serious disregard for his obligations under the primary order, being the order of June 2005. I therefore consider the orders that I might make under section 70NG.

10. It has been put to me by the mother's counsel that I should consider making the orders for the father to attend a parenting program.  Such an order is opposed by the father.  It appears to me that it is important that, even though there has not been a serious disregard for the father's obligations under the primary order, it is important for him to understand the need to comply with Court orders.  It is also important for him to understand that the orders were made after taking into account the best interests of the child.

11. The obligations of the Court are to ensure that there is a significant order made when a finding has been made that an order has been contravened.  In this matter, although it was some time ago, the father admits to contravening the orders by failing to comply with the order for contact on seven different occasions without reasonable excuse.

12. Therefore, the minimum order that should be made on this occasion is to direct him to attend an appropriate parenting program in accordance with the provisions of section 70NG of the Act, as it then was.

13. I have been given information concerning the program currently run by Anglicare, which is described as, "KidsAreFirst, Parenting Orders Program."  I consider such a program to be suitable in this case.  The program will assist him in understanding that the orders of the Court made after taking into account the best interests of the child, should be obeyed.  The interaction between the father and the mother and other persons concerned are matters which should not be the primary consideration but the welfare and best interests of the child should be the primary consideration.

14. The mother has also indicated that due to her own personal circumstances (in particular, the cost and other arrangements) she is not seeking make‑up contact.  Ms Hurley for the mother has also asked that there be an order varying the order that I made in February 2007 to ensure that there are no further problems in relation to enforcing the recent orders for contact.

15. I agree with Mr Tredrea that I cannot make that variation under the provisions of section 70NG, which refers to "make any other order varying the order so contravened", because the order contravened has long since been discharged and it is the new order that I made in February this year that would be the one to be varied.

16. In my view, however, the terms of the order that I made on 5 February 2007 permit the variations which would fit in with the Children's Contact Service in S.  More importantly, the father has given his undertaking to the Court, which I will require him to complete by filling in a formal undertaking, that he is prepared to telephone the Children's Contact Service this Friday, 2 March and the following Friday, 9 March to ascertain the specific arrangements for the commencement of the orders and the times during which the child is to spend time with the mother.

17. The mother also applies for costs in relation to the proceedings, which is opposed by the father.  The application brought before the Court had approximately 14 counts.  As indicated, three of those counts, representing seven different occasions, have been the subject of admissions by the father.  The rest are to be withdrawn.

18. During the hearing, issues were raised concerning difficulties with some of the counts alleged, but I have made no findings about the contraventions which are now to be withdrawn.

19. Consideration must be given to making an order for costs in contravention proceedings, as well as the other proceedings.

20. Taking into account all of the relevant sections both before and after the amendments as applicable, however, the most significant factor is that neither the mother nor the father have been wholly unsuccessful in these proceedings.  The mother has been successful in the concession of the father in relation to seven occasions, but unsuccessful in the others.  The father has been successful in the withdrawal of some of the counts but unsuccessful in some.

21. I take into account the provisions of both section 117 and the sections of the Act relating specifically to costs in contravention proceedings but do not consider that it is appropriate in this matter to make any order for costs.

I certify that the preceding twenty one paragraphs [21] are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  6 March 2007