Flinders and Carmine (No 2)

[2009] FamCA 1194

FAMILY COURT OF AUSTRALIA

FLINDERS & CARMINE (NO. 2) [2009] FamCA 1194

FAMILY LAW – CONTRAVENTION – application of the father alleging contravention – where the mother failed to make the child available to spend time with the father – where agreement has been reached between the parties with respect to the father’s time with the child – application not pursued by the father

APPLICANT: Mr Flinders

RESPONDENT: Ms Carmine

FILE NUMBER: ADC 537 of 2009

DATE DELIVERED: 16 June 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 16 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Lindsay

SOLICITOR FOR THE APPLICANT: Christopher Ganzis & Co

COUNSEL FOR THE RESPONDENT Mr Reynolds

SOLICITOR FOR THE RESPONDENT SRG Lawyers

Orders

1. That the child … born … September 2003 spend time with the father as follows:

   a.   for two sessions at the Y Children’s Contact Service on 28 June 2009 and 12 July 2009 between such times on those days and upon such conditions as may be nominated by the supervisor of the said service; and

   b.   on 2 August 2009 from 10:00am to 4:00pm.

2. That thereafter the order of 13 August 2008 apply commencing on 2 August 2009 with paragraph 3(b) of that order.

3. That on or before 26 July 2009 the supervisor of the Y Children’s Contact Service provide a written report to the parties as to the supervised sessions on 7 June 2009, 28 June 2009 and 12 July 2009.

4. That the Amended Application alleging contravention filed by the father on 13 March 2009 be dismissed and removed from the active pending cases list.

5. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 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 the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2864 of 2003

MR FLINDERS

Applicant

And

MS CARMINE

Respondent

EX TEMPORE REASONS

1. This matter was listed before me today on the amended application alleging contravention, filed by the father on 13 March 2009.  I will not dwell on the unfortunate history of this case, but I will say this: I made final orders on 13 August 2008 in the absence of the mother, because I had determined to proceed on an undefended basis, given the mother had not appeared on the application, had not filed documents, and had not complied with orders of this court. 

2. The other comment I will make is that the mother had not only failed to comply with orders for the filing of documents, but had failed to comply with orders that she make the child, the subject of the proceedings, available to spend time with the father, and the father had been obliged to take out contravention proceedings on 20 December 2007.  In the end, though, I determined to dismiss that application, but only because I was able to proceed to hear the father’s final orders application, which I did on 13 August 2008. 

3. The orders made on 15 August 2008 were served upon the mother, but she failed to comply with those orders, and that necessitated the father taking out a further application alleging contravention, which he did on 13 February 2009, and then he filed an amended application on 13 March 2009.

4. That application ultimately came before me on 25 May 2009, when the mother failed to appear, despite having been served with the documents.  The father made an oral application for the issue of a warrant to arrest the mother to bring her to court to answer the application.  That indeed was an application that the father had made in 2008 as well, but as a result of me being able to proceed to hear the final orders application, and make final orders, the father did not pursue that application.

5. On 25 May 2009 I determined to give the mother one last chance to comply with orders of this court, and I ordered that she deliver up the child to the father at the Y Children’s Contact Service on 7 June 2009, for the purpose of the child spending time with the father, pursuant to paragraph 3(b) of the order made on 13 August 2008, and I adjourned the amended application alleging contravention to today.  I requested that, when the mother was served with that order, she be advised that if she failed to comply with that order, and if she failed to attend on the adjourned hearing date, in all likelihood I would have no choice but to issue a warrant of arrest.

6. Today, the mother has appeared with counsel, and I am thankful for that.  I am told that the mother complied with the order requiring her to deliver the child to the father at the Y Children’s Contact Service on 7 June 2009.  I am also told that that did not prove to be a successful occasion, in that the child, allegedly, did not want to spend time with the father.  That information comes from an affidavit which has been tendered to me by the father’s counsel today, but I am pleased to say that agreement has now been reached as to how this matter should progress, and in simple terms, the mother, through her counsel, has indicated that she will comply with orders of this court, and in particular, the order of 13 August 2008.

7. What has been agreed between the parties is that, instead of moving straight to paragraph 3(b) of that order, that there be two sessions at the Y Children’s Contact Service, one on 28 June and one on 12 July 2009, and then there be a report from that service, and then paragraph 3(b) of the order of 13 August 2008 apply with the child spending time with the father from 10:00am to 4:00pm on Sunday 2 August 2009, and that will continue thereafter on each alternate weekend for a period of six weeks. And then, of course, the subsequent paragraphs of the order of 13 August 2008 will automatically follow.

8. Initially, the father sought that the amended application alleging contravention be adjourned for a period of eight weeks to, in effect, see how this agreed arrangement, although under the umbrella of the order of 13 August 2008, all went.  However, the father has not pursued that application, given that there is now agreement about the future.  Through his counsel, the father indicates that he is prepared to have that application dismissed and to look forward, and on the assumption that the mother does comply with the order of 13 August 2008, as clarified by the further order that I will make today, then that is his preferred course.  I  would certainly agree with that in the interests of the child.

9. Of course, the mother needs to understand that if she does not comply with the orders, then the father will bring another application alleging contravention and the mother will be dealt with if she has breached the orders. 

10. What does concern me, though, is that the mother has not proffered one word of explanation to this court as to why, over a lengthy period of time, she has failed to comply with orders of this court, failed to attend hearings of this court, put the Australian taxpayer to an enormous cost in setting up court hearings, and the like and put the Legal Services Commission of this State to enormous cost in funding the appropriate applications by the father, all of which also has to be met by the Australian taxpayer.  That does not fill me with any confidence that what the mother says through her counsel today will, in fact, come to pass.  However, I hope it does. 

11. I am pausing because I am considering whether I will make an order for the mother to file an affidavit explaining her position, but I do not want to prolong this matter or have an adjourned hearing if one is unnecessary.  What I have said is obviously on the transcript and will be recorded as part of my reasons for judgment today. The mother should be warned though that if this circumstance develops again, I will have no hesitation whatsoever in issuing a warrant for her arrest to bring her to this court.

12. Finally I note that the concession made by the father that the amended application alleging contravention filed on 13 March 2009 can be dismissed is not made on the basis of any acceptance that the mother has not breached the orders as alleged, in that amended application, but with a view to allowing this matter to progress on the basis of the intimation by the mother, through her counsel, that she will now comply with orders of this court providing for the child to spend time with the father.

I certify that the preceding 12 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 16 June 2009.

Associate