Flinders & Carmine

[2009] FamCA 563

FAMILY COURT OF AUSTRALIA

FLINDERS & CARMINE [2009] FamCA 563

FAMILY LAW – CHILDREN – mother served with final orders after previous undefended hearing – mother failed to attend scheduled children’s contact service sessions – contravention application filed by father – no attendance by the mother – application by father to have warrant for arrest of mother issued not pursued – father seeking order that mother deliver up the child to the father – contravention application kept alive and if mother does not attend adjourned date father can renew application for the warrant of arrest – appropriate to move to unsupervised sessions between the child and the father

Family Law Act 1975 (Cth)

APPLICANT: Mr Flinders

RESPONDENT: Ms Carmine

FILE NUMBER: ADC 537 of 2009

DATE DELIVERED: 25 May 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 25 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Lindsay

SOLICITOR FOR THE APPLICANT: Christopher Ganzis & Co

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That any reference to the mother’s address be removed from the transcript of this hearing.

2. That the mother deliver up the child … born … September 2003 to the father at the Y Children’s Contact Service at 10:00am on Sunday 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.

3. That the Amended Application Alleging Contravention filed by the father on 13 March 2009 be adjourned for hearing to 2:15pm on 16 June 2009.

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: ADC 537 of 2009

MR FLINDERS

Applicant

And

MS CARMINE

Respondent

EX TEMPORE REASONS

1. Before me today is the Amended Application Alleging Contravention filed on 13 March 2009.  That is an application filed by the father.  That amended application was served and there is an affidavit of service to that effect filed on 16 March 2009.  Just looking at the affidavit of service, I  note that not only was the amended application filed but the application which was originally filed on 13 February 2009 was also served at the same time, together with, and importantly, the affidavit that the father has filed in support of the application.

2. The mother has not attended today.  She has not filed any documents.  When the matter was called on today the father, through his counsel, made an application for a warrant of arrest to be issued.

3. I just need to deal briefly with some of the history of this matter, to put that into context.  This matter was before me in July and August last year, initially on another application filed by the father alleging contravention of previous orders of this court.  The mother failed to attend the hearing of that application and at that time the father, through his then counsel, made an oral application for the issue of a warrant of arrest.

4. I will not repeat all that I said in relation to that application but I refer generally to my reasons for judgment delivered on 23 July 2008 and 13 August 2008.  In the end result what I determined to do rather than issue a warrant of arrest was to bring forward the hearing of the final orders application that was before the court.  On 13 August 2008 I made final orders in the absence of the mother, after the mother again having been given sufficient notice of the hearing and me being satisfied that she was fully aware of the hearing dates and the content of the application before the court. 

5. The final orders that I made provided for the child to live with the mother, for the parties to have equal shared parental responsibility, and importantly, for today's purposes, for the father to spend time with the child initially via six sessions at the Y Children's Contact Service and thereafter on the Sunday of each alternate weekend, with that leading to an increase of time to the point where the child was spending time with the father for the entirety of each alternate weekend.  The order also provided for all handovers to take place at the Y Children's Contact Service.

6. At that time I also made a location order because the precise whereabouts of the mother were unknown to the father.  That location order has produced an address at which the orders that I made on 13 August 2008 were able to be served on the mother.  That is all set out in the affidavit that the father has filed in support of the application that is before me today.

7. Six sessions of supervised time at the Y Children's Contact Service were set up and the mother was advised of the dates and times of those sessions.  The first session was to take place on 5 October 2008 and the last session on 14 December 2008.  In the end result two of those sessions actually occurred, namely on 3 November 2008 and 16 November 2008.

8. With the other four sessions on 5 October 2008 the mother alleged that the child was sick and would not be attending.  A medical certificate was ultimately supplied which unfortunately and typical of medical certificates did not indicate very much as to what the illness was.  Anyway, that was what happened on the first occasion.  On the second scheduled occasion, which was 19 October 2008, the mother alleged that she was confused about the precise date; she actually attended on the Saturday rather than the Sunday when it was actually scheduled for. 

9. Then the next occasion, which was 3 November 2008, was when the child did spend time with the father.  The fourth occasion was 16 November 2008, when again the child did spend time with the father.  On the fifth occasion, which was on 30 November 2008, the mother advised that she had had car trouble and she had not been able to find adequate transport and she would not be attending.

10. With the final session on 14 December 2008, the mother again advised that she would not be attending and the session was cancelled.  The mother sent a facsimile on 14 December 2008 to the father's solicitors, which advised that she was unable to afford the cost of fuel to transport the child.  I note of course that that was on the very day that the supervised occasion was to occur, but in any event it was cancelled for that reason.

11. The children's contact service rescheduled the four missed sessions, to recommence on a weekly basis from and including 25 January 2009, and the mother was advised of those dates.  However, the mother failed to attend on 25 January 2009 and 1 February 2009.  There was a telephone call advising that the child was sick. 

12. The next occasion was to be on 8 February 2009.  The mother telephoned the service and advised that she would not be attending but there was no reason provided.  Although there was one further session arranged, that was cancelled because, as the father says in his affidavit, he was advised by the service that the service was at capacity.

13. There have been no further sessions arranged and, as is obvious from the sequence that I have just referred to it was immediately thereafter that the father filed his Application alleging contravention, namely on 13 February 2009, and then his amended Application was filed on 13 March 2009.

14. The only further evidence that I have before me is that on 2 April 2009 an affidavit was filed annexing a report from the children's contact service as to each of the arranged sessions.

15. In summary, I take two things from that affidavit.  One is that on the two occasions when the child did spend time with the father, the report of the children's contact service is positive.  That is consistent with what I referred to in my reasons for judgment delivered on 13 August 2008.  I remind everyone that the reason for setting up the supervised occasions was for one reason and one reason only, namely, that the father needed to re-establish his relationship with the child because of the length of time that had passed since the child had spent any time with him. 

16. As I say, and to repeat, it is apparent from the report of the children's contact service that the interaction was positive.  Frankly, I am also satisfied that those two sessions have achieved the object and have gone a significant way to re-establishing the relationship between the child and the father.  Thus I do not see a need for there to be further supervised sessions and that, all things being equal, it would be appropriate to move to the next stage of the regime that I set up in my order of 13 August 2008, namely, that the child spend each alternate Sunday with the father, from 10:00am to 4:00pm, for a period of six weeks.  Indeed that is important for what I have decided to do in this case.

17. That is a brief history of this matter and I set that out to put the current application what I now propose to do with this matter into context. 

18. Although the application before me today was for the issue of a warrant of arrest and although that is open to me, I queried with counsel what that would achieve in the final analysis, given that the father's position is quite simply that - and this was also his position on 13 August 2008 - he wants to spend time with the child on an ongoing basis, and that is not happening. 

19. I stress though that I am not in a position to make any finding as to the merits of the Application alleging contravention because that is still before the court and that still needs to be dealt with.

20. In terms of how this case now proceeds, obviously if I issued a warrant of arrest the mother would be arrested, she would be brought to this court but only for the purpose of hearing the Application alleging contravention.  The mother would be able to put her position in that regard, and of course I cannot predict what the result of that might be.  It might be that I find that there is a contravention or I might find that there was a reasonable excuse. 

21. My point in referring to that is of course that that does not necessarily achieve the result that the father wishes to achieve, which is to spend time with the child.  On the other hand, it seems to me it is certainly time to bring home to the mother that she just has to comply with orders of this court.  I do not want to say too much more about that because, as I say, I am not in a position to make any findings as to the allegations of contravention of the order.

22. I add that there is no evidence before me to tell me what would happen in a physical sense if the mother was arrested.  In other words, I do not know how the child would be cared for, given that the mother and the child live in country South Australia to the north of Adelaide and it is not as though they are in the next suburb.  A warrant would be executed.  The mother would have to be brought to Adelaide and that might take some time.  It may not be able to be done in the same day, and it might take a day or two to achieve.  In the meantime, of course, I would be concerned as to who was caring for the child. 

23. They are the practical issues that I have raised with the father's counsel.  Not unexpectedly, the father's counsel has not been able to help me with those issues, but I necessarily raised those issues as concerns that I had in making the order that the father sought, namely, the issue of a warrant.

24. One other option that I have canvassed with the father's counsel is the issue of a recovery order.  Indeed that was an option that I canvassed on 13 August 2008, or indeed on both 13 August 2008 and 23 July 2008, as being a possible way forward.  However, the father does not make an application for a recovery order.

25. As a result of discussions between bench and bar the father has instructed his counsel to not pursue, for the moment anyway, the application for the issue of a warrant of arrest but to instead seek an order that the mother deliver up the child to the father at the children's contact service at 10:00am on 7 June 2009, and in effect to allow paragraph 3(b) of the order of 13 August 2008 to be put in place.

26. As I said before, on the evidence that is before me I do not consider that there is any need for any further supervised sessions at the Y Children's Contact Service and it is appropriate to move to the next stage of this matter, which is the child spending time with the father on each alternate Sunday, from 10:00am to 4:00pm.

27. That is now the application that the father pursues, rather than the issue of a warrant of arrest.  I consider that the father in doing that has, as always in this case, taken an appropriate attitude in trying to progress this matter and bearing in mind the best interests of the child that has been the subject of these proceedings.

28. It is difficult to know what the correct approach might be.  I must say that just before the father's counsel indicated that he was no longer seeking, today at least, the issue of a warrant I was about to issue a warrant.  I now take a step back from that and I will make the order that the father seeks.  Equally, I propose, and the father seeks this, to keep alive the Application alleging contravention and also to keep alive, obviously, the options, for example, of a warrant of arrest to issue or a recovery order to issue.

29. I propose to make the order for delivery up and then adjourn the hearing of the Application alleging contravention to a date that I will fix in a moment.  If the mother does not attend on that adjourned hearing date, and that is regardless of what happens on 7 June 2009, then the father can renew his application for the issue of a warrant of arrest.

I certify that the preceding 29 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 25 May 2009.

Associate