Frape-Lindstrom and Frape-Lindstrom

[2007] FamCA 571

FAMILY COURT OF AUSTRALIA

FRAPE-LINDSTROM & FRAPE-LINDSTROM [2007] FamCA 571

FAMILY LAW – ORDERS - CONTRAVENTION – Wife’s application for contravention of consent child welfare orders (seven counts) – Husband failed to appear – Five counts found proven and adjourned for sentencing

Family Law Act 1975 (as amended);
Family Law Amendment (Shared Parental Responsibility) Act 2006;
Evidence Act 1995 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANT: Mrs Frape-Lindstrom

RESPONDENT: Mr Frape Lindstrom

FILE NUMBER: MLF 3515 of 2004

DATE DELIVERED: 23 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 23 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hebblewhite

SOLICITOR FOR THE APPLICANT: Mackinnon Jacobs Horton & Irving Pty

COUNSEL FOR THE RESPONDENT: No appearance

Orders

1. That the wife’s Form 18 Application – Contravention filed on 30 March 2007 insofar as it applies to Counts 1, 4, 5, 6, and 7 be adjourned for the purpose of considering penalty at 9.30 am on Friday 10 August 2007.

2. That Counts 2 and 3 of the wife’s said Form 18 Application – Contravention be otherwise dismissed.

3. That until further order, paragraph 11 of the Orders made by Registrar Kaur on 5 May 2006 and paragraphs 2 and 3 of the Orders made by Young J on 18 April 2007 be varied so as to provide that:

   3.1during the school term the husband’s time spent with the elder son born on … February 1999 and younger son born on … October 2000 (“the said children”) commence with him collecting the said children from school on each alternate Friday and returning them to their school for the commencement of class the following Monday, or Tuesday in the event that the Monday is a public holiday; and

   3.2all other changeovers for the purpose of the said orders take place at the L Police Station.

4. That the wife’s costs of and incidental to the said application be assessed by a Registrar and when assessed, be paid by the husband.

5. That the ex tempore Judgment delivered this day be transcribed, placed on the court file and made available to the parties.

(6) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3515  of 2004

Mrs Frape-Lindstrom

Applicant

And

Mr Frape-Lindstrom

Respondent

REASONS FOR JUDGMENT

1. I have before me a Form 18 Application - Contravention filed by the wife on 30 March 2007.  The application alleges that the husband contravened orders that were made by Registrar Kaur on 5 May 2006.  The contraventions are alleged to have taken place on 10 June 2006 (Count 1), 23 September 2006 (Count 2), 7 November 2006 (Count 3), 14 November 2006 (Count 4), 6 February 2007 (Count 5), 6 March 2007 (Count 6) and 20 March 2007 (Count 7).

2. Consent orders were made by Registrar Kaur, as I said, on 5 May 2006.  Those orders provided that the children of the union of the applicant wife and her former husband, the respondent in these proceedings, namely, the elder son who was born on … February 1999 and the younger son who was born on … October 2000 live with the husband during the school term from after school Friday to before school Tuesday and every second weekend. 

3. It was further ordered that the children otherwise live with the wife during school term at all other times except those to which I have just referred.  Each of the husband and wife were to retain joint long-term responsibility for the children.  Further orders were made by the learned Registrar that dealt with school holidays (paragraph 5), Christmas holidays (paragraph 6), both Christmas Day and Boxing Day (paragraph 7), both Mother’s Day and Father's Day (paragraph 8) and the children's birthdays (paragraph 9). 

4. I am satisfied that the husband has been served with the Application for Contravention which was returnable initially before Young J on 18 April 2007.  The husband was present in court that day and as a result of the matters clearly stated in his Honour's judgment, the wife's Form 18 Contravention Application was adjourned to 23 May 2007 and hence it comes before me.  The wife is represented this day by Mr Hebblewhite of counsel.  The husband was called at 10.20 am, again at 12 midday and he was further called at 2.20 pm.  He failed to answer the call.

5. When the matter was before Young J on 18 April 2007, his Honour varied paragraph 3(a) of the orders of Registrar Kaur made 5 May 2006 so that the children live with the husband from after school Friday, when he would collect them from school, to 6.30 pm on Monday.  Paragraph 2 of his Honour's orders dealt with that provision.  His Honour further ordered that the Monday changeover take place at the agreed venue within the car park, Kmart W, and both parties were to be punctual in their delivery and collection of the children. 

6. His Honour made a further order, particularly given the circumstances of the events that occurred outside court that day, that for all purposes of changeover, both the wife and the husband be and were restrained from threatening, harassing, assaulting, intimidating the other or likewise from so acting towards any other adult person present at the changeover. 

7. The application I deal with is thus one for contravention.  The Family Law Amendment (Shared Parental Responsibility) Act 2006 enacted a new Division, 13A of Part VII, of the Family Law Act1975 (as amended).  Division 13A deals with proceedings for contravention of a child-related order.  Subdivision A of the new Division 13A contains a simplified outline of the Division.  It provides for the application of the Division and defines "contravened an order" and "reasonable excuse".  I note that definitions have generally been moved to section 4 of the Act, but some terms are defined by reference to another section.

8. Subdivision B of the Family Law Amendment (Shared Parental Responsibility) Act 2006 also confers power to vary a primary order in all contravention cases under Division 13A, whether or not a contravention is established.  "Primary order" is defined in Section 4.  It is the order to which a Division 13A contravention case relates.  Subdivision E prescribes the court's powers, in addition to the power to vary under Subdivision B, for less serious contraventions without reasonable excuse.  Subdivision F sets out the court's powers, in addition to the power to vary under Subdivision B, for more serious contraventions without reasonable excuse.

9. Thus it is that a court may vary an order under the Act affecting children in any case where it is alleged a person contravened the order, whether or not the court is satisfied of the contravention.  If an order being varied is a parenting order, then the order varying is also a parenting order and s 60CA of the Act, that is, the best interests of the child being paramount, applies.

10. Subdivision E, as I said, deals with less serious contravention without reasonable excuse.  Under the new Division 13A for less serious contraventions without reasonable excuse, I may vary the order contravened and require the respondent (or, subject to conditions, both respondent and the applicant) to attend a post‑separation parenting program, make a compensatory parenting order, adjourn the contravention proceedings to allow either or both parties to apply to discharge, vary or suspend the relevant order or to revive an earlier parenting order.  I may also require the respondent to enter into a bond, compensate a person for all or some expenses and make a costs order.  I note that before requiring a party to attend a post-separation parenting program, I must consider seeking the advice of a Family Consultant about the services appropriate to the parties' needs.

11. Section 70NAF of the Family Law Act deals with the standard of proof.  Subsection (1) provides that:

    “Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this division is proof on the balance of probabilities.”

12. That standard, being the requisite standard of persuasion, is also prescribed in s 140(1) of the Evidence Act (Cth) 1995 and is in effect statutory prescription of the rule laid down in Briginshaw v Briginshaw (1938) 60 CLR 336.

13. In coming to my determination on this issue, I have regard to the contents of the affidavit of the wife filed on 30 March 2007 and the oral evidence she gave before me this day. 

14. I deal firstly with the contravention that is alleged to have occurred on 10 June 2006 (Count 1), set out in the wife's application and referred to in her affidavit.  The wife deposed that on that day, (a Saturday), the husband accosted her in the car park after a football event for the two boys.  She complained that he intimidated her, threatened her and took the children off her without permission, asserting that he would return them “later”.  In her evidence before me, the wife said that the husband approached both her and the two boys before they had gained entry to her motor vehicle and said words to the effect, "Let's go to McDonald's for lunch."  The boys were excited.  The wife said that she was "incredibly frightened", and she was alone.  She said that the elder son had already responded and was walking away with his father.  In a matter of fairness in the course of her evidence, the wife said that if this had been the only breach, she would not be in court today.  However, she made it clear that as she was now dealing with a “series of breaches”, she considered it appropriate to bring this matter before the court.

15. Having regard to all the evidence I have heard on this count, I find the contravention is made out but I do not regard it as of a serious nature, particularly given the wife's fair concession that if there had been no further breaches, she would more likely than not have done nothing about it.  Furthermore, and significantly, the alleged breach occurred some nine months ago and there was no evidence led to expand or explain her evidence that she was “incredibly frightened”.  It seems to me the husband simply acted in a dictatorial way, in disregard of the court orders and the fact that it was the wife’s time with the children.  His conduct was selfish, autocratic and arbitrary.

16. The children went willingly, it seems, with their father.  The husband was, however, in my view acting in a coercive manner and took the children into his own hands without regard to the time that he was to spend with them and that there was nothing the wife could do about it without exposing the children to drama.  It involved an action on his part without regard to the authority of the court, and albeit that it is a contravention of less seriousness than one normally has in court, it evidences the husband's lack of respect for the authority of the court and his overbearing and, as I said, dictatorial manner towards the mother of the children.

17. The next contravention is alleged to have occurred on 23 September 2006 (Count 2).  This was curious in that the husband chose not to exercise holiday contact with the children.  They were left in the wife's care.  She was working full‑time and thus had to make last-minute arrangements for their care during her working day.  This alleged contravention is, in my view, not made out.

18. It was the husband's personal and selfish election not to attend for holiday contact.  However, it is patently obvious that he denied to himself the privilege of having the children in his care.  In my view, notwithstanding the alleged contravention not being made out, he acted irresponsibly and without proper regard to the children's best interests, let alone his own parental obligations.  The contravention is, in the circumstances, not made out and will be dismissed.

19. The next contravention is alleged to have occurred on Tuesday, 7 November 2006 (Count 3), being Cup Day.  This really involves an interpretation of paragraphs 3 and 4 of the consent orders made on 5 May 2006.  For the sake of clarity, and notwithstanding having earlier summarised the relevant orders, I will incorporate into this judgment those orders:

    “(3)     That the said children live with the husband during the school term:

    (a)from after school Friday to before school Tuesday every second weekend commencing 5 May 2006.

    (4)That the said children live with the wife during school term at all times except those referred to in order 3.”

20. In the result, the wife's partner and her father attended the Hungry Jacks Restaurant pursuant to the court orders at 9 am on the Tuesday, not being a school day, but Melbourne Cup day.  The husband was not there with the children.  There was no communication from the husband.  They waited an hour, but he did not attend.  The wife said that the children were taken to school the following day, on Wednesday morning.  She said she tried to make contact with the husband later on the Tuesday, but failed.  She spoke to a police officer and was informed the husband was refusing to return the children to her, having, it appears, falsely informed him (the police officer) that his overholding, if I can put it in such a simplistic term, was with the consent of the wife.  This she denied.

21. I find that the husband's conduct on this occasion appears to very much reflect his ill-disposed attitude to the wife and his thorough inability to communicate in a dignified manner on matters concerning the children's welfare.  Put simply, the wife was left out in the dark.  She tried to communicate with the husband, but failed.  He made no endeavour, it seems to me, to offer any communication with her. 

22. In the circumstances, and having regard to the requisite standard of persuasion to which I have earlier referred, I am not satisfied this contravention is made out and will be dismissed.  With that said, however, I do comment that I regard his overall conduct that day as quite irresponsible.  It was, consistent with earlier conduct, autocratic and evidenced little respect for the wife, and the placement of his own interests before that of the two children.

23. The next contravention is alleged to have taken place on 14 November 2006 (Count 4).  That too was a Tuesday.  This was the weekend following the Melbourne Cup weekend to which I have earlier addressed my attention and was the wife's time with the children.  As I understand it, what the husband did was, without notice and acting unilaterally, collect the children after school and take them away to some other undisclosed place.  The wife was, due to her work commitment, to collect them from an “after-school program” between 5.30 pm to 6 pm.  School finished at 3.30 pm. 

24. There was no basis for him to collect the children as he did.  He later dropped them off to the wife at about 7.45 pm.  In the course of her evidence, the wife said she “was worried and concerned”.  There was no special occasion for him to act as he did, but was an unheralded act on his part.  I find that contravention made out.  The husband did act unilaterally and without regard to the consent orders.  His indifference to the orders of the court is quite plain and ought not be tolerated.  One can well understand the concern caused to the wife as a result of what I regard as his overbearing conduct.

25. The next alleged contravention occurred on Tuesday, 6 February 2007 (Count 5).  The two alleged contraventions next following occurred on 6 March 2007 (Count 6) and 20 March 2007 (Count 7), which were also Tuesdays.  In the course of her evidence in court, the wife said that she had moved her place of residence and had, with prior notice being given to the husband, changed their schools.  She said the husband had the children in his care from the previous Friday after school, and assumed he would collect them, take the children to the school on Monday morning, 5 February 2007, collect them and return them to school the following morning in accordance with the orders of the court made 5 May 2006.

26. On 6 February 2007, the wife learned that the children were not at school.  They had not been taken to school on either Monday, 5 February 2007 or Tuesday, 6 February 2007.  She said the first day of their new school was on the previous Thursday, 1 February 2007.  She took them to school that day.  The husband was informed of the new school arrangements in November, 2006.  In the result, on 6 February 2007, the husband dropped them off to the police station in the evening at about 6.30 or 7 pm.  The breach is quite clear in that the children were not delivered to school at 9 am when his time with the children ended and they were in effect, pursuant to the orders, albeit at school, in the wife's care for collection by her from the after-school program.

27. The alleged contravention on 6 March 2007 (Count 6) was of a similar vein.  On that occasion, the husband in the result dropped them off at her parents' home at about 1.30 pm in the afternoon of 6 March 2007.  The alleged contravention on 20 March 2007 (Count 7) fell into the same pattern.  The children on each of those occasions were not at school on the Monday or the Tuesday.  On 20 March 2007 the children were collected by the wife or her agent at 7.30 pm at the police station. 

28. I find those three contraventions made out to the requisite standard of persuasion.  In each of Counts 5, 6 and 7 the husband acted in wilful disobedience of the court orders and took the situation into his own hands with what I regard as utter indifference to the orders to which he consented on 5 May 2006.  It appears to me he paid little, if any, regard to the children's welfare but arguably satisfied his own self-indulgent feelings.  His disregard to the children’s welfare and their schooling is obvious.  I suspect that he permitted the wife's change of residence and of the children's school (of which he had ample notice) to subsume any commonsense on his part.  Accordingly, those three contraventions are made out.

29. Dealing with the changeover ordered by Young J on 18 April 2007.  In the course of his submissions before me, Mr Hebblewhite submitted that the wife, by reason of the breaches, sought an order that the children, in accordance with the orders of Young J, be collected from after school on Friday but, varying his Honour's orders, namely, collected at a changeover point in the Kmart W car park at 6.30 pm on the Monday evening next following, to being collected by the wife after school.  Accordingly, his time with the children would be from Friday after school until Monday morning when the husband would deliver the children to school.

30. The incident that occurred on 18 April 2007, as I understand it, may yet have to be dealt with by another court in a different jurisdiction.  Given the apparent gravity of the circumstances and associated violence, it seems to me that this is a situation where the parties ought not be in contact with each other.  In the giving of her evidence, the wife explained that she suffered anxiety and concern at the fact of meeting in a car park with the husband, particularly having regard to his alleged violent conduct outside this court on 18 April 2007.  She is in fear of him.  That I can understand, and in the circumstances it appears to me that it would be appropriate for the collection by the husband for the purposes of the alternate weekend contact to take place from after school, as I said, on the Friday and that he then return the children to the school on the Monday.  By this arrangement, the parties need not come face to face and the wife would not be exposed to the potential for serious violence as took place outside this court.

31. Furthermore, it seems to me that with the children having to disembark their father's car in the car park and then walk across to their mother's car has a rather warlike feature to it that I cannot see in any way would benefit their welfare.  The only difference, in the result, is a few hours after school on the Monday.  I see the application for orders of that nature as being quite appropriate in the circumstances. 

1. That leaves of course the other changeovers that are outside school times, such as school holidays, Easter holidays, the mother's and father's birthdays and the children's birthdays and the like.  They are all referred to in the orders of Registrar Kaur.  It seems to me that changeover for the purposes of those orders should take place, as submitted, at the L police station.  I propose to make orders then to give effect to that.

2. Accordingly, I find that the contraventions alleged on 10 June 2006, 14 November 2006, 6 February, 6 March and 20 March 2007 are made out.  I will further order that the alleged contraventions of 23 September 2006 (Count 2) and 7 November 2006 (Count 3) be dismissed.  They are not made out.  That brings me to the issue of what to do on the question of penalty.  It seems to me that the husband should be heard on this issue and I will adjourn the further hearing in order to receive submissions from the husband. 

3. Mr Hebblewhite has sought an order for costs. Section 117(1) of the Family Law Act 1975 (as amended) provides that each party shall bear their own costs. Section 117(2) provides that in proceedings under this Act, if the court is of the opinion that there are circumstances that justify it in so doing, the court may make such order as to costs as is considered just.

4. In considering a costs order, I am to turn to s 117(2A) of the Act, which sets out various matters for my consideration.  The proceeding before me is, in effect, an application for breach of the court orders.  Having regard to all the matters that I have heard, I am of the view that there are circumstances that justify the making of an order for costs. 

5. I know very little about the financial situation of the parties other than that there are property proceedings before the court involving, however, a very modest pool of assets.  However, that alone is not a factor that militates against the making of an order for costs, for I must have regard to the whole of the circumstances surrounding the matter under consideration.  In my view the circumstances warrant the making of an order and I propose to order that the costs of and incidental to the application filed 30 March 2007 be assessed and, when assessed, be paid by the husband. 

6. Mr Hebblewhite sought an order for costs of $5000, being comprised of a brief fee of $2400, a conference charged at $600 and professional fees otherwise associated with the preparation and the attendances of the solicitor in the sum of $2000.  No submissions were made as to the separate particulars comprising the total sum in accordance with the Schedule, in which circumstances I propose to make the order for an assessment of costs rather than to fix costs.  I will make that order accordingly.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  8 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as FRAPE-LINDSTROM