Grant and Aiden

[2011] FamCA 928

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN [2011] FamCA 928

FAMILY LAW – CONTRAVENTION

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 11 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 11 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Combes

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That in relation to the husband’s Contravention Application filed 20 May 2011, the first allegation is struck out and all remaining allegations dismissed as not proven.

2. That in relation to the husband’s Contravention Application filed 11 October 2011, the first allegation is struck out and all remaining allegations dismissed as not proven.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

REASONS FOR JUDGMENT

1. I made final orders on 4 February this year in relation to five year old V. 

2. Mr Grant has now filed two contravention applications against Ms Aiden, each supported by an affidavit.  The first application was filed on 20 May, with his affidavit filed on the same day.  The second application was filed on 11 October, and again his supporting affidavit was also filed on that same day.

3. Ms Aiden is unrepresented today but has been well prepared and across the detail of the material. 

4. To find a contravention proven, I must be satisfied that she has failed to comply with obligations under an order and without reasonable excuse (see s 70NA and s 70NAE of the Family Law Act). 

5. I have closely followed the provisions of O 20 R 8 of the Family Law Rules as to the procedure to apply in contravention applications.

6. At the start of the hearing, two allegations, the first one on each application as it happens, were struck out as containing technically incorrect detail.  The first application then retained 13 charges, all relating to a failure to provide telephone contact pursuant to paragraph 8 of the 4 February 2011 orders, between 7 February and 16 May this year.  All were denied by Ms Aiden.

7. The second application retained 18 charges.  One related to an alleged failure to produce the child for time with her father on 20 July 2011, contrary to paragraph 5(b) of the 4 February orders.  The balance of the 17 charges again related to a failure to provide telephone contact, this time on occasions between 23 May and 26 September this year.  She also denied these allegations.

8. After Mr Grant was cross‑examined by Ms Aiden, she gave her response.  In summary, as to not producing the child on 20 July, she said she did not believe that it was a time spent with occasion under the orders, given the sequencing around school holidays.  As to phone calls, with some different details in relation to some different calls, overall she said that she they did in fact occur.

The 20 July 2011 Alleged Breach

1. I shall deal first with the alleged breach on 20 July, set out in the second application, given that it is the only remaining allegation of the mother failing to provide the child for time with her father.  Otherwise, the other Wednesday, weekend and holiday time has been proceeding.

2. Under the orders, Ms Aiden was obliged to arrange after-school care for the child on each alternate Wednesday, for Mr Grant to collect her at 5 pm, and then to return her at the M Suburb police station at 7.30 pm.  Ms Aiden agrees that on 20 July this year the child was not at after-school care and not made available for collection by her father.  She says that on her calculation of how the orders were to proceed after term holidays, it simply was not his day.

3. The evidence certainly supports that the parties had been in dispute about that calculation.  Indeed, it seems from 9 May, Mr Grant had threatened contravention proceedings against the mother solely because of their different interpretations of the order.  And, I have first-hand knowledge that it was a sufficiently pressing concern as a breakdown between them, that when the matter came before me on 17 June this year – and the mother was not present, there being some issues around the question of service – I was asked and did make orders to clarify the regime.  I made provision too for service of those orders on the mother. 

4. Ms Aiden said she did not receive the orders until later, on 15 August.

5. Mr Grant did not produce evidence of service, until he tried to do so, via Counsel, late in the hearing.  As a matter of fairness to the mother, I did not permit it at that late stage. 

6. In any event, as I have noted, otherwise all the face-to-face time has been proceeding.

7. Mr Grant says that he was told by the after care person on Wednesday, 20 July, that the mother had called the previous day to say the child would not be coming.  It is implicit in that it was not just that she did not believe it was his day, but that she was wilfully and knowingly saying, in effect, “I won’t produce the child.”  He did not produce that person as a witness. 

8. Ms Aiden said “To the contrary.  It was the first day of school on 20 July so I couldn’t have had such a conversation and did not have such a conversation with any worker there the previous day.”

9. It is word against word.  For reasons that I will come to in a moment, there are some issues with Mr Grant’s reliability in relation to aspects of his application.  That, combined with the support for the mother’s version that there was a genuine confusion and/or disagreement about the interpretation of the orders, the obvious need for their clarification as sought by the father in Court, and given there has been no other problem on a Wednesday since then, I am not satisfied that that allegation is proven on the balance of probability.

10. I now turn the telephone calls.  Overall, Mr Grant claims that he never gets to speak to his daughter.  Either the mother’s mobile phone is not answered or if it is, no one speaks.  He sets out with apparent precision what occurred on each of the alleged breach occasions in that respect.  He, however, produced no telephone records at all.  He said he used prepaid phone cards.  He says he does not have any of the relevant cards, and therefore no records, and he says that it did not occur to him to retain such records.

11. Ms Aiden, who also uses prepaid cards, has on the other hand retained at least some of the records, saved into her phone.  She produced them in Court.  She put them to Mr Grant.  If accepted, and there was no reason on the evidence not to accept them as part of her genuine prepaid phone record, they greatly undermine his account.

12. In particular, they show that on 25 July, when he claims there was no answer at all to his call, her telephone received a call from his number at 18:13:40, a call which lasted for two minutes six seconds.  On 8 August, when he claims there was no answer, her phone shows that at just before 6 pm at 17:57:21 there was a 34-second telephone call.  On 29 August when he says that the call was answered but no one spoke for a period of about two minutes, her records shows that there was in fact a telephone call lasting precisely seven minutes and four seconds.  On 5 September, when he says that he called but there was no answer, her telephone, checked by counsel for Mr Grant, shows calls from the father before and after that date but none at all on that date.  On 19 September, when he claims that he called but again the child did not speak, a call that he says lasted one minute 40 seconds, her records show a call of three minutes seven seconds.

13. In addition, he claims that on 7 February he could not call the child as Ms Aiden had failed to produce her telephone number in accordance with the orders.  It is absolutely clear form correspondence that she had produced the telephone number, she had properly passed it on, and in fact the problem lay, it seems, with his lawyer failing to pass it on to him.  Certainly the charge of 7 February cannot be proven.

14. Further, although an allegation that on 1 April there had been a breach orders with the mother failing to produce the child when she should have, and although that charge was struck out, it became clear in evidence that she had in fact produced the child and the child had in fact stayed with the father that weekend.  He said ultimately when he saw all the evidence which made that quite conclusive, including his own solicitor’s letter confirming it, that he must have made a mistake with the dates.

15. All those matters in combination are important in a case that is word against word.  Mr Grant says that there was no answer at all on many occasions or the child would not speak at all.  Ms Aiden says that all calls were answered and the child spoke, although it might be that she was speaking intermittently with periods where she simply walked around holding the phone, listening.  Neither produced any full record to assist me.  He, prosecuting the case, produced none.  She, not obliged to produce anything, did produce some.  They undermined his account, as did these other aspects I have referred to. I cannot be satisfied on the balance of probability that the allegations are proven.

16. So both applications, the remaining allegations, are going to be dismissed.    

17. That leaves only two things open.  One is, I must say, out of the blue and with no fair warning, Ms Aiden now says that she wants to have an application heard that Mr Grant not be permitted to bring any further applications.  Without even calling upon Mr Combes as to whether it would be fair and appropriate to allow that as an oral application at the eleventh hour, without time to answer it, I do not see any substance to that application at all.  I have found these allegations not proven but I am not concerned that it was just a frivolous application. 

18. What I am concerned about is that I think there is an issue from a different perspective about the telephone contact and I would certainly like to take a few moments to try to address that.  I did not want to probe it too far in the course of the evidence because I was trying to separate out the difficult task of a fairly strict and tight procedure on the contravention proceedings.  But the Act, as I mentioned, certainly empowers me, if not entreats me, to try to address any underlying issue.

19. This little five year old, one way or another, and I can say this neutrally, on any view, is not having healthy, productive telephone contact with her father.  Even on the mother’s version, she is walking around holding the receiver and intermittently uttering some words.  I think it needs to be addressed and it needs to be addressed in the way that is going to stress her least.  So I would welcome any submissions about that.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 11 November 2011

Associate: 

Date:  11 November 2011