H and K
[2004] FMCAfam 140
•25 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & K | [2004] FMCAfam 140 |
| FAMILY LAW – Contravention of specific issues orders – where the mother moved the children to a new school without the father’s knowledge or consent – whether an order for joint responsibility for the long term care, welfare and development of a child could be breached – consideration of the principles espoused in Vlug & Poulos (1997) FLC 92-778. |
Family Law Act 1975 (Cth), Division 13A, ss.64B(6)65P, 70NG(1)(a), 70NG(1)(b)(a), 112AB, 112AB(1), 112AB(2), 112AD
Family Law Reform Act 1995 (Cth)
Vlug & Poulos (1997) FLC 92-778
B v B; Family Law (Reform) Act (1977) FLC 92-755
| Applicant: | P F H |
| Respondent: | J R J K |
| File No: | MLM 5055 of 2001 |
| Delivered on: | 25 March 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 23 March 2004 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms D Wiener |
| Solicitors for the Respondent: | Nil |
ORDERS
This application coming on before the Court AND UPON HEARING the father in person and Ms Weiner for the Respondent Mother AND UPON THE COURT HAVING FOUND that the mother has not breached orders as alleged in the Contravention Application filed 1 March 2004:
The said Application be and is hereby dismissed AND THE COURT HAVING FOUND there is no Contravention in relation to counts 2, 3 and 4 of the Application for Contravention filed 6 February 2004.
The said counts are dismissed AND THE COURT HAVING FOUND that the mother has breached the order made on 18 May 2000 providing for joint responsibility for the long term care, welcome and development of the of the children without reasonable excuse as alleged in count 1 of the Contravention filed 6 February 2004 IT IS ORDERED:
Pursuant to s.70NG(1)(a) the parties attend before a provider of a post‑separation parenting course so that the provider can make an initial assessment as to the suitability of the parties to attend a program and if assessed by the provider to be suitable to attend a program or part of a program and the provider nominates a particular program to attend, the parties are to attend that program or part of that program.
AND UPON THE ORAL APPLICATION OF THE PARTIES:
Pursuant to s.70NG(1)(b)(a) Order 2(h) of the orders made in the Family Court of Australia on 24 February 2003 be varied by discharging paragraph 2(h) and inserting in lieu the following:
That the wife do all that can reasonably be required of her to make the children available for telephone contact from the husband on a landline at the home of the children each Monday, Wednesday and Friday between 6 pm and 7 pm. In the event that the wife is not able to make the children available for telephone contact as provided herein:
(a)she telephone the husband on a landline or, if a landline is not provided, on his mobile number the same evening or as soon as practicable thereafter and advise him of a number at which he can then telephone the children; and
(b)if the number given to him is a mobile number, the mother ensure that the mobile phone is kept on during the period nominated by her for a phone call.
That the applications be otherwise dismissed.
That there be liberty to apply in relation to the attendance at the post-separation parenting course if necessary.
I direct that a copy of the Reasons for Judgment be transcribed and made available to the parties and the provider of the post-separation parenting course.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 5055 of 2001
| P F H |
Applicant
and
| J R J K |
Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)
Introduction
The applications before me for determination are two applications for contravention brought by the father, one filed on 6 February 2004 (the first application), and the other filed on 1 March 2004 (the second application). Both of these applications were dealt with together, and in respect of all of the counts alleged, the mother has denied any breaches. I intend to go through each of them separately. The contraventions are brought pursuant to Division 13A of the Family Law Act 1975 (Cth) (the Act).
The first application
First, it is alleged that orders made by Watt J in the Family Court of Australia on 18 May 2000 have been breached. The relevant part of that order provided that the husband and wife, (who I am referring to in these proceedings as the mother and father), have joint responsibility for making decisions concerning the long-term care, welfare and development of the two children.
It is alleged by the applicant father that on 4 August 2003 the mother moved the children to a new school without his knowledge or consent and thereby breached the order. The respondent submitted that this count should be summarily dismissed as it disclosed no breach, that is to say that there was nothing specific in the order for joint responsibility that would enable the Court to find a contravention based upon the failure to do certain acts or things.
The first matter that I must therefore address is the respondent's contention that the order for joint responsibility cannot be breached in the manner alleged by the father, that is, that the children were placed into a new school without his knowledge or consent. The Full Court of the Family Court of Australia considered the issue of whether an order for joint responsibility for the long-term care, welfare and development could be breached in Vlug & Poulos (1997) FLC 92-778. At page 84,596 the Full Court, consisting of Finn, Kay and Moore JJ, said:
Thus the Full Court has indicated that it would be desirable and in accordance with the intention of the legislation for parents to consult in relation to major decisions concerning their child. However, whether this apparent duty to consult can be enforced by legal proceedings, presumably by injunction where the parental responsibility arises by virtue of the legislation or by contravention proceedings where it arises by virtue of an order, was not discussed by the Full Court in B v B. It is not necessary for us in the context of this case to explain this question in its entirety. We need only concern ourselves with the position in relation to specific issues order which confer parental responsibility jointly.
On the same page they went on to say:
That a specific issues order which confers on a person either long-term or day-to-day responsibility for a child can at least in certain circumstances be subject to enforcement or contravention proceedings under Part XIIIA of the Act is clear from the provisions of section 112AB and section 65P of the Act.
The Court then went on to set out the various provisions of the Act and said at page 84,597:
It is to be noted that section 65P draws no distinction between a specific issues order which confers joint responsibility on more than one person and such an order which confers responsibility on more than one person without doing so on a joint basis. It is sufficient to say that we are satisfied, given the provisions of section 64B(6), section 65P and section 112AB(1) and (2), that an order can be made conferring long-term responsibility for a child on a person jointly with another person and that such an order is capable of being the subject of contravention proceedings if a person in whose favour such an order is made is hindered or prevented from carrying out his or her joint responsibility under the order by any other person, including by the person on whom parental responsibility has been conferred.
Again on page 84,597, further down they say:
However, as we have just discussed, there is under the Act as now amended by the 1995 Reform Act the express requirement that persons Act in accordance with a specific issues order which confers responsibility for the long‑term care, welfare and development of a child and there is further express requirement that persons do not hinder or prevent a person on whom that responsibility has been conferred from discharging that responsibility (see section 65P and section 112AB(2), both of which provisions are quoted above). It would therefore seem clear that any such hindrance or prevention is capable at least in some circumstances of being the subject of a contravention application under section 112AB.
Again on page 84,598, dealing with the specific matters before it in Vlug & Poulos, the Full Court said this:
We are also satisfied that under the specific issues order conferring on the parties joint long-term parental responsibility, the wife was required to consult with the husband in relation to matters such as education and religion and naming of the children.
I am therefore satisfied that I have jurisdiction to entertain an application under section 112AD for breach of what the Full Court refer to as a specific issues order conferring on the parties’ joint responsibility for the long-term care, welfare and development of the children. I therefore turn to the evidence given in relation to this matter.
The mother relied upon a letter which she wrote to the father advising him that she was intending to change the children's school. That letter was dated 30 July 2003 and is annexure 6 to the first contravention application. The letter is addressed to the father and the first part of the letter indicates that the mother was relocating to the Albury/Wodonga area and tells him of her new address in accordance with paragraph 2(i) of the orders made by Carter J on 23 February 2003. As those orders required her to advise of change in the telephone number, she indicates in the letter that a new number has not yet been established but he can contact them on their mobile. The next paragraph suggests that the father collect the children from her residence, and the final paragraph deals with the question of schooling:
Also please be advised of the children's new school, and the principal is Mr B, contact phone -
and the phone number is given:
The school has on file the current contact orders, and provisions are made as per the orders.
The mother relied upon that letter in the event that the Court found the order capable of breach as evidence of her, having complied with any responsibility that she may have to allow the father to exercise parental responsibility in any meaningful sense. I do not agree. The letter is in quite directive terms. It says, and I emphasise:
The children's new school is A's School, Wodonga. [my emphasis]
That is clearly a statement conveying information to the father about a decision that had already been made by the mother. I regard the notice given in that form as hindering or preventing the father from carrying out his joint parental responsibilities to share in decisions regarding the children's education. It is clear that joint parental responsibility includes responsibility for the children's education. It may have appeared to the mother that because she was moving for improvement in her employment, that it was a sensible move. It may have been that if the parties had consulted and discussed, then the move would in any event have taken place without objection. However, that did not occur. The letter was directive and a decision had clearly been made. Had it invited consultation for discussion, then my decision may well have been different. But it did not and in the circumstances I find that the mother has hindered or prevented the father from carrying out his joint parental responsibilities in relation to the children's education and breached the order which was made on 18 May 2000.
The second matter alleged in the first application relates to orders which were made on 23 February 2003 in the Family Court of Australia by Carter J. The relevant order that it is complained has been breached is order 2(h) which provides as follows:
That the wife do all that can be reasonably required of her to make the children available for telephone contact from the husband on a landline at the home of the children each Monday, Wednesday and Friday between 6 pm and 7 pm. In the event the wife is not able to make the children available for telephone contact as provided herein, the wife is to cause the children to telephone the husband at the husband's expense at the husband's home either that evening or as soon as practicable thereafter.
It is alleged that on 21 January, 23 January, 26 January and 28 January 2004 the mother failed to make the children available and failed to cause the children to telephone the father thereafter. The mother conceded that the children were not available for the phone calls on those dates. The context of that, which emerged from the evidence, was that this period occurred following a period when the children had been with their father during the Christmas school holidays. The mother had taken the children on holiday and they were not available at their home for the call. That of course would not have caused the father to allege a breach of the orders if it were not for the fact that he had not been contacted thereafter.
What emerged from the evidence was that the father's landline had been disconnected, although the mother had his mobile number. The father has complained that he had been subject to harassment in relation to his phone and that is why he had disconnected the landline. I make no finding about whether or not that did occur, but that was his explanation. He contended that therefore the mother should have called him on his mobile to enable the telephone contact to take place and that she had breached the order in not doing so.
The mother's defence to this rested upon an interpretation of the order itself.
The mother contends that the use of the word "in the husband's home" clearly indicates that it is a call to be made on a landline notwithstanding that the word "landline" is not used. The father says that because the word "landline" is not used, it is not limited to a landline and it is the mother's obligation to have the children telephone him, which can include a mobile number if he has such a number.
I do not agree with his interpretation. As I said to the parties yesterday, it is unfortunate that the determination of some of these matters rests upon an interpretation of orders which the parties thought were clear and unequivocal and which regrettably may not turn out to be so.
I conclude that the mother's contentions are correct because I cannot see how otherwise one can make sense of the words "the husband's home". If it was to be on his mobile, then those words would not have been used. Further, as was contended by counsel for the mother, ringing on the mobile would not necessarily be ringing him at home and in any event it seems to me coupled with the words "at the husband's expense" it suggests the capacity to make a reverse charges call if appropriate. I am certainly not satisfied that that could easily be done on a mobile.
For those reasons, to make sense of that subsection I interpret the orders to mean that the mother is to telephone the father at his home. As it transpired, he has disconnected his home phone and did not have a home phone landline on which he could ring, albeit that she could have rung on his mobile. It may sound unduly technical to find that there is no breach on this basis. However, contraventions involve penalties and, depending upon the nature of the contravention, can involve a fine or a prison term. Therefore I must strictly define the breach. As the father did not provide a phone, I therefore find that the mother was not obliged to call him as she could not do so at his home and a breach has not been proved.
I think that the mother has acted somewhat opportunistically in this matter, notwithstanding that I have found that there is no actual breach. As a matter of practicality, I cannot see why she could not have called him on his mobile and given him a number or even left a message on his mobile with a number at which he could have called the children at his expense wherever they were. That would have been a practical solution and it did not happen. However, as I have said, I do not find that in the circumstances of the wording of the order it has been breached. A question of whether that order should be varied to enable the intent to be carried out is something that I will consider at the conclusion of my judgment if I am asked to do so.
The next contravention alleged in the first application is that the mother has contravened order 2(i) of the orders by not advising the father of a change in her contact phone number when she was away during holiday periods. The mother again relies upon the interpretation of the section and contends that that section requires her to advise of a change of address and phone number if she changes the residence of the children but not if she is merely away for holidays. The section itself says:
That each party within 48 hours provide the other with a contact telephone number and any changes to the contact telephone number or to their residential address in the event that there is a change of address, telephone contact number.
The father contends that the orders require her to advise him even if she is at a different phone number. I do not agree with his interpretation and, in my view, the orders should be interpreted to mean, as its context provides in my view, that if she changes her residential address and phone number that she is to advise him. There is no detriment to the father if it is interpreted in this way provided that paragraph 2(h) was being complied with. I can understand why he has included that subsection as part of the breach alleged, because of the failure to make the telephone contact otherwise workable, but in my view subsection 2(i) of the orders was intended to relate to a residential change in address and phone number and I do not find that breach proved.
The next breach alleged was a breach of the order of 24 February 2003, in particular paragraph 6 which is as follows:
That the wife notify the husband of any functions or events at either of the children's schools that parents are ordinarily invited to attend not otherwise noted in the school newsletters and the husband should be at liberty to attend.
The particular allegations are that on about 20 August the children were involved in a school book week parade which was not listed on the school newsletter and the father was not sent notification, nor advised by the mother. The second is that on 3 September G was performing in the school assembly which was not listed on the newsletter and he was not advised, and the third allegation is that on 19 November 2003 C was performing in the school assembly which was not on the newsletter and the father was not advised. There was no dispute that the father did not receive advice of these activities. The mother's evidence in relation to the parade was that she did not know beforehand that the children were going to be involved in a parade and she learned only early that morning. In relation to the two assemblies, her evidence was that she herself missed the assemblies and was not aware of the children's performance.
I accept that it would be difficult for the father in an evidentiary sense to make out his case where the evidence really rests solely on the mother's version. However, I am required to be satisfied to the requisite standard of proof that there has been a breach. There will obviously be matters from time to time which occur spontaneously or without much prior warning that the father cannot be advised of. Having considered the evidence, I have no reason to disbelieve the explanation of the mother or, put another way, I cannot be satisfied to the requisite standard that the mother has deliberately breached order 6 of the order and I find that that breach is not established.
The second application
I turn now to the second application. The first allegation in the second application is really again an assertion that paragraph 2(h) of the orders of 23 February 2003 has been breached when the mother failed to make the children available for telephone contact or to make return phone calls on 4 February, 11 February, 16 February and 18 February. For the reasons that I have already given in relation to the previous allegation, I am not satisfied that there was an obligation, absent a landline for the father for the return calls to be made and I find that this allegation has not been established and that there is no breach.
The final allegation relates to an order made on 24 February 2004 requiring the parties to advise each other of changes in contact numbers and addresses. I have already read out paragraph 2(i) which contains the section now being relied upon. The father contends that the mother did not advise him within 48 hours of changes to her residential address and relies upon the fact that written notification came from her solicitors outside the 48-hour period in which notification was to be given. However, the evidence was that the mother had on the same day that she moved, namely, 10 February, notified the police and arranged for the police at Tallangatta to advise the father of her change of address. The father acknowledged that the police attempted to contact him but asserted that the mother had to give him the notice personally and was not entitled to do it through the auspices of the police.
Whether or not that was a good idea is not for me to say, however, there is no requirement in the orders that notice be given in any particular way or not be given in any particular way and I am satisfied that the mother arranged for the police to notify the father and that notification in accordance with the order was given and I find that that breach has not been established.
As a result of my findings therefore, I found there has been one breach established in relation to the first contravention application and that requires me to now consider what penalty should flow from that breach.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 23 April 2004
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