Hajjar and Kelly

[2011] FamCA 490

FAMILY COURT OF AUSTRALIA

HAJJAR & KELLY [2011] FamCA 490

FAMILY LAW – ORDERS - Contravention

Family Law Act 1975 (Cth)

APPLICANT: Mr Hajjar

RESPONDENT: Ms Kelly

FILE NUMBER: MLC 3394 of 2010

DATE DELIVERED: 14 June 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 June 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the contravention application filed 18 May 2011 is dismissed.

BY CONSENT IT IS ORDERED

1. That paragraphs 7c, d, and e of the order made 2 August 2010 be discharged.

2. That the children M and N both born … May 2004 spend time and communicate with the father during school term and long summer school holidays as follows:

   (a)    for the first week of each school term holiday commencing the last Friday of school, for eight days (being seven nights) until 2.00pm the following Friday;

   (b)    each alternate week during the long summer holidays commencing the last Friday of school, for eight days (being seven nights); and

   (c)    at all other times and dates as agreed in writing between the parties.

3. If the children are not already spending time with the Mother pursuant to these orders and the parenting order dated 2 August 201, the children’s time with the father be suspended on Good Friday, Easter Saturday and Easter Sunday with the mother to provide make up time to the father as agreed.  Failing agreement, make up time shall be the Friday, Saturday, Sunday of the second week of the fortnightly cycle in the following school term pursuant to the parenting order dated 2 August 2010.

4. That the parties attend and complete a post separation parenting course.

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3394 of 2010

Mr Hajjar

Applicant

And

Ms Kelly

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by Mr Hajjar that Ms Kelly, the mother of the two children in these proceedings, to be dealt with for contravening an order that was made on 2 August 2010. 

2. There are two allegations:  one relates to failing to provide the children for a specified period of time in the term 1 holidays of 2011, and the other relates to breaching paragraph 4 of the orders which concerns telephone time, and particularly ensuring the children are made available and afforded privacy. 

3. The argument in relation to the privacy issue now seems to have gone away, because Mr Hajjar says he is now speaking to the children, but the complaint seems to be that the telephone has been on loudspeaker. 

4. Ms Kelly says that Mr Hajjar abused her, and he denies that, as does his witness, who says she was in the house at the time.  Neither of the parties agreed on what should have been happening, and that gave rise to what was the dispute.  There does not really seem to be a dispute about the telephone contact at all, so that allegation will be dismissed. 

5. The allegation in relation to the time to be spent during the school holidays is also fairly simple.  When both parties were examined about just what the order meant to them, neither really understood it.  Mr Hajjar says that he spent $10,000 having lawyers sort the orders out and when he had a problem understanding the orders, he contacted them.  They have told him his version is right.  His version is that the orders mean that he has five days and Ms Kelly has five days, and then they have five days alternating.  The orders do not say that at all. 

6. Ms Kelly says she did not understand the orders.  She did not have a lawyer spending any time with her on the day.  She said her lawyer told her that Mr Hajjar would get what he was after, and so she just signed the minutes. 

7. The problem with that, of course, is that the minute does not make at all clear just what the obligation is under the order.  The existing order provides effectively for the bulk of the school holidays to be spent with Mr Hajjar, and even he does not suggest that that is appropriate.

8. I am satisfied in the circumstances that Ms Kelly did not fully understand the nature of the order and that the contravention of that particular paragraph cannot be proved.  On that basis, both allegations will be dismissed. 

9. A completion of the contravention application, however, gives rise to the jurisdiction of Part VII of the Family Law Act 1975 (Cth), and I propose to stand the matter down so that the parties can spend a little bit of time to try and rectify what is effectively a mess that they have created.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 June 2011.

Associate: 

Date:  28 June 2011