HARRIES & CANON (No.2) - [2011] FMCAfam 1013

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRIES & CANON (No.2)

[2011] FMCAfam 1013

FAMILY LAW – Children – contravention of parenting orders – contraventions of earlier interim orders replaced by final orders – contraventions of current orders.

Family Law Act 1975, s.70NBA(1), 118

Rice & Asplund (1979) FLC 90-725
Sandler & Kerrington (2007) FLC 93-323

Applicant:

MR CANON

Respondent:

MS HARRIES

File Number:

BRC 670 of 2009

Judgment of:

Jarrett FM

Hearing date:

9 August 2011

Date of Last Submission:

9 August 2011

Delivered at:

Coffs Harbour

Delivered on:

9 August 2011

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

In person

ORDERS

AND UPON THE COURT FINDING that the respondent mother has, without reasonable excuse, contravened the orders made in the Federal Magistrates Court of Australia on 24 February 2011 in that in contravention of order 4(a) of the orders of 24 February 2011, she failed to make the children available to spend time with the father on 26 February 2011 and 27 February 2011.

THE COURT ORDERS THAT:

The children [X] born in 2003 and [Y] born in 2005 spend time with the father for an additional eight (8) weekends to be chosen by the father in the next twelve (12) month period and notified to the mother in writing no less than fourteen (14) days prior to the chosen weekends.
All other outstanding applications for contravention be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT COFFS HARBOUR

BRC 670 of 2009

MR CANON

Applicant

And

MS HARRIES

Respondent

REASONS FOR JUDGMENT

(ex tempore)

This is an application for contravention filed on 29 March, 2011. It is an amended application. There are a large number of contraventions alleged against the mother in relation to a number of orders. I have not added them up; I don’t know how many exactly there are. What I do know is that there is a long history of litigation between these parties – the file runs to four volumes. The parties have had, most recently, a trial before Walker FM in November of 2010. Her Honour delivered judgment in March of 2011.
The material filed in support of this application, which I took the opportunity to read before the matter commenced, demonstrates an appalling co-parenting relationship between the mother and the father. Each has allegations against the other; some of them may or may not be true, but almost all predate the trial before Walker FM.
I did not conduct the trial that has led to the final orders that are now in place, nor have I read the reasons for judgment of Walker FM, and so I know nothing of any findings of fact that may have been made about the allegations that are replete in the material filed by both of these parties for this contravention application.
Apart from the contraventions that arise post-November 2010, all of the evidence in respect of the earlier contraventions either could have – or, I suspect, probably was – led before Walker FM. For reasons which are not entirely clear, there was an outstanding application for contravention that her Honour did not deal with at the final hearing of the parties’ parenting application and which I was called upon to deal with at an earlier sitting of this Coffs Harbour circuit. I dealt with that application; I found that the mother had contravened certain orders without reasonable excuse, and I placed her on a bond earlier this year.
But, by and large, the matters complained of now are matters which, no doubt, were available to the parties to agitate when they were before Walker FM for a final hearing. That of itself is no reason not to deal with contraventions that are alleged, but in the circumstances which I will recant shortly, it seems to me it is a factor to be taken into account in exercising my discretion to deal with these contraventions.
On more than one occasion now, Mr Canon who is the applicant on the contravention, has told me that the reason this application has been commenced is so that the current orders can be changed in some way so as to better reflect the best interests of his two boys, the subject of the orders made by Walker FM. When I asked him directly a moment ago whether there was any other purpose for which these proceedings had been commenced, he told me that there was not – and they were certainly not commenced to punish the mother or to provide him with any form of vindication. When I asked him what it was that he wished to achieve through these proceedings, and leaving aside his motherhood statements about having the parents act in a way in which was in the best interests of the children, it came down to an application by him to have the current orders changed and, if I understood him correctly, to have orders that the children live with him and that he be able to relocate internationally, presumably to Belgium.
Contravention proceedings in respect of orders concerning children are not properly used, at least in my view, as a vehicle for the suspension, discharge or variation of parenting orders. True it is that the Court has power under s.70NBA(1) of the Family Law Act 1975 to vary parenting orders that might be the subject of a contravention application, but as Warnick J makes clear in Sandler & Kerrington (2007) FLC 93-323 at [41], if the Court is about to embark upon wholesale changes or changes if any substance to parenting orders, then it needs to do so within the structure set out in the rest of Part VII of the Family Law Act1975, not Division 13A. That is to say, the case ought to be commenced, conducted and determined according to the structure set out in Part VII rather than by way of a summary determination pursuant to Div. 13A. I have no doubt that Warnick J was not intending to lay down any hard and fast principle; there are always exceptions. But this case is not exceptional.
To the extent that both of these parents, but in particular the father, is dissatisfied with the current orders, there are a number of options available. The first, although it is now too late, is an appeal.

The evidence does not demonstrate that an appeal has been lodged. The second is to bring an application to have the current orders discharged, varied or suspended. In the absence of an order under s.118 of the Family Law Act1975 which restrains the father from bringing any further proceedings, no leave is necessary to bring such an application. Whether the application will be successful is an entirely different matter. The father will have to overcome what is known generally as the rule in Rice and Asplund (1979) FLC 90-725. And, given that much of the matters of complaint in this application predate the hearing, there may be difficulty in overcoming that hurdle. But as I say, this is not an appropriate vehicle for applying to set aside, discharge or vary the current parenting orders in the way in which the father wishes to do.
There are two contraventions that the mother admits, and which occurred after the orders of Walker FM. They are contraventions which occurred on 26 February, 2011 and 27 February, 2011 when the respondent, without reasonable excuse, refused to allow the applicant to spend time with the children [X] and [Y].
I propose to deal with those two contraventions for two reasons: firstly, they post-date the orders of Walker FM, that is, they are breaches of the current order; and second, the mother admits them without qualification. I do not propose to deal with any of the other contraventions alleged against her for the reasons that I have already given.
In terms of a sanction against the mother, she is already on a bond.

The contraventions that she has admitted took place before she entered into the bond. On the material, therefore, she has not breached the bond. In respect of sanction, the father could only articulate that he wanted the orders changed in terms of a sanction, but for the reasons I have already given, I am not about to embark on that process.

The mother offered that perhaps it would be appropriate if there was makeup time, and the words that she used demonstrated that it was the father who was having his time made up.
The way in which she phrased her submission to me makes it entirely clear that her focus is not on what the children are entitled to; her focus is not on what their rights are, but rather, it is a focus on the father.

His focus is no different; he is focused on the parents and himself rather than the children.
Like so many other cases that this Court sees, I have two parents who are absolutely convinced that their actions are in the best interests of their children, and that they have nothing but the best interests of their children at heart. However, if that were truly so, they would not behave in the appalling way that each of them describes in their affidavits. Neither is better than the other.
The conflict has been raging for years. It shows no sign of abating. And so these children will look forward to a childhood which will be characterised by the difficult and conflicted interactions between their parents, which are described in the affidavits as from time to time involving police, involving violent behaviour and involving bad language. That will be their memory of their parents, not much else. But that is a choice that these parents have made, and it is not a choice about which, I can do anything.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 21 September 2011