Harris and Harris

[2016] FamCA 286

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS [2016] FamCA 286

FAMILY LAW – CONTRAVENTION – where on the balance of probabilities the alleged contravention has not been established – where the four counts are dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Harris

RESPONDENT: Mr Harris

FILE NUMBER: ADC 4951 of 2009

DATE DELIVERED: 15 April 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Harley

SOLICITOR FOR THE RESPONDENT: Dixon Gallasch Pty Ltd

Orders

1. The contravention in so far as it relates to the first count of the alleged breach of 30 December 2015 is dismissed.  (Count 1).

2. The contravention in so far as it relates to the second count of the alleged breach of 8 November 2015 is dismissed.  (Count 2).

3. The contravention in so far as it relates to the fourth count of the alleged breach of 3 February 2016 is dismissed.  (Count 4).

4. Judgment is reserved in relation to the contravention of the alleged breach of 26 January 2016.  (Count 3).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Harris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4951 of 2009

Ms Harris

Applicant

And

Mr Harris

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I accept that the issues put to me by the counsel for the father establish that the mother has not provided sufficient evidence to establish that on 30 December 2015 the father breached paragraph 2.  Whilst I have evidence which clearly suggests that the father was abusive towards the mother and behaved in an inappropriate way in conversations with the mother, I do not have sufficient evidence to establish on the balance of probabilities that that behaviour was in the presence of the children.  The mother’s submissions were that she now says that they would have been somewhere in the house and he was yelling at her on speaker phone and the children would have heard it.

2. That is a speculation and, bearing in mind this is a Contravention Application, I am not satisfied to the necessary standard of proof (on the balance of probabilities) that a sufficient basis has been established upon which there is a case to answer for the father in relation to that category of the Contravention Application.  I dismiss the contravention so far as it relates to the first count relating to 30 December 2015.

3. In relation to the Contravention Application which is referred to in the contravention dealing with the item on 8 November 2015, the mother alleges that on that date there was a contravention of paragraph 2 of the order of 16 December 2015.  That is obviously not possible.  Even if the Court were to give her leave to amend the Contravention Application to refer to the orders of 22 January 2015, the Court may well find that that order was breached in relation to the mother’s inability to speak to the children at approximately 5.30 pm on that Sunday.  The father’s evidence of any excuse has not yet been given.

4. I am of the opinion, however, that, taking into account the nature of Contravention Applications, the error in the Contravention Application is significant.  The Court should not, therefore, require further evidence to be given to deal with it as if it were a contravention of the order of 22 January 2015.  Those matters, however, will be factors which can be taken into account on when a final trial of the proceedings, if such is necessary.  At that hearing the Court may take into account the attitude of the parents to their responsibilities as parents and their capacity to continue to encourage a meaningful relationship with the other parent.  I therefore dismiss the second item of the Contravention Application, which refers to 8 November 2015.

5. The next matter is the evidence in relation to 26 January 2016.  It is conceded that there may well be a case to answer in relation to that item. 

6. The last Contravention Application is an allegation in relation to a contravention of the orders of 16 December 2015 on 3 February 2016.  

7. The Contravention Application refers to the events on 3 February 2016 as a breach of paragraph 2 of the order of 16 December 2015.  It is submitted that there has been no breach established of paragraph 2 of the order.  The reference in the Contravention Application refers to the mother trying to contact the children by ringing them at 17.58 and there being no success.  The affidavit then says:

   At 1845 pm I contacted the children.  However, the father was yelling in the background that they had to get off the phone as they had to go to school tomorrow.

8. In her affidavit, the reference to the 3 February telephone call was in similar terms.  The submission is that that does not establish a breach of paragraph 2 of the order of 16 December 2015.

9. This is a Contravention Application with possible serious consequences.  I am not satisfied that the mother has established to the necessary standard on the balance of probabilities that the father yelling at the children in the background to get off the phone as they had to go to school tomorrow is a breach of paragraph 2 of the orders of 16 December 2015.  I therefore dismiss that part of the Contravention Application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 April 2016.

Associate: 

Date:  2 May 2016