Higginson and Higginson

[2014] FamCA 490

FAMILY COURT OF AUSTRALIA

HIGGINSON & HIGGINSON [2014] FamCA 490

FAMILY LAW – CONTRAVENTION – Where the husband alleges there have been five contraventions – Where the wife denied four contraventions and admitted one with reasonable excuse – Where the husband conceded that two of the charges had not been made out – Where a prima facie case was found in relation to the remaining three charges –  Where two of the three charges were proven – Where the husband sought make up time and an order for costs as a result of the contraventions – Where the matter is adjourned until the application to vary the parenting orders has been determined.

Family Law Act 1975 (Cth) s 70NEB

APPLICANT: Mr Higginson

RESPONDENT: Ms Higginson

FILE NUMBER: SYC 1824 of 2011

DATE DELIVERED: 2 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 6 and 11 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Dimocks Family Lawyers

Orders

NOTING that Ms Higginson has contravened orders made 20 February 2013 that the children spend time with the father in the June/July 2013 and September/October 2013 school holidays.

1. That the Orders made 20 February 2013 be varied to include, as Order 7(iv) the following Order:

   7(iv)In the event that the children are in the care of the father on the last weekend of a holiday period, then they shall spend time with the father on the second weekend of the school term and alternate weekends thereafter. If the children were in the care of the mother on the last weekend of the holidays, they shall spend time with the father on the first weekend of the school term and alternate weekends thereafter.

2. The application is adjourned pursuant to section 70NEB (c) of the Family Law Act 1975 (Cth) to a date to be fixed after the disposition of the wife’s application to vary the parenting orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Higginson & Higginson 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

FILE NUMBER: SYC1824/2011

Mr Higginson

Applicant

And

Ms Higginson

Respondent

REASONS FOR JUDGMENT

1. Mr Higginson (“the husband”), the applicant and the father of E born in 2003 and J born in 2005, asks the court to deal with the respondent and mother, Ms Higginson (“the wife”) for alleged contravention of parenting orders made on 20 February 2013 (“the orders”) following a defended hearing.

2. At the commencement of the proceedings the wife was charged with five allegations of contravention. Those allegations are set out below. The wife in relation to each charge was asked whether she admitted the allegation, denied the allegation or admitted the allegation but asserted she had a reasonable excuse. The charges and the wife’s response in relation to each allegation are set out below.

   1.That on 17 October 2013 the wife failed to make the children available to spend weekend time with the father in accordance with Order 7(i) made 20 February 2013

   Response: denied

   2.That between 15 April 2013 and 29 April 2013, the wife failed to make the children available to spend half of the school holiday period with the father in accordance with Order 7(ii) made 20 February 2013

   Response: denied

   3.That after 24 June 2013 the wife failed to make the children available to spend half of the school holiday period with the father in accordance with Order 7(ii) made 20 February 2013           

   Response: denied

   4.That after 29 September 2013 the wife failed to make the children available to spend half of the school holiday period with the father in accordance with Order 7(ii) made 20 February 2013

   Response: admitted but with reasonable excuse

   5.That on 14 May 2013 the wife discussed the proceedings, being the appeal, with the children contrary to Order 25 made 20 February 2013

   Response: denied    

3. The husband was cross-examined by Counsel for the wife and at the conclusion of the cross-examination Counsel for the husband conceded that charges 2 and 5 had not been made out. Accordingly, the Court was required to determine whether a prima face case had been made out by the husband in relation to charges 1, 3 and 4.

4. After hearing submissions from Counsel for the parties, I determined that a prima face case had been made out in relation to all three charges. Following are my reasons for coming to that conclusion.

CHARGE 1

1. The husband gave evidence that on Thursday 17 October 2013, that being the Thursday immediately following the preceding school holidays, he spoke to E who said to him “Dad, we are not going to be seeing you this weekend as mum said we are going to stay at our friends place”.

2. On Friday 18 October the husband sent a text message to the wife which read “Hello the holidays are over, it my weekend mum is getting dinner organised please confirm you are dropping the kids off at 6 pm thanks”. (sic)

3. The wife responded to the text message on the same day in the following terms:

   You did not arrange anything with me during holidays regarding children. As [E] has told you when you have seen her every day this week, she has a sleep over arranged. As per arrangement since separation, I keep in sync with my sister so the cousins can all see each other. So it’s not your weekend so they won’t be getting dropped off today at 6 pm.

4. The husband then texted:

   I have not had the kids for 7 weeks now you denied me access during the holidays because i could not agree to your versions of calendar it is my weekend i have not seen [E] every day this week and it is not her responsibility to be telling me that you won’t be giving me access again response is noted i am not getting the children again this weekend. (sic)

5. The wife responded:

   I agree it isn’t her responsibility but you keep telling her every day before school that you will make sure the kids go to you this weekend. I have told the court the children are not robots they have a sleepover. It is not your weekend and if you had communicated you would have been aware. I’m not playing along with your mind games.

6. The husband replied:

   The kids were told i would take them to the show ages ago because i knew it was my weekend to have them so assurity of telling them i would be seeing them this weekend is based on that and my not realising that you would see fit to deny me access once again.(sic)

7. It was submitted by Counsel for the wife that the husband’s reliance upon the date of the conversation, that is 17 October 2013, rather than the following day 18 October 2013 which was the day the children were due to be delivered, was fatal to the charge. I do not accept that submission. It is clear from the husband’s affidavit that his complaint is that he did not have the children on the weekend commencing 18 October 2013, that having been communicated to him on 17 October 2013.

8. The text messages from the wife, referred to above, indicate that her refusal to allow the children to spend time with their father stemmed from her wishing to keep their arrangements in synchronicity with those of her sister’s children rather than an assertion that 18 October 2013 was not a day upon which the father, pursuant to the orders, should have had time with the children. Accordingly a prima face case has been made out.

9. The parties agree that the orders should be amended to clarify the weekend on which the husband’s time with the children commences after school holidays. Neither made any specific proposal. I will order that, if the children are with the husband for the weekend immediately before the commencement of term, then the term time order commences on the second weekend of the term. If the children are not with the husband on the last weekend of the holidays, then he should have them for the first weekend of the term.

CHARGE 3

1. The orders provided for the children to live with the husband for half of the short school holidays and, in the absence of agreement, the second half.

2. It was common ground that the June/July school holidays in 2013 lasted for 24 days. It was the wife’s case, in cross-examination of the husband, and the husband ultimately agreed, that the children had spent 11 days and ten nights with him during that period. (I note that in her affidavit sworn 10 June 2014 at paragraph 13, the wife deposes that the children spent nine nights with the husband).

3. The husband had not had the children for one half of the school holiday period.

4. Annexed to the husband’s affidavit was an email from the wife setting out the day she proposed the children should spend time with the husband. The wife’s proposal was that the children should spend time with the husband from 6 pm on Friday 21 June, that being the last day of school, until 9 am on 26 June (four days and two nights); from 9 am on 1 July until 4.30 pm on 3 July (three days and two nights); and from 6 pm on 6 July until 9 am on 9 July (two days and two nights). Those periods do not equate to half of the school holiday period.

5. The wife contended that because the husband collected and delivered the children in accordance with her proposal that constituted an agreement on his part.

6. It was the husband’s evidence that he complied with the wife’s proposal because, in his words, he wanted to see the children, he didn’t agree, but he took what he got.

7. In a letter to the wife dated 18 September 2013 the husband, in the course of organising the time with the children in the September holidays, said “Due to the last school holiday calendar being unbalanced and me not receiving my share of access with (the children), we will revert to orders as it is stated ‘if both the parties cannot agree on arrangements’”.

8. The husband did not have the children for half of the school holidays. It is the husband’s evidence that he did not consent to having the children for less than half the school holidays and on that basis a prima face case is established.

CHARGE 4

1. The wife admits that she failed to make the children available in accordance with the orders. Accordingly a prima face case is established in relation to this charge.

2. After the ruling in relation to the prima face case was made, the matter was adjourned for the wife to file any material upon which she wished to rely and the matter resumed at 2.15 pm on Wednesday 11 June 2014.

THE WIFE’S CASE

1. The wife swore an affidavit on 10 June 2014. Counsel for the wife tendered, in her case, excerpts from a file produced by the New South Wales Department of Family & Community Services (“DFCS”). The file was admitted into evidence on the basis that Counsel for the wife would direct my attention to specific documents which were relevant to the question of the wife’s having contravened the orders. Ultimately, I was not directed to any specific evidence from the file.

2. The wife was cross-examined.

3. In relation to the first charge, it was ultimately conceded by Counsel for the husband that the Orders did not specify when the husband’s time with the children should recommence after the school holidays. The wife interpreted the expression “every second weekend” in Order 7(i) to mean that the husband’s time commenced on the second weekend of the term. That interpretation is reasonably open on the wording of the order.

4. It was conceded by Counsel for the husband that the wording is capable of the wife’s interpretation and accordingly, the charge is not proved.

5. The third charge relates to the June/July school holidays in 2013.

6. The wife in her affidavit sworn 10 June 2014 deposes to the school holidays being of 24 days’ duration and the husband having nine days and nights with the children. She gave no explanation for the preparation of a timetable which allowed the husband less than 12 days and nights with the children.

7. It is agreed that the husband collected and delivered the children in accordance with the timetable proposed by the wife.

8. In cross-examination, the wife conceded that the husband did not, at any time, indicate that he agreed with or consented to her proposal.  

9. The husband spent time with the children for nine days between 21 June 2013 and 9 July 2013.

10. On 29 April 2013 the husband sent an email to the wife. In that email he said, inter alia, in relation to the June/July school holiday period, that he did not wish to “follow the same program as per last school holidays” and instead his preference was to break the holiday period in half and spend time in accordance with the orders.

11. The wife responded “we’ll worry about that when the time comes. Nearly 3 months away”.

12. There was, at that time, a dispute between the husband and the wife about the time when school holidays started. Both, at one time or another, asserted that the first weekend of the holidays was not included in the calculation of the holiday period. Each now accepts that weekend time with the children abates during school holidays.

13. On 6 July 2013 the husband sent a further email to the wife, reminding her of the April email and saying, inter alia, “Furthermore on 21^st June at 6.15pm you phoned me to advise I would not be getting (the children) as expected and as per is stated that I should have access to them in the orders. You were therefore in breach of these orders (sic)”. The husband stated that the school holidays ran from 24 June 2013 until 15 July 2013. It was the husband’s contention that the wife’s timetable did not allow him half of the school holiday period. The email concluded “If you do not bring the children as per the orders I am putting you on notice that I will start contravention proceedings against you. At those proceedings, I will rely on this letter…”

14. In cross-examination the wife said that she believed that the husband had accepted her proposal for holiday time. Having regard to the contents of the husband’s email of 6 July 2014, I do not accept her evidence.

15. The wife had clear notice by email that the husband did not agree to her proposals and that there was no agreement.

16. Her obligation was to ensure, in the absence of agreement, that the children spent the second half of the school holiday period with their father. She did not.

17. The charge is proven.

18. The fourth charge relates to the September/October 2013 school holidays. The wife admitted that the children did not spend any time with the husband during those holidays.

19. On 18 September 2013, the husband sent an email to the wife in which he said, inter alia, “Due to the last school holidays being unbalanced and me not receiving my share of access with (the children) we will revert to the orders as it is stated ‘if both parties cannot agree on arrangements’”.

20. In her affidavit she deposed to having sent the husband a proposal for the holidays on 20 September 2013. The husband responded. He did not agree with the proposal. He pointed out that the school holidays ran for 21 days and proposed that the children be with him for two periods totalling 10 days. 

21. The wife sent a text message to the husband saying “Do you agree with my email”. The husband responded “No I do not agree, therefore as per the orders failing agreement refer to 7(ii), I get second half they go back on the 15 that means there is 25 days I get half of the holidays (sic)”.

22. The wife replied “School holidays start Monday 23^rd Sept-14^th Oct. 21 days. My proposal gives you 10 days (sic)”.

23. The husband replied, “No there is 25 days they go back on Tuesday the 15 so from Saturday the 21 there is 25 days so that mean half of that time”.

24. The text messages continued. The wife proposed Monday 7 October to Sunday 12 October asserting that the husband would have the children for 12 days.

25. No agreement was reached.

26. In her affidavit, the wife deposed that she prepared the children for the husband to collect them from Little Athletics on the evening of 4 October 2013 and that she expected the husband to collect them from the meeting. The husband did not attend the meeting. At no time did the wife advise the husband that the children would be delivered to him on 4 October 2013.

27. The mother, by way of reasonable excuse, asserted that she believed that there was an agreement.

28. In cross-examination, she agreed that 24 September 2013 was the mid-point of the holiday period.

29. It was put to her that the husband had never communicated to her his agreement to her proposal. She said that she assumed he agreed.

30. I do not accept that evidence, having regard to the emails and text messages between them.

31. There was no agreement between the parents about the September/October school holiday period. The wife knew there was no agreement. Her obligation was to ensure that the children spent the second half of the school holiday period with their father. They did not spend any time with him during the school holidays.

32. The charge is proven.

CONSEQUENCES OF THE FINDING THAT THE WIFE HAS CONTRAVENED AN ORDER

1. This is a first contravention. It is conceded by Counsel for the husband that it falls into the category of a less serious contravention and the powers of the Court are set out in section 70NEB.

2. The husband seeks “make up” time with the children in the September school holidays and an order for costs.

3. Counsel for the wife contended that, because the children’s circumstances have changed since the filing of the application, the matter should be adjourned pursuant to section 70NEB(c).

4. The wife has filed an Application in a Case asking that the Orders be varied. In support of that application, she relies on an affidavit sworn by her on 10 June 2014. Counsel for the wife had asked that this affidavit be read in the contravention proceedings but, on the objection of Counsel for the husband, I declined to read the affidavit.

5. However, Counsel for the husband properly conceded that I should read the affidavit in relation to the wife’s application to adjourn the contravention proceedings.

6. The affidavit deposes to the involvement of the then Department of Community Services (“DOCS”) with the children; the children having made statements to the Police in relation to Apprehended Domestic Violence proceedings (J’s statement having been typed by the wife); issues relating to the husband’s attention to the children’s health; arguments between the parents in the presence of the children; and fears expressed by the children. The mother proposes family therapy as a means of overcoming what she perceives to be difficulties in the children’s relationship with their father.

7. I am acutely conscious that the wife’s evidence is untested and will no doubt be hotly contested by the husband.

8. However, I cannot make an order for the children to spend an extended period of time with the husband unless I am satisfied that this would be in their best interests.

9. Having regard to the evidence of the wife, I cannot be satisfied and therefore it is appropriate to adjourn the matter until the application to vary the parenting orders has been determined. The orders will make provision for the matter to be relisted before me after that determination.

10. Once those proceedings have been finalised, the matter can be relisted before me by arrangement with my Associate for further submissions in relation to the husband’s request for make-up time and costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 July 2014.

Associate: 

Date:  2 July 2014