Isles and Spurr

[2010] FamCA 1269

FAMILY COURT OF AUSTRALIA

ISLES & SPURR [2010] FamCA 1269

FAMILY LAW – CONRAVENTION – father alleges mother contravened Court Order – alleged contravention brought pursuant to Part VII Division 13A – mother admitted she had no reasonable excuse – bond imposed

Family Law Act 1975 (Cth)

APPLICANT: Mr Isles

RESPONDENT: Ms Spurr

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: LNC 400 of 2009

DATE DELIVERED: 22 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 22 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Fitzgerald

SOLICITOR FOR THE APPLICANT: Legal Aid Commission

COUNSEL FOR THE RESPONDENT: Mr I Guest

SOLICITOR FOR THE RESPONDENT: Ian Guest & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P McVeity

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McVeity & Associates

Orders

1. The respondent mother appear before this court at 9.00am on Thursday 23 December 2010 with counsel so that the Court may explain to the mother a Bond which the Court will require the mother to enter into, such explanation under s70NEC(5) of the Act and leave be given for the parties to attend by telephone by dialling ...

2. The mother is required to enter into a bond without security in the sum of three thousand dollars ($3,000.00) to be of good behaviour for a period of twelve (12) months from the date of this order.

   IT IS ORDERED

3. Order made on 22 November 2010 be varied to provide the following:-

   (a)on Sunday 2 January 2011 the child M born … 2007 (“the child”) shall spend time with the father between 10.00am and 3.00pm;

   (b)changeover to be effected outside the Town 1 Police Station between the mother and her agent and the father to be present but not to approach within fifty (50) metres of the mother and the changeover to be supervised and managed by his partner Ms B.

4. 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.

5. All other outstanding applications, including the cotempt application be adjourned to the commencement of the final hearing in this matter in the February 2011 sittings.

6. Leave be given to the parties to have the matter listed before me on the giving of twenty four hours notice.

7. Costs of the Independent Children’s Lawyer and the father be reserved.

   IT IS FURTHER NOTED

8. The mother was personally served with the documents and was represented by counsel at the time of the making of this order.

   IT IS FURTHER DIRECTED

9. A copy of the reasons for these orders be taken out and placed on the court file.

10. These reasons not be published.

    IT IS CERTIFIED

11. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym <pseudonym> 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 SYDNEY

FILE NUMBER: LNC 400 of 2009

Mr Isles

Applicant

And

Ms Spurr

Respondent

REASONS FOR JUDGMENT

1. In the proceedings of Isles & Spurr, there is an application that the mother be dealt with for contravention of an order under division 13A of Part VII of the Family Law Act 1975 (Cth), in particular subdivision E. The application arose in these circumstances, an order was made by me on 22 November 2010 that the father spend time with the child the child, aged three, each Sunday, initially supervised by the Children’s Contact Service for 30 minutes and then supervised by Ms B, provided she gives an undertaking. The matter came before me a short time ago on 9 December 2010 at which time the mother appeared and indicated to the Court that she did not wish to comply with the order.

2. That was in circumstances where I asked her if any events had happened since 22 November 2010 and she said no, apart from her desire not to comply with the order.  The independent children’s lawyer, who is responsible for putting the interests of the children before the Court, said there was nothing of which he was aware to cause the Court concern in terms of the order operating.  I stood the matter over and warned the mother that there were serious consequences in this Court for failing to comply with orders.  The mother appeared today through counsel, and there was before the Court at that time an application of contravention, a contempt application, an affidavit filed by the father on the 14 December and an affidavit by Mr C, who attended at court today in respect to the matter.

3. Counsel for the father indicated that they intended to proceed with the contravention application today.  The three alleged contraventions which I will deal with in a moment were admitted.  It was admitted that there was no reasonable excuse within the meaning of the legislation.  As such, I am satisfied that on 29 November 2010 at Town 1, the respondent mother without reasonable excuse failed to make contact with the D Children’s Contact Service on or before that date to make the Service aware of the terms of the order of 22 November 2010 and to request the Service facilitate time between the child and the father in accordance with order 2 of the orders of 22 November 2010 and continues to refuse to request the Service to facilitate time between the child and the father pursuant to the orders of 22 November 2010.

4. In addition, on 5 December 2010 at the D Children’s Contact Service, the respondent mother without reasonable excuse refused to provide the child, the child Isles, to enable her to spend time with the father as set out in order 2 of the orders made 22 November 2010 in that the mother failed to make arrangements to or to deliver the child to the D Children’s Contact Service for the purpose of time ordered. 

5. Thirdly on 12 December 2010 at the D Children’s Contact Service, the respondent mother without reasonable excuse refused to provide the child, M, to enable her to spend time with the father as set out in paragraph 2 of the orders made 22 November 2010 in that the mother failed to make arrangements or to deliver the child to the D Children’s Contact Service for the purpose of time ordered and continues to refuse to provide the child to spend time with the father pursuant to the orders of 22 November 2010. 

6. I then moved to the penalty phase of that process.  It was initially submitted by the father that I ought to deal to deal with the matter under subdivision F.  I indicated that I was considering dealing with it under subdivision E, and no significant objection was taken to that course, and I, in fact, intend to do so. 

7. The father sought an order that I make it a condition of the bond that the mother enter into personal undertakings to comply with the Court orders.  I have some concerns about adopting that course, as there may be some implicit power, but there is no explicit power under the section, and whilst I may have those implicit powers, the mother is required to be of good behaviour, and it is clear that being of good behaviour must include complying with the order unless there is reasonable excuse.  Accordingly, I do not intend to make that order at this time. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 December 2010.

Associate:     

Date:              22 December 2010