Kabir & Kabir (No. 3)

[2021] FamCA 69

FAMILY COURT OF AUSTRALIA

Kabir & Kabir (No. 3) [2021] FamCA 69

File number(s):	CAC 2337 of 2019
Judgment of:	GILL J
Date of judgment:	17 February 2021
Catchwords:	FAMILY LAW – contravention – whether orders contravened with reasonable excuse – where there was a reasonable excuse – where makeup time ordered
Legislation:	Family Law Act 1975 (Cth) ss 70NAC, 70NDA
Number of paragraphs:	18
Date of hearing:	17 February 2021
Place:	Canberra
Solicitor for the Applicant:	Mr Cooper
Solicitor for the Respondent:	Ms Gilbert

ORDERS

CAC 2337 of 2019
BETWEEN:	MR KABIR Applicant
AND:	MS KABIR Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	17 FEBRUARY 2021

THE COURT ORDERS THAT:

1.It is found that the contravention alleged in the Application for Contravention of 23 September 2020 is established.

2.The mother has established that there was reasonable excuse for such contravention.

3.Order is made pursuant to s 70NDB for an order compensating person for time.

IT IS FURTHER ORDERED, WITHOUT CONSENT

4.That the father shall spend time with the children from Wednesday 4 pm on … May 2021 through to Thursday at 9 am … May 2021 with handovers to take place at K Services as long as K Services is available.

IT IS FURTHER ORDERED, BY CONSENT

5.That the father shall spend time with the children from 10 am on … September 2021, being a Saturday, until 4 pm on … 2021, being a Sunday, with handovers to take place at K Services where K Services is available and otherwise on the Sunday where it is certain that K Services is not available, with the hand over to take place at the McDonald's in B Area.

IT IS FURTHER ORDERED THAT

6.The matter is transferred to the Registrar's list pending the Registrar giving further directions or the matter being relisted for the giving of trial directions.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

GILL J

1. These proceedings, taken by the father against the mother, concern an alleged contravention set out in the father's Application for Contravention filed 23 September 2020. 

2. There, he alleges that on … 2020, the respondent mother failed to make the children, X and Y, available for them to spend time with him from 4 pm on … 2020 until 4 pm on … 2020. 

3. The orders provided that, on becoming available, the handovers would take place at K Services, which is a supervision and handover facility in the Australian Capital Territory. 

4. The mother concedes that she did not provide the children in accordance with the order, but asserts that she had a reasonable excuse for failing to do so. 

5. The burden of that assertion rests on her to the civil standard.  The factual matter relied upon by her to establish reasonable excuse is the assertion that the children were unwell and unable to be provided to the father. 

6. As noted per Orders of 7 May 2020, the parties would use K Services for handovers on K Services becoming available.  On … September 2020, in accordance with the Orders, the father attended at K Services to collect the children and very shortly before he was scheduled to collect them, he was informed by K Services that the children would not be attending because they were ill.  K Services’ policy is to exclude children from its services, including its handover services, if children are unwell.  Hence, if the children were unwell, it forms an explanation of why they were not handed over via K Services in a manner that would constitute a reasonable excuse. 

7. I pause here to observe, however, that s 70NAC of the Family Law Act 1975 (Cth) may arguably also mean that there is no contravention as it could not be established that there was an intention to fail to comply or no reasonable attempt to comply with the orders. This matter was not argued and it was accepted that there was a contravention of the orders, so I will not consider that matter further in these proceedings.

8. The key factual issue then is were the children unwell as represented by the mother.  There is some supporting evidence that the children were unwell, or at least X was unwell as early as … September 2020.  On that day, X and the mother attended upon the doctor.  The doctor was heavily reliant on the mother's account as to X’s unwellness being some form of gastrointestinal unwellness.  But the context of the steps that were taken by the mother to secure the attendance upon the doctor lend support to X at that stage being unwell and hence, I am persuaded that as at … September 2020, X was unwell. 

9. The mother's account is that the condition of the children varied across the following week in the lead up to and following the ordered time for changeover.  During that week, the mother and the children engaged in various activities, which she says is consistent with the condition of the children varying across the week.  The mother's further account is that on the day of handover, the children again became unwell with the gastrointestinal disorder. 

10. The mother sought to further support her evidence by means of a doctor’s certificate dated … September 2020.  It may be observed that that was a telephone attendance only, and was wholly reliant on the mother's representations to the doctor and therefore, takes the matter no higher for her.  The issue is whether or not the mother's evidence is to be accepted as to the children's varying states of unwellness.

11. Central to the father's challenge to the mother's evidence are two matters.  The first is asserted inconsistencies in her accounts to various people as to when the children's illness commenced.  This, however, I do not take as being a matter of great significance given the attendance on the doctor on … September 2020. 

12. Of much greater moment is the question of the significance of pictures that are annexed to the father's affidavit. 

13. I pause to set the context of the particular visit that was due to take place with the father.  The time that the children were to spend with the father corresponded with Y’s birthday.  Understandably, the father had taken steps to organise a celebration on the day that Y and X were due to spend time with him.  Those steps included organising visitors from Sydney to attend for the birthday celebration for Y.  That birthday celebration did not take place because the children were not provided.  Hence, the significance of the pictures. 

14. What is depicted in the pictures is that despite the illness claimed by the mother, the mother posted pictures on social media regarding activities on Y’s birthday, that is the day following the failed handover, depicting birthday celebrations and participation in those by Y.  The question that arises is that if Y was well enough then, has the mother discharged her burden to prove reasonable excuse in firstly not handing over Y at K Services and secondly, in not later facilitating time if Y had recovered sufficiently?

15. The mother's evidence in relation to those birthday celebrations is that she did not organise the items that are depicted in the various photographs but rather, two of her friends attended bearing with them cupcakes, cakes and items relevant to the celebration of the birthday, including a dress.  She further says that in the context of what had been a variable state of unwellness and wellness, Y was well enough by late afternoon to participate in some birthday celebrations, which I pause to note correspond to about the time that Y would have been required to be returned in any event by the father if Y had been provided in accordance with the orders. 

16. The images posted by the mother reasonably raise some suspicion about her assertions as to unwellness forming a reasonable excuse for non-compliance with the orders.  However, despite the raising of some suspicion, it is not sufficient in this case to reject the mother's description, which is sufficient to establish that the children were unwell sufficiently to constitute a reasonable excuse for not only not handing the children over, but also for not subsequently providing the children.

17. Accordingly, I find that the contravention is established, but reasonable excuse is also made out. That finding renders s 70NDA applicable in determining how to deal with the matter.

    MAKE UP TIME

18. The two dates that have been allocated are allocated on the basis that there is no dispute but that as compensatory time, the father should spend time with the children on each of the birthdays, although there now emerges a dispute in relation to the precise timing of such.  I note that providing the child to the father in accordance with the above order leaves the bulk of X’s birthday to be spent with the mother, noting the age of X and that she is not compulsorily in school attendance at this age.  It strikes an appropriate balance for X spending time with each of the parents.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       17 February 2021