Kadar and Doumani

[2010] FamCA 862

FAMILY COURT OF AUSTRALIA

KADAR & DOUMANI [2010] FamCA 862

FAMILY LAW – CONTRAVENTION – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Kadar

RESPONDENT: Ms Doumani

FILE NUMBER: MLC 495 of 2009

DATE DELIVERED: 16 September 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 16 September 2010

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr Frajsman

SOLICITOR FOR THE RESPONDENT Whittlesea Community Legal Service

Orders

1. That the contravention application of the husband filed on 20 July 2009 and that on 27 October 2009 are both dismissed.

2. Upon the oral application of the husband, IT IS ORDERED that the child J spend time with the husband from Friday 17 September 2010 at 3.30pm until 6.00pm on Tuesday 21 September 2010.

3. That until further order, paragraph 4(a) of the orders made on 27 June 2007 resume as if unaffected by any orders on Friday 1 October 2010.

4. That all outstanding proceedings are otherwise adjourned to 10.00am on 12 November 2010 for a continuation of a first day before the judge.

5. That pursuant to Section 68L(2) the Family Law Act 1975 the child J born … June 1998 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.

6. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLC 495 of 2009

MR KADAR

Applicant

And

MS DOUMANI

Respondent

REASONS FOR JUDGMENT

1. Two contravention applications were filed by the father in the Federal Magistrates Court of Australia.  One was filed on 20 July 2009 and the second was filed on 27 October 2009.  For reasons, which are not at all clear to me, the proceedings were transferred to this court.  The file shows that at that time there were no other substantive proceedings on foot.  No-one has been able to give me an explanation as to why the case was transferred.  Subsequent to the transfer, applications initiating proceedings concerning the parenting orders were filed by each party, the wife as late as yesterday.

2. The whole process is rather unsatisfactory because the parties were, at best, confused about exactly what they were here for today.  Having regard to the nature of the contraventions and the seriousness with which the court treats them, I took the view that they had to be dealt with before the parenting issues were to be heard. 

3. Section 70NBA provides that upon completion of the contravention applications, Part VII of the Family Law Act 1975 (Cth) (“the Act”) is enlivened. It transpires, although the father did not put it in his affidavit, as he was required under the rules, there was a prior hearing concerning contraventions. That took place in February 2009.

4. The order of the Federal Magistrate in February 2009 was a consent order and they used the terminology “make up time”. There is no finding of fact by the court that breaches had occurred. There is no admission by the parties that breaches had occurred. It would be unsafe in those circumstances for me to find that there was a previous breach, which clearly is relevant to the matters set out in Division 13A of the Act. As such, I am dealing with the two applications before me today.

5. The difficulty with the second of those two applications, the one filed on 27 October 2009, is that a substantial number of the allegations, all of which related to telephone contact between father and child, preceded the hearing at which the consent order was made in February 2009.  In my view, it would be an abuse of process and totally inappropriate for those matters to proceed.  In fairness, the father, being unrepresented, said that he was simply told to do that because those matters had never been dealt with.  If that was the advice he was given, I disagree.  The parties cannot expect the court to simply deal with matters on an ad hoc basis.

6. I struck out all of the allegations that preceded the hearing in February 2009.  That left a small number of telephone contacts in dispute, together with two precise dates in 2009, in which the father says that he did not get to see his son.  The order that exists was made by this court on 27 June 2007.  It was an order of the court.  The order provides that the child, J, who is now 12 years of age, spend time with and communicate with his father on each alternate weekend from the conclusion of school on Friday until 5 o’clock on the Sunday and then by telephone on each Wednesday between 6.30 pm and 7 pm, with the father to initiate such calls to the child and the mother to do all things necessary to facilitate the child receiving those calls.

7. The first problem with the order is that it does not have a starting date.  Thus, I have a dispute between the parties in which the father says that the two weekends to which he refers were his weekends and the respondent mother, Ms Doumani, says that they were not his weekends.  Without anybody providing me with some evidence as to what the calendar showed and whether there had been any alteration to the schedule, it is impossible for me to work out which weekend was the relevant weekend for the purpose of the order. 

8. It is quite clear from the orders that the telephone contact was to take place every Wednesday night so there is no dispute there.

9. Dealing with the telephone contacts first:  the father says in his affidavit that he made the calls at the relevant time.  Attached to his affidavit is a schedule in which he set out each of the relevant days alleged giving a response as to what happened.  Some of those show “no answer”, other times they show that the line was “busy”.  Other occasions are reported as being a “female woman”, replying that the child was asleep or a male child replied that the child was asleep or not home.  The whole of the evidence is vague and difficult to follow, but the father was not cross-examined about those particular dates, and more particularly about what happened when he rang.

10. What he was cross-examined about was that he rang at various times, including outside of those hours.  He denied all of that.  The mother’s evidence was that she had been diligent about making sure that the child was available.  She said that her diligence arose out of the fact that she had not wanted the matter to come back to court because that was the father’s want.  Some of that makes sense, having regard to the fact that only days before the first allegation, the parties were in court for the very same sorts of problems associated with the contact orders.

11. The mother says that she had proposed to the father that to avoid problems about having contact with his son, he provide a pre-paid mobile telephone but the father denied that that was ever put to him. One would wonder, if there were no problems, why one would make a suggestion that a mobile phone might assist. The difficulty I have is that the evidence of the mother was not challenged by the father. He said that he was not a lawyer and didn’t know how to cross-examine, but I can only take the evidence as I find it. Division 13A of the Act requires me to determine the matter on the balance of probabilities.

12. In this case, doing the best I can, I have to confess I have no idea what happened during those particular periods of time.  I have very strident evidence from the mother in which she says that not only did the father get to speak to his son when it was necessary for him to do so under the orders, but he also spoke to his son at times outside of that.  The whole situation is completely unsatisfactory, but I am not prepared to make findings against the mother that she breached the orders in respect of those matters.  On that basis, those allegations will be dismissed.

13. I turn then to the second part of the complaint, which relates to two specific periods of contact.  The father filed an affidavit in respect of the July 2009 application.  Only two paragraphs of that affidavit are relevant.  In respect of neither was he challenged in cross-examination.  In respect of the first, he said that on 1 May 2009 he went to collect his son at school, according to the orders, at 3.30 pm, but he was told that the wife took the child out of school at 1.30 pm.  He said he then called her and she said to him that he was not going to have the child that day.  Whilst the father was not cross-examined about that, neither was the mother.

14. Her evidence is that on that particular day, it was not the weekend for the father to have his son.  She said that he had had the child the weekend before.  The mother’s evidence was that there was a trial relating to the child seeing his father more than the period of time under the order, an assertion that the father denied.  It is, therefore, very difficult to follow exactly who is telling the truth and exactly what happened on 1 May 2009.  I take into account also that 18 months has now passed by and memories, no doubt, have dimmed.  On the basis of the evidence as it stands, I could not be satisfied on the balance of probabilities that 1 May 2009 was even a day under the order to which the father was entitled to see his son, that allegation must be dismissed.

15. 10 July 2009 is the second allegation.  The father’s evidence in the affidavit was not challenged.  He said that this was during the school-holiday period.  In respect of a calendar that I had in front of me and which I raised with the parties, although the mother was somewhat vague about it, it seems quite clear that it was the holiday period.  In fact, 10 July 2009 was the last weekend of the holidays.  The father says that he attended the wife’s premises at 3.30 pm, as he was required to do under the orders, rather than the school and he tooted the horn, as he “normally” did, and his son was to come to the car.

16. How he would normally do that is unclear because under the orders he normally picked up his son from the school.  He said his son did not come out of the house, so he tooted again and the child did not come.  He said he then telephoned his former wife and she said that the child was inside the house, but she was not with him and he would come out shortly.  The father said he waited for 10 minutes and the child did not come out, so he left without seeing his son.  The mother’s evidence, which was equally as vague as that, was that the father had had the child the weekend before.

17. However, all of that was thrown into complete confusion when there was evidence led by the mother about the fact that she was having problems with the father resulting in an intervention order.  Both parties produced intervention order documents that were filed in the Magistrates Court around this same period of time.  What is interesting is that in the father’s complaint to the Magistrates Court, he said that on 11 July 2009, the mother attended a swimming pool and took the child away, contrary to his own wishes.  The only conclusion one can draw is that the child was with the father that particular weekend.

18. The mother, when seeing all of that, seemed to recall something, but I declined to allow her to give further evidence. The father certainly did not cross‑examine the mother about any of the events of 10 July and there is nothing in his affidavit to indicate that he spent any time with his son that weekend.  The whole situation is entirely unsatisfactory.  It is not my task to try and make the parties’ cases for them.  I have to determine the matter on the balance of probabilities.

19. In this case, on that evidence, I could not possibly find that the events, as described by the father, occurred because on his own statement to the Magistrates Court, which he said from the bar table was a typing error, would not indicate that he did not go without seeing his son at all that weekend.  On the basis of the evidence presented to me, I could not be satisfied that a breach has occurred.  On that basis, none of the breaches alleged in either of the two applications is proved and I propose to dismiss them all.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  28 September 2010