Keightley and Keightley (No 3)

[2010] FamCA 1148

FAMILY COURT OF AUSTRALIA

KEIGHTLEY & KEIGHTLEY (NO. 3) [2010] FamCA 1148

FAMILY LAW – CONTRAVENTION – where the father alleges that the mother has contravened numerous orders of the Court – whether the mother understood the obligations imposed by the order – where the mother has established a reasonable excuse – where the father has not established on the balance of probabilities that the mother contravened other orders – application dismissed

Family Law Act 1975 (Cth) ss 65LB & 70NAE

APPLICANT: Mr Keightley

RESPONDENT: Ms Keightley

FILE NUMBER: ADC 4573 of 2008

DATE DELIVERED: 7 December 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 7 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. Count 4 of the father’s Contravention Application filed on 27 May 2010 is dismissed.

2. The father withdraws Count 5 of his Contravention Application filed on 27 May 2010 and is therefore dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4573 of 2008

MR KEIGHTLEY

Applicant

And

MS KEIGHTLEY

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. In relation to this current application for contravention (which is the father’s application alleging that the mother contravened the order of Simpson FM, which provided for the mother to attend a post-separation parenting program) the actual contravention application asserts that the mother has contravened the order of 3 August 2009 because the mother has not attended a post-separation parenting program as stated in paragraph 1 of the orders of 3 August 2009.

2. Paragraph 1 of the Federal Magistrate’s orders says:

   “The respondent mother attend a post-separation parenting program on such days and at such times as the organisation shall require, with the mother to obtain a report on satisfactory completion of the program.”

3. The order itself does not provide for a specific time within which the mother is to complete the parenting program, nor does it nominate the actual parenting program. 

4. The mother’s evidence, contained in her oral evidence and in her affidavit in response to the contravention applications filed on 15 November 2010, is that she made inquiries of Relationships Australia.  She then continued with the discussions between herself and Mr R of B Therapy.  It was not until she received the father’s contravention application that she understood he had not waived any insistence upon her attending a course.  Thereafter she attended a course run by Centacare called “Mum’s House/Dad’s House”. 

5. The mother has provided a certificate confirming her attendance at that course after it was pointed out that the annexure to her affidavit is a letter confirming the proposed attendance at the course on 16 September 2010.  The exhibit before the Court now is a certificate that she did in fact attend that course.

6. The letter refers to “Mum’s House/Dad’s House” being a post-separation parenting session, and continues to say:

   “The course is aimed to help separated parents understand the changes in their family.”

7. The definition of “post-separation parenting program” is in section 4 of the Family Law Act, which is a program:

   (a)that is designed to help people to resolve problems that adversely affect the carrying out of their parenting responsibilities (including by providing counselling services or by teaching techniques to resolve disputes); and

   (b)that consists of lectures, discussions (including group discussions) or other activities; and

   (c)that is provided by an organisation that meets the conditions set out in section 65LB of the Family Law Act.

8. The provisions of section 65LB set out particular requirements of the organisations concerned. The material before the Court is not sufficient to clearly define whether the course “Mum’s House/Dad’s House” is a program that would fall within the definition of a post-separation parenting program. However, the evidence is that the mother was of the view that it qualified as a course which fell within the requirements of the order made by Simpson FM.

9. The provisions of section 70NAE indicate that a reasonable excuse is taken to exist if the respondent contravened the order because, or substantially because she did not, at the time of the contravention, understand the obligations imposed by the order.

10. Bearing in mind the affidavit material and the oral evidence of the mother, and the acceptance by the father that the mother was probably made an error in relation to the nature of the course, it is not necessary to make a specific finding as to whether the course was or was not a post-separation parenting program on the limited amount of evidence before me.  I am satisfied that under the provisions of section 70NAE, the mother has established a reasonable excuse for contravening the order, notwithstanding that the steps taken to undertake the course did not occur until July and September of this year even though the order was made in August 2009.  The order was in general terms and lacked a specific timeframe.

11. I will adjourn further consideration of the orders to be made.  The provisions of the Family Law Act1975 (Cth) Part VII Division 13A provide that even on the dismissal of a contravention application the Court can make a further order. I do so on the basis that the father has indicated that he and his current wife are proposing to attend the Kids Are First program at Anglicare. The mother has indicated a willingness to attend the Kids Are First program at Anglicare or similar program, if it is possible for her to do so, bearing in mind her difficulties in relation to transport and available time.

12. I propose to adjourn consideration of the orders to be made until a time when the mother can obtain and present to the Court full particulars of the available courses, including the place and time of available courses run by Anglicare, known as the Kids Are First program.

13. I will consider later in the day an adjournment date for that to be undertaken.

14. This is the application of the father by way of contravention, as one of the contraventions claimed in the application filed by the father on 27 May 2010.  The details of the alleged contravention refer to paragraph 21 of the order of 7 December 2009, and allege that on some day in March 2010, at 9 am, the mother:

    …organised to discuss children’s living arrangements without informing the father first, or by jointly attending on a registered family dispute resolution provider.

15. The order of 7 December 2009, paragraph 21, reads:

    “That each party is restrained and an injunction is granted restraining them from discussing the children’s living arrangements with the children, and each party is ordered that if they form the view that such discussions with the children are required, then they will contact the other parent first and jointly attend on a registered family dispute resolution provider to assist in the engagement of the child regarding such parenting issues and living arrangements.”

16. I have the affidavit of the father, filed in support of the contravention, and the affidavit of the mother, filed in response.  Reference was being made to annexure B to the affidavit of the mother, filed on 22 November 2010, which is an email between the mother and Mr R of B Therapy.

17. The evidence indicates that the mother organised the appointment for the child A to attend upon Mr R on 1 March 2010.  At that meeting the father, mother and A were present when the living arrangements of the child were discussed.  I find that the evidence indicates that the mother did not specifically contact the other parent, namely the father, first, but that the father became aware of the appointment on 1 March by being informed of it by B Therapy before it took place.  I am satisfied that at that first appointment he was made aware of the second appointment which took place with the child, the mother, and the father.  Indeed the father admits that he attended both appointments.

18. The father’s complaint is that the mother attempted to organise a meeting with Mr R and the child without first informing him, and that at the meeting the living arrangements were discussed. 

19. In contravention proceedings the father is required to prove on the balance of probabilities all of the factors necessary to establish a contravention of the order.  I am satisfied that the mother arranged the appointment without prior notice to the father, and that at the first meeting living arrangements were discussed.  I am not, however, satisfied on the necessary balance of probabilities that the mother organised the appointment with a view to discussing living arrangements with A.  On the contrary, I am satisfied that her evidence, which was not significantly challenged, established that the appointment with Mr R was organised for the mother and A because of the mother’s concerns about the child’s emotional and psychological welfare, due to information of serious concern about the possibility of A harming himself.

20. The evidence is that at that meeting Mr R raised the question of living arrangements with the child.  Subsequently discussion took place concerning those living arrangements.  Those factors are not sufficient to satisfy the requirements to provide that the mother breached the order of 7 December 2009, paragraph 21.  I therefore dismiss the contravention application in that regard.

21. The next contraventions relate to paragraphs 1 and 13 of the order of 7 December 2009.  It is alleged that:

    “On 10 May 2010 at 16:24 pm, the mother continued to fail to exercise joint parental responsibility with regards to discussing the child [A’s] future high school.  The mother failed to consult the father before handing in the preferred high school choices for [A] to the school.”

22. That is a specific reference to paragraph 1 of the order of 7 December, which provides that the parties have joint equal shared parental responsibility of both children, and paragraph 13, which refers to each party being restrained and injunctions granted restraining either of them from enrolling either child at a school without first obtaining the written agreement in advance of the other party, or further order of this Court.

23. The father now indicates that he withdraws the contravention application.  It is therefore dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 7 December 2010.

Associate: 

Date:  22 December 2010