KENT & SHAW - [2013] FamCA 38

FAMILY COURT OF AUSTRALIA

KENT & SHAW

[2013] FamCA 38

FAMILY LAW - CHILDREN – contravention – where the father alleges that the mother has contravened an order requiring the mother to provide the father with notice of the child’s progress in school – where the order authorises the father to obtain this information from the child’s school – contravention not established.

FAMILY LAW - CHILDREN – contravention – where the father alleges that the mother has contravened orders requiring the mother and the child to undergo therapy – where the primary order is unclear about what is required of the mother – where the matter was adjourned to allow for further submissions from the mother.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Kent

RESPONDENT:

Ms Shaw

FILE NUMBER:

ADC

4329

2007

DATE DELIVERED:

4 February 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

4 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

The alleged contravention in so far as it relates to the breach of paragraph 15 of the Orders made on 15 July 2010 is dismissed on the basis that there is no case to answer.
Judgment is reserved on the remaining alleged contraventions in paragraphs 4 and 5 of the Orders made on 15 July 2010.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Shaw 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 ADELAIDE

FILE NUMBER: ADC 4329 of 2007

Mr Kent

Applicant

And

Ms Shaw

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

In relation to the case to answer the application for contravention filed on 13/7/12 appears on the face of it to have been filed by the father when he was represented by appropriately qualified legal representatives. Paragraph 6 says:
State the paragraph number of the attached order, … that you allege has been contravened.

In that section the father does not simply state the paragraph number of the attached order but says as follows:
The mother failed to engage in therapy as ordered parag 4 [a] [b] [c] and parag 5 of the order Justice Strickland 15-7-10 thereby not enabling the father to have contact with his daughter as set out in parag 9 and 10 of the said order and be advised of school progress as set out in parag 15 of the said order.
In paragraph 7 (which requires the party to “state precisely what the respondent did or did not do which you allege amounts to a contravention including the date, time and place if applicable”) the date is referred to “/about dec 2011/”. There is nothing for “Time” and the place “Adelaide”.
The statement of the alleged contravention is:
The mother as can be seen from report of [Ms B] dated the 22 May 2012 and attached to my affidavit filed with this application terminated the therapy ordered by Justice Strickland as set out above therby (sic) preventing me from having time with my daughter.
Attached to the application for the contravention is the order of 15 July 2010. In relation to the question of a breach of paragraph 15 of that order, paragraph 15 states:
(15) That the mother:
(a)Notify the father, and keep the father notified, of the schools which the said child attends;
(b)Authorise all such schools as the said child attends to release direct to the father copies of the said child’s school reports;
PROVIDED THAT the father be restrained, and an injunction is hereby granted restraining him, from attending at any school which the said child attends.
The affidavit of the father filed in support of the contravention application only deals with the question of the school reports and paragraph 15 very briefly. It says in paragraph 6:
6.I have been in contact with the Respondents Lawyers Dixon Gallasch and they have responded but not contacted me since. Attached hereto and marked with letter “APK-4” are copy of my letter dated the 30-3-12 and their response dated the 19-4-12. A copy of this application and affidavit is intended to be served on the representative for child …
One of the annexures is APK-4. There is a hand-written letter from the father to the lawyers wherein it is stated:
It is also ordered for the mother to supply me with my Daughter’s medical and school reports. I request all school photo’s (sic) report cards and medical reports immediately. Could you please inform me within 7 days of the mothers (sic) intentions with school and medical report and school photo’s (sic). If these requests are not fullfilled (sic) I will institute Family Court Proceedings.
In response to that letter the solicitors for the mother replied that they had not acted for the mother since 2010. They said in the second to last paragraph:
We point out that there is nothing in the orders which requires [the mother] to supply you with your daughter’s medical and school reports. Rather, the orders authorised you to obtain that information from the school and doctors.
In the affidavit and annexures there is nothing in relation to the mother’s non-compliance with the paragraph requiring her to notify the father and keep him notified of the schools which the child attends. The contravention appears to relate to an assumption that the mother was required to supply the school reports, rather than the father be authorised to obtain the school reports from the school.
As I indicated there is nothing in the contravention application or the affidavit in support which indicates any evidence upon which the contravention of paragraph 15 (a) could be based.
I therefore dismiss that alleged contravention on the basis that there is no case to answer.
In relation to paragraphs 4(a), (b), (c) and (5) the Court has put to the father a request for him to identify the parts of the Court Order, either in 4(a), (b), (c) or (5) which requires that the mother continue the therapy for any particular time. The orders merely direct that the parties engage in the therapy. Paragraph 4(a) sets out the purpose of the mother’s therapy, 4(b) sets out the purpose of the child’s therapy and 4(c) sets out the purpose of the father’s therapy. The orders do not indicate how many sessions are required.
Paragraph (5) requires the child to commence therapy after the mother has had two sessions of therapy. It appears from the evidence before me that the mother undertook therapy and the child commenced therapy. There is limited, in fact, no direction in the Court order itself saying how many sessions the mother is required to attend, save and except it is indicated by paragraphs 9 and following, that the child should attend at least four sessions of therapy or “such other number of sessions as the said child’s therapist deems appropriate” and the said therapist be at liberty to liaise with any separate therapist with the father in determining this. Then it provides for the child to be introduced to the father, either under the supervision of the therapist or a Contact Centre.
The difficulty therefore is that, whilst the idea behind the orders can be ascertained from the Court Orders themselves, it is not specific in relation to requiring the certain steps to be taken by the mother.
Therefore it might have been possible to also dismiss the contravention in so far as paragraphs 4(a), (b), (c) and (5) are concerned on the basis that the orders do not establish the required amount of therapy. The mother is saying from the bar table, albeit unrepresented, that she wants there to be evidence heard in relation to her answer to the contravention.
As is clear from the Family Law Act there are various options given to the Court should the contravention be found to have been proved, or if the contravention is found to have been a contravention with reasonable excuse or without reasonable excuse. There are also options the Court can exercise if the contravention application is dismissed in its entirety.
I therefore consider that in order to determine what final orders might be made on the contravention application that it would be appropriate to hear the evidence of the mother in response to the allegations put by the father. I will therefore not dismiss the contravention application in relation to paragraphs 4 and 5, but will allow the evidence of the mother to be given before finally determining the outstanding contravention applications.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 February 2013.

Associate:

Date: 13 February 2013