Khalili and Chatha (No 2)

[2015] FamCA 664

FAMILY COURT OF AUSTRALIA

KHALILI & CHATHA (NO 2) [2015] FamCA 664

FAMILY LAW – ORDERS – Contravention – Where interim parenting orders in place – Where the father alleges that the mother has contravened the interim orders on six occasions – Where five of the alleged contraventions found proven – Penalty

Family Law Act 1975 (Cth)

APPLICANT: Mr Khalili

RESPONDENT: Ms Chatha

INDEPENDENT CHILDREN’S LAWYER: Ms Truong

FILE NUMBER: PAC 991 of 2010

DATE DELIVERED: 30 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 July 2015

REPRESENTATION

APPLICANT FATHER: In person

RESPONDENT MOTHER In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Truong of Legal Aid NSW

Orders

1. The father shall have make-up time with the children, Y, B and H, in respect of the time he missed due to the contraventions.

2. The father’s time with the children pursuant to the Court Orders of 9 October 2014 shall be extended for one (1) extra hour for 11 occasions in relation to H and 15 occasions in relation to Y and B and for 30 minutes on the twelfth occasion for H and on the sixteenth occasion for B and Y.

3. The make-up time referred to in Orders 1 and 2 shall commence on 15 August 2015.

4. Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalili & Chatha has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act No 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 991  of 2010

Mr Khalili

Applicant

And

Ms Chatha

Respondent

REASONS FOR JUDGMENT

Introduction

1. Having found the contraventions proved and having found that there is no reasonable excuse I now have to consider the matter of penalty.

2. I take into account that the matters can be dealt with as either more serious or less serious contraventions and in my view this is an appropriate matter to deal with under the less serious contravention regime, particularly as they are the mother’s first contraventions.  Although the contraventions occurred on five different occasions they have all been dealt with on one occasion and in my view it is appropriate to deal with them under that division.

3. The mother has already participated in numerous post-parenting programs and there seems to be no further utility in terms of her receiving some benefit that will assist her to comply with the orders.

4. The purpose of penalty is not to punish a person or to deter others but to enforce the orders that are already in place.

5. It gives me some hope in terms of the orders (and bearing in mind these are orders for the benefit of the children to have time with the father) that the girls have in fact gone with their father in accordance with the orders on one occasion but I have no doubt that more can be done.  The girls are nine years old and it is simply not up to them, and they should not be empowered in such a way that what they decide to do dictates what happens, particularly where those decisions happen to align with what one parent wants in the circumstances and believes is in the best interests of the children.

6. Orders have been made that it is in the best interest of these children to spend time with their father in accordance with the regime that is in place and they are expected to be complied with.

7. Compensatory time seems the most appropriate order and that will be made by ordering that the children spend more time with their father on each weekend than is currently the case.

8. I understand that the father will not immediately be able to make such arrangements and I will permit this to be stood down for him to come up with a proposal about how that compensatory time is to be spread out.  In my view, the most appropriate way in which that should be done is to add an additional hour to the current regime of time that is in place.

9. If the parties look at the orders and the Reasons for Judgment[1] they will see that the father spent no time with the girls on 15 November 2014 and there was no reasonable excuse.  So there are four hours of compensation for each of the girls for that instance.  You will see from my Reasons for Judgment that there was a reasonable excuse with respect to H on 15 November 2014 because there was a medical certificate.

   [1]Khalili & Chatha [2015] FamCA 621

10. On 13 December 2014, Y and H only spent 35 minutes with their father and B spent no time and I did not find that there was a reasonable excuse, so there is time for all of the children.  It would be artificial to say four hours for B and three and half hours for the others, that should be three and half hours additionally for all of the children for that day.

11. On 24 January 2015, the father did in fact spend time with H.  It was not time in accordance with the orders in that it occurred at the Centre rather than offsite but it is not a matter where compensatory time should be ordered.  There were four hours where the children, B and Y did not spend time with their father so there are four hours for them.

12. On 7 February 2015, none of the children spent time with their father and there was no reasonable excuse so that is four hours for each of them and the same on 21 February 2015.

13. So if there is an additional one hour on each occasion that will take a matter of some months for that additional compensatory time to be utilised.  I need to make an order but I think it needs to be quite clear that it is understood by the parties.  If I make an order that there be an additional hour until it has all been exhausted, I think it will be fraught with difficulties, so the parties will need to work out how that is actually going to work over the next few months.

1. Ms Truong, the Independent Children’s Lawyer, should not have to be involved in this sort of thing and it is not an appropriate use of her resources but because the communication of the parties is so poor the Court would be greatly assisted by her help.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 July 2015.

Associate: 

Date:  14 August 2015