KHALILI & CHATHA

[2017] FamCA 1076

FAMILY COURT OF AUSTRALIA

KHALILI & CHATHA [2017] FamCA 1076

FAMILY LAW – ORDERS – Contravention – Where final parenting orders were made in April 2016 that the children live with the mother and spend time with the father – Where the father alleges the mother has failed to facilitate his time with the children on six occasions – Where three of the six contraventions are established.    

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NBA

Khalili & Chatha [2016] FamCA 230

APPLICANT: Mr Khalili

RESPONDENT: Ms Chatha

FILE NUMBER: PAC 991 of 2010

DATE DELIVERED: 21 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 18 October 2017

REPRESENTATION

SELF REPRESENTED APPLICANT: In person

SELF REPRESENTED RESPONDENT: In person

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 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (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. This judgement is concerned with an application filed by Mr Khalili (“the father”) which alleges that his former wife Ms Chatha (“the mother”) contravened orders made by this court on 4 April 2016 (“the final parenting orders”) on six occasions.

2. This is the third contravention application brought by the father in these proceedings and the second since final parenting orders were made.  

3. The allegations of contravention relate to circumstances in which the mother has failed to facilitate the parties’ three youngest children spending time with the father at various times over the course of 2016 including over the 2016/2017 Christmas school holidays.

Background

1. This matter has an extensive history of court proceedings as the mother first commenced proceedings in the Federal Circuit Court in April 2012 in response to orders made by Suburb V Local Court in January 2012 on application of the father to place the children on the Airport Watch List.

2. Subsequently the proceedings were transferred to this court and following a defended hearing Carew J delivered a judgment and made the final parenting orders on 4 April 2016.[1]  That judgment sets out the relevant background to these proceedings at paragraphs [4] to [7]:

   6.4.        The parties were married in 1994 and divorced on 13 May 2010.  The four children, who are the subject of these proceedings, are:  S, born in 2000 and now aged 15 years and seven months, B, born in 2006 now nearly 10 years, Y, born in 2006 also nearly 10 years, and H, born in 2010 nearly six.

   7.5.        There is some dispute between the parties as to the actual date of separation, but nothing turns on that for the purposes of this case.  The mother and children lived in the Middle East, from late 2008 until January 2012 where the mother worked as a public servant.  During that time, she and the children returned to Australia for a few weeks in 2009 to attend her graduation ceremony and for several months in 2010 in the period leading up to and following the birth of the parties’ youngest child, H, before returning to the Middle East with the children in or about September 2010.  The father joined the mother and children in the Middle East on a number of short occasions and for an extended period of about seven months in or about 2010/2011 and, on each occasion, stayed with the mother and children.  He did not work during these times.  The father remained in Australia for the majority of the period the wife and children were in the Middle East.

   8.6.        Upon the mother’s return to Australia in January 2012, it is common ground that the parties resided in the same home on occasions, the last occasion being in November 2012 when the mother and children left the home they had been sharing with the father. 

   7.        This case has a long history with proceedings first commencing in 2012.  The catalyst for the commencement of proceedings was the mother’s wish to return to the Middle East for work, with the children, and the father’s opposition to that course.  The proceedings were transferred from the Federal Circuit Court to the Family Court of Australia on 18 February 2014.  Various orders have been made since that time and the mother was found to have contravened a parenting order in July 2015.

   [1]Khalili & Chatha [2016] FamCA 230.

3. In the April 2016 judgment Carew J made a number of orders which are relevantly extracted as follows:

   Parental responsibility

   (1)The mother shall have sole parental responsibility in respect of all major long term issues as that expression is defined in the Family Law Act 1975, as amended (the Act) in respect of the children: S, born … 2000; B …, born … 2006, Y born … 2006 and H, born 12 April 2010, save that the mother shall prior to making the sole decision about any such issue:

   (a) – (d) [which are not relevant for the purposes of this judgment]

   Live with

   (2)      The children shall live with the mother. 

   Time with the father

   (3)The father shall spend time with the children at all reasonable times as may be agreed between the parties in writing but, failing agreement not less than:

   (a)for S at all such reasonable times as S and the father may arrange;

   (b)for the three youngest children:

   (i)each alternate weekend from 5.30 pm Friday (subject to paragraph 10 below) until commencement of school on Monday commencing Friday, 8 April 2016,

   (ii)from 9 am to 5 pm on Father’s Day each year (if the children are not otherwise spending time with the father),

   (iii)for the first week of the June/July school holidays commencing in 2016 and in each year thereafter,

   (iv)for the first week of the September/October school holidays commencing in 2016 and in each year thereafter,

   (v)for the first two weeks of the December/January school holidays in 2016,

   (vi)thereafter for the first half of the December/January school holidays in even numbered years and the second half in odd numbered years.

   …

   Changeovers during school term

   (7)Until S completes his schooling, changeovers other than on Monday mornings, are to occur at such place as may be agreed between the parties in writing.  But, failing agreement, at the [X Contact Service at C Street, Suburb P], in the State of New South Wales and if that service is unavailable, then at such other contact service as is available and closest to the [X] Contact Centre.

   (8)The father is to deliver the children to their school at the conclusion of his time on Monday morning by dropping the children off in a designated car park area at the school in time for the commencement of the school day (but he shall not otherwise enter the school).

   (9)Until S completes his schooling, the mother is to ensure that the children have appropriate school requirements including but not limited to uniform, school shoes and homework at changeover on Fridays.  The father shall ensure that any items provided by the mother are returned with the children on Mondays.

   (10)Upon S completing his schooling, changeovers on Friday shall occur at the completion of the school day at their school. 

   Changeover during school holidays and other times when the school is not open.

   (11)If the father is spending time with the children during the first half of the school holidays, then until S completes his schooling, changeover at the commencement of his time shall occur at 5.30 pm on the last day of term at the contact centre, and at the conclusion of his time at 10 am in the middle day of the holidays at the contact centre.

   (12)Once S completes his schooling, if the father is spending time with the children during the first half of the holidays then changeover at the commencement of his time shall occur at the conclusion of the school day on the last day of term from school and at the conclusion of his time at 10 am at the contact centre.

   (13)If the father is spending time with the children during the second half of the school holidays, then changeover at the commencement of his time shall occur at the contact centre at 10 am, and at the conclusion of the time the father shall deliver the children to their school in time for the commencement of the school day.

   (14)At any other time when the father is to spend time with the children and the contact centre is not open, changeover shall occur at the McDonald’s Family Restaurant closest to the contact centre, unless an alternative venue is agreed in writing by the parties.

   …

4. On 6 May 2016 the father filed a Contravention Application alleging the mother had failed to comply with the orders made by Carew J one month earlier.

5. That application was heard and dismissed by Foster J on 13 October 2016[2] and the parties were ordered to participate in the Unifam Post-Orders Intervention Pilot program.

   [2]Khalili & Chatha (No. 2) [2016] FamCA 914.

6. On 15 March 2017 the father filed the Contravention Application under consideration alleging a number of contraventions by the mother of the orders of 4 April 2016.

7. On 12 April 2017 the father was ordered to file an amended contravention application setting out no greater than six alleged contraventions and an affidavit in support of his application.  The father filed these documents on 15 May 2017.

8. For various reason associated with service of the father’s application upon the mother the matter was not listed for hearing until 10 August 2017.

9. On 10 August 2017 pursuant to section 70NBA of the Family Law Act 1975 (Cth) (“the Act”) some of the parenting orders of 4 April 2016 were suspended until 14 August 2017 and other orders made in lieu as follows:

   (1)Order 3 of the Parenting Orders of 4 April 2016 is suspended from today until Monday 14 August 2017 and the following orders are made in lieu:

   (a)The mother is to deliver [Y] to Child Dispute Services at 2pm today and following delivery of the child is to immediately leave the precincts of the court.

   (b)The mother is to bring suitable night attire and school uniform for [Y] and sufficient clothing for [B, Y and H] to spend time with their father until Monday morning 14 August 2017.

   (c)The children, [B, Y and H] are to spend time with their father from 2pm today in the case of [Y] and after school in the case of [B and H] until before school Monday 14 August 2017.

   (d)The father is to collect [Y] from Child Dispute Services at 2pm today and collect [B] and [H] directly from school today.

   (e)The mother is restrained from attending the children’s school [D School] today 10 August 2017 and tomorrow 11 August 2017. 

   (2)Order 3 of the Parenting Orders of 4 April 2016 is varied pending further order by deleting the words “at all reasonable times as may be agreed between the parties in writing but failing agreement not less than”.

   (3)Order 3 of the Parenting Orders of 4 April 2016 with respect to the father’s time with the children is revived from 4pm Monday 14 August 2017 noting that the father is next to spend weekend time with the children from Friday afternoon 18 August 2017 and is varied pending further order so that the alternate weekend time in Order 3.b) i) commences at the end of the school day rather than at 5.30pm on a Friday.

   (4)Order 7 of the Parenting Orders of 4 April 2016 is suspended pending further order and in lieu changeover during school term on a Friday afternoon is to occur by the father collecting the children from their school at the end of the school day and the mother is restrained from being in the children’s presence at the time of changeover.

   (5)The matter is adjourned to Wednesday 20 September 2017 at 9.30am.

   (6)The children are to attend school each school day unless medically unfit to attend in which case the parent responsible for the child is to provide a medical certificate to the other parent. If a child is medically unfit to attend on a Friday when changeover is to occur the parents are to meet at 4.30pm at McDonalds [O Town] for the purposes of changeover.

10. The Court was later informed that after being presented to Child Dispute Services at the Court at 2pm on 10 August 2017 the child Y had run away from her father. Subsequently the father only spent time with the child H from 10 to 14 August 2017.

11. When the matter was next before the court on 20 September 2017 the variation to the final orders of 4 April 2016 contained in Order (2) of the orders of 10 August 2017 was discharged and the father’s contravention application was listed for hearing on 18 October 2017.

12. On 18 October 2017 both parties appeared before the court unrepresented. The father was cross-examined by the mother on his affidavit. Following submissions I reserved judgment.      

13. The father raises six allegations of contravention of the final parenting orders. All six of the allegations relate to the mother failing to facilitate the children’s time with the father without reasonable excuse by allegedly failing to deliver them to the X Contact Centre (“the contact centre”) being the changeover location specified in the orders, or otherwise as required by the orders.  Each allegation will be considered in turn later in these Reasons.

The Law

1. Contraventions are dealt with under Part VII, Division 13A of the Act.

2. Section 70NAC defines the meaning of “contravened” an order affecting children if, and only if:

   (a) where the person is bound by the order – he or she has:

   (i) intentionally failed to comply with the order; or

   (ii) made no reasonable attempt to comply with the order; or

   (b) otherwise – he or she has:

   (i) intentionally prevented compliance with the order by a person who is bound by it; or

   (ii) aided or abetted a contravention of the order by a person who is bound by it.

3. Section 70NAE defines the meaning of “reasonable excuse” for “contravening” an order to which I will return if I find that prima facie the order has been contravened.

4. Section 70NAF deals with the standard of proof for contravention of parenting orders under this division. Subsection (1) provides that subject to subsection (3) of this section the requisite standard of proof to be applied is the balance of probabilities.  Section 70NAF(3) deals with matters that require the court to be satisfied beyond reasonable doubt in certain circumstances none of which apply in this matter. 

The contraventions alleged

19 August 2016

1. The father alleges that the mother contravened order (3)(b)(i) of the final parenting orders as the three younger children did not spend time with him as set out in that order.

2. There does not appear to be a dispute between the parties that the father was to spend time with the three younger children commencing at 5.30pm on 19 August 2016 (until the commencement of school the following Monday), pursuant to the orders. 

3. According to the affidavit of 15 May 2017 relied upon by the father he attended the contact centre at 5.25pm on that day and waited for the children.  He deposes to all three of the younger children being brought to the contact centre and that each of the children told him effectively that for various reasons they would not be going with him on that day.  The father says he was disappointed to hear this from the children but was able to negotiate with a staff member at the centre for the children to see him the following day instead and he left the centre without the children.  The father’s complaint appears to be that the mother did not encourage the children to go with him.

4. The mother is obliged pursuant to order (7) of the final orders to effect changeover at “such place as may be agreed between the parties in writing” and failing agreement at the X Contact Service.  There is no evidence of the parties having agreed to an alternate changeover location in which case changeover is to occur at the X Contact Service.

5. As there is not dispute that the mother brought the children as required to the contact centre I cannot be satisfied at a prima face level that she intentionally failed to comply with the order.  The question then arises whether she made a reasonable attempt to comply with the order. 

6. Although the father appears to suggest that the mother’s failure to encourage the children to go with him amounts to a breach of the order, there is no evidence of her failure to encourage the children to do so.  Rather, the father seems to have simply accepted the children’s statements that they would prefer not to spend time with him on this occasion and only one of the children clearly stated that she did not want to go with him. 

7. In these circumstances it appears to have been the father’s own decision to negotiate some alternate time with the children through the staff at the centre. Accordingly, there is no evidence from which I could find that the mother contravened the order as defined in the Act.

2 September 2016

1. The father alleges that the mother contravened the primary orders at 5.30pm on 2 September 2016 at the contact centre, which was also a Friday.  Again it does not appear to be matter in dispute that the father was due to spend time with the children on this weekend. 

2. According to the father’s affidavit he received an email from the mother in which she informed him that there had been a change in arrangements.  However, it came to light under cross-examination that staff at the contact centre had sent a reminder via email to the mother in the morning of 2 September about the arrangements for her to attend the centre with the children at 5.15pm that day for a 5.30pm changeover.  The mother responded to the staff member by email to the effect that she would “like to reschedule it to next Friday” “due to car issues in this sudden wet weather” and also informed the staff member that the children would see their father on the upcoming Sunday (4 September) from 12 to 5pm. 

3. Records of the contact service attached to the father’s affidavit indicate that staff telephoned at 11.45am and informed him that the children’s time with him had been cancelled by the mother and that the service being provided would now be “reviewed”.  The records also indicate that the father was advised that the contact service had not postponed the changeover and that the mother would be advised accordingly.  The contact service staff then sent an email to the mother informing her that they had informed the father of the cancellation and that the contact service was not in a position to reschedule the change as she had requested.  She was also informed that the contact service would now be reviewing the family’s file and “your file will be placed on hold”.

4. The father did not attend at the contact centre at 5.30pm on 2 September as he appears to have accepted that the mother cancelled the changeover. It can be inferred that the mother also did not attend as the contact centre staff considered that the mother had cancelled the arrangements for changeover. The contact centre clearly did not accept that the mother could “reschedule” or postpone the changeover and both parties were informed that the changeover was cancelled rather than postponed.

5. The unilateral cancellation of the changeover on Friday afternoon and decision that the children would see their father for five hours on the following Sunday in lieu was imposed upon the father by the mother and there is no evidence that the parties reached agreement as to this alternate arrangement. In these circumstances I am satisfied that the mother made no reasonable attempt to comply with the orders requiring her to effect changeover at the contact centre at 5.30pm on 2 September 2016.  

8 October 2016

1. The father next alleges that the mother contravened the order with respect to his time with the children at 10am on 8 October 2016 (which is a Saturday) at the contact centre. 

2. None of the primary orders cast a clear obligation on the mother to effect handover of the children on a Saturday at the contact centre.  However, the father appears to rely upon the general provision within the orders that he shall spend time with the children “at all reasonable times that may be agreed between the parties in writing” (Order 3) and that “changeovers other than on Monday mornings are to occur at such place as may be agreed between the parties in writing” (Order 7).  As I understand his case as the contact service provided he and the mother with a schedule concerning changeover and that schedule referred to changeover occurring on 8 October 2016 at 10am he asks the court to find that the parties had agreed in writing to effect changeover for his weekend time at that time and location. 

3. The schedule of changeovers is set out in a letter dated 14 September 2016 annexed to the father’s affidavit.  In that letter the acting co-ordinator of the contact service confirms the approval of changeovers at the contact service fortnightly on Saturday mornings at 10am on various dates including 8 October 2016. 

4. Although there is no evidence that this letter was also sent to the mother and that the contact service was in effect facilitating a change in arrangements that the parties themselves had agreed to, the father contends that such an agreement had been reached and deposes to attending the contact service for changeover on that date and waiting for thirty minutes for the children who were not delivered. 

5. Changeover notes from the contact service in relation to 8 October 2016 authored by an acting senior supervisor confirm the father’s attendance and that the children were not delivered.  The notes also record that the staff member at the contact service telephoned the mother at 10.20am to check her whereabouts but the mother did not answer and the staff member left a message.  The notes record that the mother called the centre at 10.50am (the father having waited until 10.30am) and informed the worker that two of the children “don’t want go” to the father and the mother doesn’t want to waste anyone’s time and the centre’s time as the children don’t want to go.

6. In my view it can be inferred from the documents from the contact centre that the parties reached agreement that the father would spend time with the children for the weekend commencing on Saturday 8 October 2016 and that changeover would occur at the contact service at 10.00am.  I am satisfied that the mother intentionally failed to comply with that order and did not bring the children to the contact centre to effect changeover. 

22 October 2016

1. The father contends that the mother contravened an order that she effect handover of the children for his weekend time with them on 22 October 2016 which had been a date agreed between the parties pursuant to Order 3 and was to occur at the contact service.  The letter from the service approving of the changeovers to occur at this time and place also specified this date. 

2. The father deposes to attending at the contact centre in accordance with these arrangements and that he waited for thirty minutes before leaving.  The mother did not arrive and present the children so that changeover could be effected and had not made prior contact to vary this arrangement with him or, so far as he was aware to any of the staff at the contact centre. 

3. The father annexes to his affidavit an email exchange between himself and the mother in relation to this contact event.  He sent an email to the mother at 12.11pm on Friday 21 October confirming the arrangements for changeover at the contact service the following day but did not receive an email in reply until 9.38am the following day at which stage as I understand it, he was on his way to collect the children.  In that email the mother informs the father that:

   the children are crying hysterically cause (sic) they don’t want to go to the centre at all. 

   She then goes on to say:

   they have had breakfast and are dressed but because of their distress I suggest that tomorrow 23/10/16 we changeover at McDonalds […] and hopefully they will go with the father from 11 to 4.  I thank you for your time and we will see you in a fortnight.

4. The father deposes to attending McDonalds the following day at 10am and the mother attending with the three children at 11am.  He says that one of the children told him he wanted to spend the day with his mother and another told him that the mother had “made plans”.  He deposes to leaving the children with their mother and going home. 

5. Although the father gives evidence of the events of 23 October 2016, on the basis of the foregoing I am satisfied that the mother made no reasonable attempt to comply with the order to effect changeover of the children on 22 October 2016 in accordance with the previous agreement of the parties.  Although she claims that at about twenty minutes prior to changeover the children were crying hysterically and distressed it is clear that she simply accepts the children’s desire not to attend at changeover in the context of suggesting an alternative.  This cannot be seen as an proposal to the father with a view to reaching agreement in accordance with the orders but is clearly a proposal imposed on the father and then immediately acted upon whether he agreed to it or not.

6. Accordingly, I am satisfied that the mother made no reasonable attempt to comply with the order that she effect changeover for the children as agreed to by the parties to occur at 10.00am on 22 October 2016. 

23 October 2016

1. The father next alleges that the mother failed to comply with the orders to effect changeover for the children’s time with him at 10am on 23 October 2016. 

2. The mother could only be required to be in breach of an obligation to make the children available at 10am on 23 October 2016 if pursuant to order 3 the parties had agreed in writing for the father’s weekend time with the children to commence at this time.  The contention that the parties had agreed for the father to spend time with the children on 23 October 2016 in lieu of time commencing on 22 October 2016 is at odds with the father’s contention with respect to the contravention on 22 October which for the reasons given I have found established. 

3. I am not satisfied that the parties did reach agreement for this variation to the father’s time and accordingly do not find that the mother contravened the final parenting order on 23 October 2016.

15 December 2016 – Commencement of the December/January 2016 holidays

1. In his contravention application the father alleged a contravention during the “first two weeks” of the December/January school holidays 2016.  At the hearing of the contravention the father contended that the date of the contravention was 15 December 2016 and I permitted him to orally amend his application in this regard.

2. Although the father’s affidavit and oral evidence in relation to this matter was difficult to follow partly as the affidavit is not in chronological order, he contended as I understand it that the parties had reached an agreement in relation to his time with the children during this school holiday period to commence on 15 December 2016.  Alternatively the father seems to suggest that if the court does not find that such an agreement had been reached then in default he was to spend to time with the children in “the first two weeks of the December/January school holidays in 2016” pursuant to order 3(b)(v) of the final parenting orders.

3. Order 11 of the final parenting orders provides that if the father is spending time with the children during the first half of the holidays then changeover at the commencement of the time shall occur at 5.30pm on the last day of term at the contact centre.

4. Although there is not clear evidence concerning this matter the mother does not appear to dispute that the last day of the school term in 2016 was 15 December.  There does also not appear to be a dispute between the parties that by this stage the contact service had ceased providing a changeover service for the family.

5. The only evidence adduced by the father in relation to either an agreement with respect to the December/January school holiday period or confirmation that the default position under order 3(b)(v) would operate is an email sent by him to the mother at 5.10 on 15 December 2016 in which he wrote:

   Hello

   I am writing to you about the school holidays. 

   I am available to spend time with the children during this time as well as scheduled times.

6. In my view this email sent at 5.10pm on the day his school holiday time was due to commence and twenty minutes prior to changeover could not be said to be an attempt to reach any agreement about alternate time.  It is also not in fact a change from the default period and will be treated as an attempt by him to confirm the default position. Therefore, in accordance with the orders the father’s time in that period would occur for the first two weeks of the December/January school holidays in 2016 with changeover to occur at 5.30 on 15 December 2016. However, as noted the contact centre was no longer providing a service to the parties by that date.

7. The father adduces no evidence in relation to any further arrangements or agreement for changeover for this period of time or evidence that he attended any particular place for changeover.  In these circumstances there was no clear obligation on the mother about how changeover was to be effected. I cannot find that the mother intentionally failed or made no reasonable attempt to comply with an order as the terms of the order itself have not been identified.

8. Accordingly, I am satisfied that the contraventions on 2 September 2016, 8 October 2016 and 22 October 2016 are established but there is no prima face case with respect to the alleged contraventions on 19 August 2016, 23 October 2016 and 15 December 2016.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 December 2017.

Legal Associate: 

Date:  21 December 2017