Khalili & Chatha (No. 2)

[2016] FamCA 914

FAMILY COURT OF AUSTRALIA

KHALILI & CHATHA (NO 2) [2016] FamCA 914

FAMILY LAW – ORDERS – Contravention – where allegation that children not made available for time ordered – where respondent mother asserts reasonable excuse – where reasonable excuse established – application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE - Counselling - where recent final orders – where parties clearly remain in conflict – where appropriate to order that parties attend counselling – where order made for parties to attend post orders counselling.

Family Law Act 1975 (Cth) ss 4, 70NAE, 70NAE(2), 70NEA, 70NEB

APPLICANT: Mr Khalili

RESPONDENT: Ms Chatha

FILE NUMBER: PAC 991 of 2010

DATE DELIVERED: 13 October 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 13 October 2016

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: In person

RESPONDENT – SELF-REPRESENTED LITIGANT: In person

Orders

1. The Application for Contravention filed on 6 May 2016 is dismissed.

2. Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and in any event within 7 days contact the intake officer of Uniting Counselling and Mediation (Unifam) at … for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the Unifam Post-Orders Intervention Pilot program offered by that organisation and subject to the assessment of suitability each party shall then:

   (a)       Attend at such times, dates and places as may be advised; and

   (b)       Pay such fees as may be charged;

   (c)       To participate in and complete such program.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalili & Chatha (No 2) 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

1. These are proceedings commenced by the father by way of Contravention Application amended by an amended application filed on 15 August 2016.

2. The father’s Contravention Application was supported by a lengthy affidavit filed on 15 August 2016.  Much of the affidavit was struck out for irrelevancies.

3. The contravention alleged by the father is that on 22 April 2016 at about 5.30 pm at the X Contact Service the mother failed to deliver the subject children S, born in 2000; B, born in 2006, Y born in 2006 and H born in 2010 for the purposes of the children’s time with the father as provided for in orders made by Carew J following a defended hearing on 4 April 2016. 

4. Relevantly, the orders relating to the children’s time with the father say as follows: 

   Order 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 and relevantly for the three youngest children each alternate weekend from 5.30 Friday, subject to paragraph 10 below, until commencement of school on Monday commencing Friday, 8 April 2016. 

5. The changeovers were provided by Order 7 to take place as agreed between the parties or at school as applicable or failing agreement at the X Contact Service at C Street, Suburb P. 

6. The mother for her part concedes that on 22 April 2016 the children were not delivered to the X Contact Service, being the default changeover location as provided for in the orders.  The mother asserts that she has a “reasonable excuse” for not doing so.

7. The father’s primary evidence, being his affidavit in support of the application for contravention, exhibits to that affidavit email correspondence between himself and the mother and a copy of email correspondence from the mother to the contact centre. 

8. The exchange of email correspondence between the mother and the father commences, it appears, with an email on 21 April 2016 at 11.41 am from the mother to the father that says as follows. 

   I am writing in relation to changeover on 22 April 2016.  To ensure that the children are with me on Mother’s Day (8 May 2016), we need to change the weekends.  Hence in lieu of 22 April 2016 I will be bringing the children to the centre for changeover on Friday, 28 April. 

   Please confirm by email this is fine for you.  I ask you to remember the children’s express wishes, reluctance as well as prolonged unreasonable and stressful handover and that they have the right to spend Mother’s Day with me. 

9. To that email the father responded shortly thereafter at 12.33 pm with the email headed “Re changeover 28 April in lieu of 22 April”.  The email says as follows. 

   Yes, this is fine.  I think the children should be with you on Mother’s Day.  I confirm the changeover will occur Friday, 29 April 2016, instead of the scheduled Friday, 22 April 2016.  I take into consideration your views as per attached email about the children’s wishes. 

   I’m always mindful about the children’s feelings regarding changeover and our time spent together.  I always want the best for our children, and the love and care I have for our children is the most important thing in my life, as I am sure it is for you as well.

10. Annexure “B” to the father’s affidavit is a copy of an email forwarded by the mother to the X Contact Service in the following terms. 

    Good morning, ...  Please note that I have sought legal advice and the current orders of 4 April 2016 are being appealed due to children’s express wishes, reluctance as well as prolonged unreasonable and stressful handover for over one hour.  Moreover, the father did not provide [H] with suitable bedding.  There was simply no bed for him.  Father did not permit the children to call me and return to me as he advised her Honour in court.  Again I am merely advising the centre. 

    In the meantime we won’t be using your services on Friday, 22 April 2016, to ensure that the children are with me on Mother’s Day, 8 May 2016.  In lieu please note I will be bringing the children to the centre for changeover on Friday, 28 April 2000.

    Finally I understand that [Ms U] was looking at the file and having a meeting and would like an update – I would like an update by email, because I am unwell.  Thanks and regards.  [Ms Chatha].

11. That copy email produced by the father has “the 28^th” crossed out and inserted “the 29^th” in handwriting.  It appears to be an alteration made by him. 

12. The mother in her response relied upon the email correspondence between herself and the father and explained that the reason why the email to the Contact Centre was a few minutes before the email to the father requesting the alteration to changeovers was that an earlier email to the father some minutes earlier had, as she said, “bounced back” to her. 

13. Whether the mother emailed the contact centre or otherwise is of no consequence in the context of the present application.  There is no doubt that the mother failed to comply with the tenor of the orders made on 4 April 2016. 

14. However, the operation of those orders is subject at all times to the parties’ agreement otherwise in writing. 

15. These are proceedings under the provisions of s 70NEA of the Family Law Act 1975 (Cth) (“the Act”). In summary, the section applies if the Court is satisfied that a person has committed a contravention of a primary order and the person does not prove that he or she had a reasonable excuse for the current contravention and the Court has previously not made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or otherwise adjourned proceedings in respect of a contravention by the person of the primary order.

16. Section 70NEB sets out the powers of the Court in circumstances where a contravention is found proved under the provisions of s 70NEA (Less Serious Contravention).

17. A “primary order” is defined in s 4 of the Act to mean “an order under this Act affecting children and includes such order as varied”.

Reasonable Excuse

1. Section 70NAE sets out the circumstances in which a person may be taken to have had a reasonable excuse for contravening an order under the Act affecting children. They include, but are not limited to, circumstances set out in subsections (2), (4), (5), (6) and (7).

2. Section 70NAE provides relevantly:

   (1)  The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   (2)  A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)  the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)  the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3)  If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4)  …

   (5)  A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)  the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6)  …

   (7)  …

3. The Respondent mother does not contend that she contravened the Orders because, or substantially because, he did not, at the time of the alleged contraventions, understand the obligations imposed by the Order on him (s 70NAE(2)).

4. Accordingly, the Court must turn to look as to whether within the terms of s 70NAE or otherwise the mother had a reasonable excuse for contravening the subject orders.

5. The provisions of subsection (1) provide that circumstances of reasonable excuse are not limited to those illustrations in the section, and the Court is at large to determine whether there existed a reasonable excuse for contravention. 

6. The primary orders in this matter provide that the father’s time with the children shall at all reasonable times be as may be agreed between the parties in writing. 

7. Indeed, the parties complied with the primary obligation as to the father’s time with an agreement in writing that the children would not be available for the weekend commencing 22 April 2016 for the reasons referred to above. 

8. That in fact being the evidence adduced by the applicant father and confirmed by the respondent mother, the Court is comfortably satisfied that the mother has a reasonable excuse for the contravention.

9. In all of the circumstances, the Application for Contravention filed on 15 August 2016 is dismissed.

10. Otherwise this latest litigation arises from recent final orders. The parties clearly remain in conflict.

11. It is appropriate that the parties be directed to appropriate post orders counselling under section 13C of the Family Law Act 1975.

12. An order will be made accordingly.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 13 October 2016.

Associate

Date:  1 November 2016