L and R
[2007] FMCAfam 963
•26 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & R | [2007] FMCAfam 963 |
| FAMILY LAW – Contravention. |
| Applicant: | P J L |
| Respondent: | C L R |
| File Number: | DNC 247 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 29 June 2007 |
| Date of Last Submission: | 29 June 2007 |
| Delivered at: | Sydney (by telephone-link to D and R) |
| Delivered on: | 26 November 2007 |
REPRESENTATION
| Applicant: | Mr P. L in person |
| Respondent: | Ms C. R in person (by video-link from B) |
DECLARATIONS AND ORDERS
The Court declares that there has been a contravention of:
(a)Order 2(a)(i) of the Court’s orders of 30 August 2006 by C L R (“Mother”) on 16 December 2007 by failing to ensure that the Children lived with the Father from that date;
(b)Order 3(i) of the Court’s orders of 30 August 2006 by the Mother on each of the twenty-two occasions between 30 August 2006 and 22 April 2007 that a video-telephone hook-up or the Children was required; and
(c)Order 3(ii) of the Court’s orders of 30 August 2006 by the Mother failing to ensure that A P L and C J L called P J L (“Father”) at the time required by the order.
And orders that:
A P L, C J L and I M L spend an additional two days living with their father during the 2007 Christmas school holidays, those two days to be the two days prior to the day on which the Children would otherwise have commenced to live with the Father under the Court’s orders of 30 August 2006.
Each party be at liberty to apply to vary orders 2(a)(i) and 3(i) of this Court of 30 August 2006 by 4:00pm on 17 December 2007.
There be no order as to costs.
The Court otherwise adjourns the proceedings to 4:30pm (AEDT)/ 3:00pm (ACST) on 4 February 2008 for mention, by telephone.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
DNC 247 of 2007
| P J L |
Applicant
And
| C L R |
Respondent
REASONS FOR JUDGMENT
Introduction
P J L[1] and C L R[2] have a long history of family law disputes. But on 30 August 2006 this Court make consent parenting orders binding on the Father and Mother.[3]
[1] “Father”.
[2] “Mother”.
[3] “August 2006 Orders”.
There are three L children from the Father and Mother’s relationship: A P, born 28 September 1991, C J, born 23 May 1993 and I M, born 19 December 1995.[4]
[4] “Oldest Child”, “Middle Child” and “Youngest Child” respectively, collectively “the Children”.
There are also three children of the new partner of the Father, but they are not the Father’s natural children.
In this case the Father alleges various contraventions of the August 2006 Orders.
Alleged Contraventions
Order 2(a)(i)
Order 2(a)(i) of the Court’s August 2006 orders provided as follows:
“2. That the children live with the father as follows:
(a) for four weeks, here and after called “half”,
(i) during the Christmas school holidays on dates to be agreed between the parties, and if no agreement can be reached, in the first half of the school holidays on even numbered years and the second half of the school holidays in odd numbered years, with the holiday deemed to commence on the Saturday that school concludes in each year;
There is no dispute that the Children were booked from B on Saturday 16 December 2006 departing at 8:55pm and arriving in D at 12:35am on Sunday 17 December 2006.[5]
[5] Mother’s Affidavit, sworn 8 June 2007, para. 1 and Annexures A & K (“Mother’s Affidavit”)>
There is no question that there has been a breach of order 2(a)(i) because the Children did not commence to live with the Father from Saturday 16 December 2006.
The issues for the Court then are:
a)whether the Mother had a reasonable excuse for the contravention;
b)how serious the contravention is; and
c)what orders ought be made in relation to the contravention.
In order to deal with those issues it is necessary to set out the background and some other facts.
On 29 November 2006 the Mother emailed the Father and in relation to order 2(a)(i) said as follows:
“The three children will be travelling via Virgin Blue B to D on Flight (number) Departs: 21:05pm Saturday 16 December 2006. Arrival: 12:35am Sunday 17 Dec 06”[6]
[6] Mother’s Affidavit, Annexure A.
The Father replied to the Mother by email on 7 December 2006, as follows:
“As you are aware Family Court Orders require that the Children live with me as of the 16 December 2006, according to your suggested travel arrangements the children will not arrive in D until 17 December and the return date is early. In booking the children’s flights please ensure that their travel itinerary is in compliance with current court orders.”[7]
[7] Mother’s Affidavit, Annexure B.
The Father sent a further email to the Mother on 13 December 2006 indicating that he would, on this occasion only, permit the Children to arrive in D one day late because that was in the best interests of the Children, and on the understanding that the Mother would comply with all relevant Court orders in the future. The Father suggested alternative return flights to those that had earlier been suggested by the Mother. The Father had the Children returning on 14 January or very early on 15 January 2007, to allow for the late arrival by one day.[8] The Mother had arranged for the Children to return from D to B on 13 January 2007.[9]
[8] Mother’s Affidavit, Annexure C.
[9] Mother’s Affidavit, Annexure A.
The Mother replied by email to the Father on 14 December 2006 in the following terms:
“I am not changing anything. Money does not grow out of my ass.
You are annoying, difficult and unreasonable and half an hour into the 17th is nothing to whinge about. The Children will be arriving as per the flights that I have paid for and will be returning as per the flights organised. Have a nice holiday with our children.”[10]
[10] Mother’s Affidavit, Annexure D.
On 14 December 2006 the Father replied to the above email as follows:
“As you are aware the Family Court Orders require that the children will live with me as of 16th December 2006, according to your suggested travel arrangements the children will not arrive in D until the 17th December 2006.
As we can not reach an agreement on suitable alternative travel dates, I must insist that you comply with orders made at the Federal Magistrates Court in D 2006.”[11]
[11] Mother’s Affidavit, Annexure E.
There are other emails concerning the return flight to D which are not relevant to the contravention alleged (but nevertheless indicate the on-going difficulty in the relationship between these parents).
The Mother says that the contravention was not deliberate and that she did not intend to contravene, but simply put the Children on a flight that she could afford. This was not put expressly as a reasonable excuse for the contravention, but the Court will consider it in that light.
There was no specific evidence as to the Mother’s financial position at the time that the flights were booked on 9 November 2006,[12] or at the time of the exchange of emails with the Father in late November or early December 2006. The Mother, in booking the flights, has paid no heed to the Court’s orders which require the Children to live with the Father from 16 December 2006. There is no actual evidence as to the cost of the various flights, and no evidence as to whether it was possible to book the Children on a similar flight on the Friday night
(15 December 2006) which would have had the Children arriving in D on the Saturday (16 December 2006) which would have complied with the Court’s orders. Even when the possibility of a contravention is brought to the Mother’s attention, and the Father consents to the Children arriving a day late but suggests that the return flight be booked a day late, the Mother’s attitude is completely unreasonable. Rather than endeavouring to explain in measured terms why she has booked the flights as she did, she simply asserts that she is not changing anything, and that “money does not grow out my ass”. She then criticises the Father saying that the Children arriving half an hour into the 17th December “is nothing to whinge about”. The Mother completely ignores the fact that the Father had consented to them arriving half an hour late, but also, and more importantly, in making the original booking and in her reply to the Father, completely ignores the fact that there are Court orders in place requiring the Children to live with the Father from 16 December 2006.
[12] Mother’s Affidavit, Annexure J.
In the circumstances, it appears to me that there is no reasonable excuse for the Mother to have contravened the order, and that her conduct was deliberate.
In all the circumstances, the Court finds that the contravention of order 2(a)(i) on 16 December 2006 is proven.
The Father concedes that the contravention is at the lesser end of the scale.[13]
[13] Transcript at 21.
The Court notes that compensatory time was given to the Father by the Mother on a subsequent holiday.[14]
[14] Transcript at 17.
The Court considers that the only appropriate penalty in the circumstances is one which allows for the other party to apply to vary the August 2006 orders to provide for greater specificity in relation to the times at which the Children should fly between the Mother and Father and vice versa.
If, of course, the parents believe that they can deal with this sensibly in the future, and not in the nasty and pedantic way that they have done so in the past, then there will be no need for them to apply to vary the orders.
The Court will make orders allowing for an application for variation of order 2(a)(i) of the August 2006 Orders to be made to the Court within 21 days.
Order 3(i)(a) and (b)
It is alleged that on twenty two occasions between 30 August 2006 and 22 April 2007, and without reasonable excuse, the Mother failed to facilitate a video-telephone hook-up for the Children to contact the Father.
Order 3 of the 30 August 2006 orders provides as follows:
“That the children have the following parental communication as follows:
(i) each Sunday afternoon by video telephone Hook up between 6m E.S.T. and 8.30pm E.ST.
(a)between the children J H B born 27 May 1994, E H born 27 May 1994 and S A B born 7 May 1995 and the said children between 6.00pm and 7.00pm E.S.T.
(b)between 7.00pm E.S.T and 8.00pm E.S.T between the said children and the father.”
The Father alleges that video communication has not occurred on any ordered or other occasion.[15]
[15] Father’s Affidavit, sworn 27 April 2007, para. 5(a)(“Father’s Affidavit”).
The fact that there has been no video hook up since the August 2006 orders was confirmed by the Mother in cross-examination.[16] It was conceded that there were 22 relevant occasions on which the video telephone hook up did not occur.
[16] Transcript at 9.
It is apparent that the Mother did not have an internet connection capable of facilitating a video telephone hook up at the time the orders were agreed to. The Court can only wonder why it was that the order was agreed to in those circumstances. More than three months later the Mother advised the Father as follows in relation to the internet connection for the video telephone hook up:
“The internet will be up and running as soon as I financially am able to make this happen, but in the meantime the children can still call you on your home telephone, or your mobile to keep with the Family Court orders.”[17]
[17] Father’s Affidavit, Annexure B, being an email from the Mother to the Father dated 11 December 2006.
At the hearing on 29 June 2007 the Mother indicated that the video telephone hook up arrangement was not yet in existence. Again, but without any supporting financial evidence she claimed that it was “out of my financial situation for at least about another two or three weeks”.[18]
[18] Transcript at 9.
In final submissions the Father indicated that he had taken steps to facilitate building a computer with telephone connections and video for the Children, and indicated that he was content for the orders to stand as they are.[19]
[19] Transcript at 20.
The Court finds the contravention of clause 3(1)(a) and (b) proven. There has been a denial of forty four hours of video contact in relation to the twenty two occasions. Twenty two hours of that contact is between the Children and the Father’s new partner’s children, and twenty two hours of that contact is between the Father and the Children.
The Father agreed, and the Court finds, that this contravention is at the lower end of the scale, and therefore of lesser seriousness.[20]
[20] Transcript at 21.
The Court will order that the contravention be remedied by additional time being spent by the Children with their Father and with the Father’s other children. That time will be two days, one additional day at the beginning, and one additional day at the end, of the next Christmas school holidays. Further if there are on-going problems with the video telephone hook up, either party may apply for orders varying the August 2006 Orders, within 21 days.
The Father alleges three breaches of order 3(ii) of the August 2006 orders.
Order 3(ii)
Order 3(ii) of the August 2006 orders provides as follows:
“That the children have the following parental communication as follows:
(ii)telephone communication at least once per week between the said children and the father by agreement and in default of agreement each Wednesday evening at 6.30pm E.S.T”
The Father says that the Children “were not made available for telephone contact” on 25, 18 and 4 April 2007.[21]
[21] Father’s Affidavit, paras. 6, 7 & 8. The alleged contraventions were pleaded in this reverse order and the Court proposes to deal with them accordingly.
In relation to 25 April 2007 the Mother says that the Children were “in the process of moving house and didn’t have the means to call … [the Father’s] phone”.[22] She goes on to say that the Father has access to three mobile phones, and could have called any of them. Apart from establishing that one of the Children may not have had access to a mobile phone (which is not a contravention alleged) the Mother was not cross-examined in relation to the events of 25 April 2007.
[22] Mother’s Affidavit, p. 3.
The Court considers that there has been no contravention of order 3(ii). The order requires that the Children have telephone communication at least once a week with the Father, and in default of agreement (which appears to be the case here) each Wednesday evening at 6.30pm E.S.T. There is no evidence that the Children were not made available as alleged by the Father. There is no evidence that the Children were not contactable on the mobiles concerned. The order does not require that they be in a particular place by a particular phone in order to have the telephone communication with the Father. In those circumstances, the Court has come to the view that there is no contravention of order 3(ii).
There is also no evidence that the Father actually called the Children in an endeavour to have telephone communication with them.
In relation to 18 April 2007 the Mother says as follows:
“[Oldest Child] and [Middle Child] were out at the movies and they called the [Father] from their friend[s] … place when they were finished. [Youngest Child] was out with me and our phones weren’t accessible as they were out of range.”
In cross-examination the Mother explained that the Oldest Child and Middle Child had gone to the movies with a free pass, and she had sent them a text message reminding them to ring the Father, who they called from their friend’s mother’s place at about 7.00pm. That is no t 6.30pm as required by the order. There is therefore a very minor technical contravention of the order in relation to the Oldest Child and Middle Child.
In relation to the Youngest Child, she was with her Mother, who was employed as a community housing officer, and was called out to an area outside of mobile phone range.[23] The Mother said she could not leave the Youngest Child at home alone, and had to fulfil her work commitments, for which she appears to be on call. In the circumstances, it does not appear to the Court that there has been a contravention with respect to the Youngest Child because the Mother had a reasonable excuse, being an urgent work callout taking her beyond mobile phone range.
[23] Transcript, at p.10.
Overall, however, there has been a contravention, but as indicated above a minor technical contravention, in relation to the Oldest Child and Middle Child because they did not call at 6.30pm as required by the orders.
This contravention is sufficiently minor and technical for the Court not to make any order.
On 4 April 2007 the Mother says that the telephone “had got broken that evening”.
The Mother was not cross-examined in relation to the telephone being broken. Further, for reasons set out above in relation to 25 April 2007 there was no obligation on the Mother to have the Children in a particular place at the appointed time for the call, and there is no evidence that the Father endeavoured to call the Children, either on the broken phone or the Children’s mobiles.
In the Court’s view, for similar reasons to those associated with the alleged breach on 25 April 2007, there is no contravention of order 3(ii) on 4 April 2007.
Order 5
Order 5 of the August 2006 Orders is alleged to have been contravened on three occasions, on 3 December 2006, 6 March 2007 and 11 March 2007 by the Mother.
Order 5 of the August 2006 orders provides as follows:
“that the mother shall use her best endeavours to ensure that the children retain and maintain mobile telephones and she will encourage the children to maintain telephone communication with the father at any other time than as promised here.”
In relation to each alleged contravention the Father alleges that the Mother “actively discouraged the children from having telephone contact with me”.
In relation to the alleged contravention on 3 December 2006 it is alleged that the Mother’s then partner “seized the communication equipment being used” during Court ordered time spent communicating with the Children, and that the Mother’s then partner attempted to discourage the Children from having contact with their family in D by demanding that certain topics (including Christmas and a forthcoming visit to D) not be discussed.[24] The Father also alleges the Mother “made no attempt to prevent this action or any of the subsequent abusive phone calls to myself and my wife”.[25] The Mother took no objection to this particular subparagraph, and the Father was not cross-examined on it. However, having regard to the fact that both parties were self represented litigants, and in the interest of fairness, the Court proposes to disregard that part of the particular subparagraph relating to the subsequent abusive phone calls because they are not the subject of the alleged contravention. The Mother was cross-examined in relation to attempts to prevent the Mother’s former partner from interfering with communication between the Children and the Father. The Mother said that she was not around when the Children had their telephone conversation with the Father, except for dialling the number for them.[26]
[24] Father’s Affidavit, para.9(h).
[25] Father’s Affidavit, para.9(h)(ii).
[26] Transcript at 10-11.
In the Court’s view there is insufficient evidence to sustain the allegation that on 3 December 2006 the Mother actively discouraged the Children from having telephone contact with the Father. The only evidence of the Mother’s involvement is that she dialled the telephone numbers for the Children, thereby encouraging them to call the Father, and thereafter left them to discuss matters on their own with the Father, a course of action entirely consistent with their respective ages (at the time 15, 13 and 10).
The Court finds that there was no contravention of order 5 on
3 December 2006.
The Father also alleges that the Children were actively discouraged on 6 March 2007.
The Father’s evidence in relation to 6 March 2007, on which he was not cross-examined, is as follows:
“(d)On the 6th March 2007 at 9.43pm C.S.T. I received this SMS message from M. “What’s up with ya mother??? Why cant she come and see for her self? We earn close to two hundred thousand a year!!! U have nothing, like u always had..And always will…Get a life p!!”
(e) On the 6th March 2007 at 10.00pm C.S.T. I received this SMS message from the respondent. “Sorry for the out break, but we are all sitting at the dining room table.Having tea and answering your mother’s questionaire,we are having a laugh..We don’t have any dragon’s yet..Ha ha”
(f) Both messages came from the same phone number.
(g)I say that these messages show that M was at this time verbally abusing the children for having contact with my family, and that this behaviour discourages my children from having contact with me.”[27]
[27] Father’s Affidavit, para. 9(d)-(g).
The evidence from the Father simply does not show that the Children were actively discouraged, or discouraged at all, from having telephone contact with the Father on 6 March 2007 by the Mother.
On 11 March 2007 the Father says he placed a call to A’s mobile phone, and when he did so he could hear the Mother’s former partner “in the background demanding to know who was on the phone, and that when the Mother’s former partner found out that it was the Father he demanded” that the Child “terminate the call”.
There is nothing in that evidence to indicate that the Mother actively discouraged the Children from having telephone contact with the Father. The evidence indicates that the Mother does dial the number for the Children when calls are made to the Father. There is no particular evidence led by the Father which would indicate that the Mother discourages the Children from having telephone contact, or, more particularly, that she did so on 11 March 2007.
For the above reasons the Court does not consider that there was a contravention of order 5 on 11 March 2007.
Conclusions
The Father has proved the contraventions alleged of Orders 2(a)(i), 3(i) and 3(ii), the latter in part only. Otherwise, the contraventions alleged by the Father have not been proven.
By way of penalty the Court has ordered that the Children spend additional two days living with their Father during their 2007 Christmas School Holidays, those two days to be the two days prior to the day on which the Children would otherwise have commenced to live with the Father under the August 2006 Orders. The Court has also ordered that each party be at liberty to apply to vary Orders 2(i) and 3(i) of the August 2006 Orders within twenty one days (that is, by 4:00pm on 17 December 2007).
As to costs, the Father has proved two of the contraventions in relation to orders 2(a)(i) and 3(i). He has also proved a very minor technical contravention of Order 3(ii), but otherwise failed to prove alleged contraventions of Order 3(ii) and Order 5.
In the circumstances, each party having essentially being half right in proving or disproving the alleged contraventions, it is appropriate that there be no order as to costs.
In relation to the Order providing each party with liberty to apply vary Orders 2(a)(i) and 3(i) the proceedings have otherwise been adjourned to 4:30pm (AEDT)/3:00pm (ACST) on 4 February 2007 for mention by telephone.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 26 November 2007
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