Lawrence and Dehn

[2014] FamCA 517

FAMILY COURT OF AUSTRALIA

LAWRENCE & DEHN [2014] FamCA 517

FAMILY LAW – CONTRAVENTION – Undefended – Where it is alleged the father did not provide medical information to the mother as required pursuant to a Court Order – Where the contravention is found proven

Family Law Act 1975 (Cth) s 70NAC

Family Law Rules 2004 (Cth) rr 7.03, 7.06

APPLICANT: Ms Lawrence

RESPONDENT: Mr Dehn

FILE NUMBER: PAC 4894 of 2008

DATE DELIVERED: 11 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 11 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Smythe Wozniak Legal

THE RESPONDENT: No appearance

Orders

1. Pursuant to section 70NBA, having found that the Respondent father committed a contravention of a primary order being Order 20 made 7 May 2013, I vary the primary order by adding the following order:

   (a)That the mother is permitted to communicate with and attend upon any treating medical practitioner in relation to treatment provided to the children for any significant illness or condition and to receive any relevant information and reports and such treating medical practitioners are hereby authorised to provide such information directly to the mother.

2. The application to vary the primary order dated 7 May 2013 is granted in part in the making of order 1.  The balance of the mother’s application under section 70NBA is adjourned to 1 August 2014 at 9.30 am.  The first count of the mother’s contravention application dated 5 May 2014 is also adjourned to the same date.

3. The father be notified of the orders made in today’s proceedings by posting the orders to his address and serving him by email at the email address used by him in Annexure “D” of the mother’s affidavit sworn 1 May 2014 and filed on 5 May 2014.

4. Leave is granted to the Applicant’s solicitor to issue such further subpoenas as they consider relevant to the issues in the proceedings, without further leave of the Court and time for service to be abridged, such subpoenas are to be made returnable on 29 July 2014 at 9.30 am before a Registrar.

Notations

1. It is the intention of the mother to adduce evidence from Dr D or other healthcare providers in relation to the balance of the application to vary interim orders following the Court’s finding on 11 July 2014 that the father committed a contravention of the primary order.

2. An application for costs in respect of the contravention today is reserved to the next occasion.

3. The mother’s solicitor will provide any treating practitioners with the orders and will separately notify the father through his former solicitors of details of the contravention proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawrence & Dehn 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 PARRAMATTA

FILE NUMBER: PAC 4894 of 2008

Ms Lawrence

Applicant

And

Mr Dehn

Respondent

REASONS FOR JUDGMENT

1. This is an application alleging that the Respondent father has contravened Orders in respect of children, being Orders made on 7 May 2013.

2. The Applicant mother alleges in her Contravention Application filed on 5 May 2014 that the father has contravened two Orders contained in the Orders made on 7 May 2013, but wishes for only one of those contravention applications to be dealt with today.

3. I first must be satisfied that the father has been served as required by the Rules and according to rule 7.03 this is an application which requires special service by hand.  Rule 7.06 sets out the requirements for service by hand and I am satisfied on the basis of the evidence contained in the Affidavit of Service of Mr B that that section has been complied with. In particular the Affidavit of Service provides that on 1 June 2014 Mr B attended the Respondent father’s residential address, approached the Respondent father and identified him from a photograph provided by the Applicant. As the father began to reverse the car out of the driveway when Mr B spoke to him, Mr B shouted out words to the effect of “[Mr Dehn] I am serving you with this Application, Contravention and affidavits” and threw the documents on to the vehicle in his presence.

4. I was satisfied on the last occasion that the matter came before the Court, which was on 30 June 2014, that the Application had been served as required but for the purposes of affording the Respondent father procedural fairness, I adjourned the matter and directed that the father be also notified of the Application and the consequences should he fail to attend by serving Orders to that effect by both ordinary post and registered post.

5. Both documents were returned to the Court Registry and it is noted that the registered post item bears the word “Refused” on the envelope.

6. Today, the Applicant elected to deal with one of the contravention allegations in the Respondent’s absence and seeks for the other to be adjourned rather than seek a warrant for the Respondent father’s arrest.

7. Having been satisfied as to service, as set out, I now determine the application.

8. The Applicant mother bears the onus of proof in establishing that the contravention as alleged has occurred.  In this she relies upon her affidavit dated 1 May 2014 with its various annexures and some medical records contained in records produced by Dr D upon subpoena, which have been marked Exhibit “3” in today’s proceedings.

9. In the Application which the mother seeks to be dealt with today, the mother alleges that the father has breached Order 20 of the Orders made on 7 May 2013 in this Court at Sydney.  According to the Applicant mother’s affidavit the Respondent father was present in the courtroom when the Orders were made and it is noted that the Orders were made by consent. The record also indicates that the father was legally represented by counsel on that day. 

10. Order 20 of the Orders of 7 May 2013 provides:

    That the father provide the mother in a timely fashion with details of medical attendances by either of the children in relation to any significant illnesses and any relevant information and Reports and the mother shall be at liberty to telephone the children’s medical practitioner.

11. Exhibit “3” which contains records relating to the medical condition of one of the children C, who is 14, having been born in 2000, suffered as a child from a serious medical condition which required hospitalisation prior to the Orders of May 2013.  The records indicate that Dr D, a paediatric neurologist, had last seen C prior to making the Orders in May 2012.  An email from the Respondent father to Dr D sent on 24 November 2013 indicates that the father requested an urgent appointment with Dr D for C as C had “recently shown signs of at least 4 significant absenteeisms over the last two weeks with two this afternoon.”  The email also says “please don’t contact C’s maternal mother (sic) [Ms Dehn] ([Lawrence])”.

12. Dr D’s records indicate that C was seen with his father at the Neurology Clinic at E Hospital 24 January 2014 and the Doctor noted that following a three to four years without seizures and off medications C’s seizures had returned just before Christmas.  The Doctor described C, at that stage, as having “a normal neurological examination”.

13. The mother was at the time of this email correspondence and the appointment unaware of any health issues regarding C.  In her affidavit the mother refers to receiving an email from the Respondent father on 4 January 2014 informing her that C was at camp and C and his sister F were not made available to the mother for them to spend time with her in accordance with the Orders in January.

14. On 21 March 2014 the mother spoke to a friend from church and was told something.

15. On 24 March the mother telephoned Dr D, who told her that he had recently seen C and said:  “There are some issues”.  He also told the mother that the father had told him there was a Court order preventing him from talking to the mother about C.  At Dr D’s request, the mother sent a copy of the 7 May 2013 Orders to him on 25 March 2014.

16. The mother had a further conversation with Dr D on 26 March in which the Doctor told her that a recent MRI showed that the tumour had regrown and that the father had met with the surgeon and surgery was imminent.  He also told the mother that she should be present for these specialist and hospital appointments and surgery.

17. On 14 April 2014 the mother caused her solicitors to write to the Respondent father in relation to C’s medical condition.  The father sent a message via email to the mother on 1 May 2014 that reads:

    Subject: For the record

    As per clause 20 of the court orders, [C] has been diagnosed with a tumour in his left forearm and is being referred to [G Hospital] today.  No appointment has been confirmed at this stage.

    Please note your email and phone have been blocked as a result of your history of harassment via these channels.

18. The father had not communicated with the mother in any way prior to this email and there is no evidence of any communication since that date.

19. I am satisfied that the Respondent father was present when the Orders of 7 May 2013 were made and, being legally represented, was advised of his requirements under the Orders and the consequences of contravening them.

20. I am also satisfied that these Orders governed the parenting arrangements for C between 15 December 2013 and 18 April 2014, the dates in which it is alleged the contravention occurred.

21. The Orders require the father to provide information in a timely fashion where it relates to medical attendances by either of the children in relation to any significant illnesses and is required to provide details of any relevant information and reports.  The mother is also at liberty to telephone the medical practitioner.

22. I am satisfied that the information in question, that is, that the child’s seizures had returned and were regarded by the father as sufficiently serious to require urgent appointments with the neurologist and for the purposes of an MRI study of C’s brain and any consultations in relation to impending surgery and the reports related to these attendances are medical attendances in relation to a significant illness and are relevant information and reports that were required to be provided to the mother in a timely fashion under the Orders.

23. The information was not provided to the mother at the time the various medical attendances were occurring, nor at a time that allowed her to participate in arrangements being made for surgery.  Further, although the mother is given liberty under the Orders to telephone the children’s medical practitioner, the father specifically advised Dr D that the mother had no entitlement to this information.  Some very limited information was provided by the father on 1 May 2014 following correspondence from the Applicant’s solicitor, but this was not provided in a timely fashion as required under the Orders.

24. Under section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) a person is taken for the purposes of the division to have contravened an order under the Act affecting children if, and only if, where the person is bound by the order, they have intentionally failed to comply with the order or have made no reasonable attempt to comply with the order.

25. In respect of the husband’s positive obligation to provide the medical information in a timely fashion, I am satisfied that he has contravened the Order.

26. Having been satisfied that the father has contravened the Order and there be no evidence before me in relation to a reasonable excuse being proffered by him for the contravention, I find count 2 of the contravention application proved.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 July 2014.

Legal Associate:       

Date:    16 July 2014