Leven and Waite

[2010] FamCA 1207

FAMILY COURT OF AUSTRALIA

LEVEN & WAITE [2010] FamCA 1207

FAMILY LAW – CONTRAVENTION – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Leven

RESPONDENT: Mr Waite

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2959 of 2010

DATE DELIVERED: 14 December 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 14 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchins

SOLICITOR FOR THE APPLICANT: Women’s Legal Service

COUNSEL FOR THE RESPONDENT: Ms Palbas

SOLICITOR FOR THE RESPONDENT: Thelma Palbas & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Walters

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

Orders

1. That the contravention application filed by the mother on 1 November 2010 is proved relating to all allegations therein.

2. That the court finds that the breach fits within subdivision E of Division 13A of the Act.

3. That the question of what parenting orders should be made arising out of the completion of the said contravention application is adjourned to 10.00am on 17 December 2010 (noting that the parties are to file precise minutes of orders they propose that day).

4. That the father produce the two children Y born … October 1997 and Z born … September 2002 at 9.30am at the parenting facility of the Family Court of Australia Melbourne Registry on 17 December 2010 at 9.30am.

5. That the reasons this day be transcribed.

6. That the father pay the mother’s costs of $2600.

7. That the costs of the Independent Children’s Lawyer be reserved to the trial judge.

8. That the file produced by the Department of Human Services pursuant to the subpoena served upon them be released for inspection only.

IT IS NOTED that publication of this judgment under the pseudonym Leven & Waite is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2959 of 2010

MS LEVEN

Applicant

And

MR WAITE

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application brought by the mother to have the father of two children dealt with for contravening orders that were made by the Federal Magistrates Court in May 2010.  The facts of this case are extraordinarily messy and difficult to follow, but it seems that there are three children of this relationship, one of whom, or the oldest of whom, is living with the mother, and the two younger children, aged eight and 13 years, are living with the father. 

2. The background of the parties’ relationship is at best described as traumatic.  Needless to say, after the orders were made in May this year, an incident occurred in July in which a man described as the grandfather of the children attended at the father’s home at something like 1.30 in the morning accompanied by five other people.  The inference will be obvious as to why that was so.  Perhaps by luck, the children were not present in the home at the time, but an incident occurred which gave rise to the police charging these males with their nefarious activities.  Just what will happen with that remains to be seen.  I am told that the charges amount to aggravated burglary, which in Victoria means that someone has committed an offence of breaking and entering contrary to law at a time when they had either a weapon with them or they committed violence on the premises.  Needless it needs to be said that if a conviction was recorded, the maximum penalty for aggravated burglary in Victoria is 25 years imprisonment.  It must, therefore, be treated as a serious offence.

3. There does not seem to be any dispute that that incident occurred.  Its consequence was that the father, presumably with the assistance of the Victorian Police, left the home with the children, his partner, and her three children, and have gone into hiding. 

4. The application before me alleges contraventions of the court order from 16 July onwards.  The mother has not had any time with the children at all.  The father has not attended the Court today, although his practitioner has, and I gave her permission to rely on the affidavit that he filed on 4 November.  That affidavit sets out the details of the incident to which I have just referred.  It focuses on the fact that he has a significant concern about safety, and he encompasses in that concern his partner, her children, and his two children. 

5. The difficulty I have is that there is no reason for me to suppose that the grandfather or any other person who might be an agent of the mother might hurt the children physically.  That is not to say that these children would not be psychologically harmed.  Children who witness conflict between adults are adversely affected.  However, these children fortunately only saw the aftermath and no doubt witnessed the fear of their father. 

6. An application was made for the matter to be dealt with by electronic means, and I rejected that on the basis of its seriousness and the fact that it had been before the Court and the father had been asked to attend.  As is the Court’s policy, I directed the Registry Manager to put in place a safety plan, but it appears that that was not either communicated to the father, or, in any event, he chose not to attend. 

7. What is really troubling in this case is that there is no relationship occurring between the two boys and their mother. The foundation for that refusal is the father’s concern. The evidence of the father does not satisfy me that he has a reasonable excuse to preclude the children from having that time. Section 70NAC of the Act says that a person is taken to have contravened an order affecting children if, and only if, having been bound by the order, they have intentionally failed to comply with the order or made no reasonable attempt to comply with the order.

8. The father’s position is simple.  He says he will not comply with the order because he fears for their safety.  The difficulty I had with that argument is twofold:  first, there is a provision in section 70NAE giving him an opportunity to come along and be excused from contravening the orders if he has a reasonable excuse.  The second basis for my concern is that there has been no application made by the father subsequent to the May 2010 orders to excuse himself from compliance with the orders.  That too is part of the reasonable excuse defence, because section 70NAE requires that a person only deny contact to the extent that it is necessary to protect the health and safety of either themselves or the child.  The father has taken the law into his own hands, much as he accuses his stepfather-in-law of doing the same thing.

9. In my view, this is one of those situations where the Court has to take a stand and have the matter properly dealt with, not as the father would have it.  One of the orders the Court has open to it is to adjourn the proceedings to allow proper parenting orders to be considered.  In my view, urged with the support of the independent children’s lawyer, I propose to take that course of action so that I can have a proper examination of exactly what is happening in these children’s lives.  If the father is denying the mother time and there is no basis for my concern about the care of the children whilst in her company, then it may be that it is a time to change the children to live with their mother until all this matter can be properly sorted out by a court where the evidence can be tested properly.

10. In this case, what I propose to do is to find the father has contravened the order.  I find he has no reasonable excuse.  I propose to make an order adjourning the matter to Friday, subject to the question of the parents room being available for these children on Friday morning, and I ask that the independent children’s lawyer make those inquiries and come back. 

11. I have an application under section 117 of the Family Law Act (Cth) (“the Act”) that the father pay the mother’s costs of three occasions: costs of Riethmuller FM in September, the costs fixed and reserved by him, then there is an order for costs reserved generally by the Senior Registrar in November, and again today. Section 117 of the Act says that each party pays their own costs unless there are circumstances justifying an order, and if so, the Court must look at the provisions of section 117(2A) to determine whether or not to make an order.

12. I think it is hard to imagine a circumstance other than the Court being justified in this case, having regard to the fact that the father has been found to have contravened the order and not attended Court on a previous occasion and again today.  I do not know what his financial position is, and no doubt a costs order would be very difficult for him to manage, but people who are in impecunious situations cannot simply say that they will not comply with orders and expect impunity.  I am obliged to take into account questions of legal aid, and there has been no reference to that in this case.  This seems to me to be a case where the costs ought to be ordered, and I propose that the father pay the mother’s costs fixed in the sum of $2640.  The independent children’s lawyer simply seeks that her costs be reserved to the trial judge. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 14 December 2010.

Associate: 

Date:  31 December 2010