Madina and Mett

[2010] FamCA 509

FAMILY COURT OF AUSTRALIA

MADINA & METT [2010] FamCA 509

FAMILY LAW – CONTRAVENTION – Contravention of Court orders affecting a child

Family Law Act1975 (Cth)

APPLICANT: Mr Madina

RESPONDENT: Ms Mett

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 2398 of 2007

DATE DELIVERED: 21 June 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Loughnan JR

HEARING DATE: 21 June 2010

REPRESENTATION

APPLICANT FATHER IN PERSON: Mr Madina in person

RESPONDENT MOTHER IN PERSON: Ms Mett in person

INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

IT IS ORDERED

1. That the mother’s address be sealed in an envelope not to be released without order of the Court.

2. The Court found the mother has contravened without reasonable excuse, orders made by this Court on 8 April 2009 by her conduct on 22 August 2009, 3 October 2009 and 23 January 2010.

3. By way of consequential orders in relation to the contraventions found proved today, the parties cause the children O born … September 2004 and Y born … November 2006 to live with the father for three additional weekends or, subject to the discretion of the Court, one period of additional school holiday time adding up to the equivalent of three additional weekends.  That time unless the Court otherwise orders be exercised within six months from today’s date and to be on such conditions as are included in an order made in fresh parenting proceedings to be commenced by the mother.

4. That the Independent Children’s Lawyer restore these proceedings to the list by arrangement with the Parramatta Listing Manager in the event that the mother does not file a fresh application for parenting orders within two months from today’s date.

5. The Court noted consideration may then be given to whether proceedings would be initiated by the father, to any further contravention proceedings instituted by the father or to any proceedings instituted by the Independent Children’s Lawyer.

6. That a copy of the extempore reasons given today be forwarded to the mother together with a sealed copy of the orders made today.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:   PAC 2398 of 2007

MR MADINA

Applicant

and

MS METT

Respondent

REASONS FOR JUDGMENT

1. These are proceedings that the mother be dealt with for breach of court orders.  The father filed a number of applications.  They first came before me in the list at Parramatta on 12 April 2010. The parties appeared in person. The mother had no legal representation, no family support and was breast feeding her new baby. The mother said that the baby’s father was in full-time employment and that she could make no child care arrangements. I told the parties that it was entirely inappropriate that an infant be present during a contested hearing. I restored the appointment of an independent children’s lawyer for the parties’ children and adjourned the matter to the Sydney Registry on 16 April 2010 and made arrangements for the mother’s baby to be minded in the child minding area on that day.

2. On 16 April 2010 the matter came before me in Sydney. The parties appeared in person. A Ms Turong attended on behalf of the very recently appointed ICL.

3. After settling them with the father I informed the mother of three allegations. I had previously informed the father that he could proceed with any or all of the many allegations contained in his various applications but the matter would need to be listed for a day or more later in the year. If he wanted the matter dealt with in a duty list, he had to agree to proceed with no more than three allegations, on the basis that the others would be withdrawn or dismissed.  Ultimately, the father decided to proceed with three allegations.

4. I informed the mother that it was alleged that she had contravened without reasonable excuse orders made on 8 April 2009 in that she had failed to deliver the children, O and Y, to the Contact Centre at 9 am on 22 August 2009, 3 October 2009, and 23 January 2010. 

5. The mother indicated that she did not admit the allegations.  She conceded that she had been served with the applications and the affidavits in support, that she had knowledge of the orders made on 8 April 2009 and of the contents of the orders.  She conceded that in respect of each of those dates the orders required her to deliver the children to the Centre, and she conceded that on each of those dates she had failed to do so. Again, we ran out of time, and the matter was adjourned to today’s date at Parramatta, and it was requested that arrangements be made for the mother’s infant child to be cared for.

6. We got through to 1 o’clock and the mother informed me that she had to collect the subject children from school, that she lived a distance from the Registry. In addition the Child Minding Supervisor had informed my associate that the infant child was distressed and the mother was required.  On that basis, I informed the mother that I intended to find that she had breached the court orders.  I indicated to her the range of possible consequences and said that I would give reasons and make orders in her absence this afternoon.  The matter has already occupied three occasions in the duty list, and it does not seem to me to be in the interests of the parties or in the interests of the community that the matter be adjourned a further time.

7. The background to the case is the father was born in 1981 and is 28 years of age. The mother was born in 1984, and is 25 years of age.  They cohabited from August 2003, were married in September 2003, and separated in April 2007. O was born in September 2004, and Y in November 2006.  There is a report dated September 2008 in the substantive proceedings to the effect that after separation the mother took the children to live in the central coast area and later returned.  The father did not see the children for about ten months before the report.  The mother returned to Sydney with the children before July 2008. 

8. The father complained to the Family Consultant that the mother had brought the children to the Contact Service notwithstanding that they were ill, and he refused to take them.  There was a complaint about the children being left with the paternal grandmother and about the mother using an anglicised version of Y’s name. Report noted that the father preferred Y, but the report writer recorded that he had in fact used other names for both children.  The children were left with the paternal grandmother, despite orders, and there had been one overnight with the father.

9. Final orders were made on 8 April 2009 in terms agreed between the parties.  All previous orders were discharged, and the parties were to have equal shared parental responsibility for the children, except in relation to education, whereby the mother had sole responsibility if the parties could not agree. The children would live with the mother and spend time with the father 10 am, Saturday 18 April, to 4 pm, Saturday 18 April, and then each alternate Saturday thereafter for 12 weeks, up until 11 July;  10am on 19 April, to 12 pm that same day, and each alternate Sunday for a period of 12 weeks up until 12 July; and, thereafter, for six months, the father was to spend time with the children from 9 am Saturday to 5 pm Sunday, commencing on 25 July and concluding on 17 January;  and then from 5 pm Friday to 5 pm Sunday, each alternate week in school terms thereafter, commencing on 29 January 2010.  The orders provide for time during school holiday periods with the mid-point to be carefully calculated. There was provision for special days, including some religious festivals. There were telephone communication orders and hand over was to be at the Contact Service. 

10. The orders required the parents to keep each other informed of any medical issues involving the children which may require the attention of a specialist doctor or the attention of the emergency department of any hospital, provided that the notification would be as immediate as practicable.  They were to authorise any medical practitioner, specialist therapist, or other treating professional to provide the other parent with all information reasonably required in relation to the children or either of them.

11. The orders required the parents to enrol in a “parenting after separation” program.  The father was entitled to receive copies of all school reports, notices, newsletters, bulletins and so on, and the mother was to authorise principals of schools to do that.  The parties were each entitled to attend parent-teacher interviews, concerts, and so on. 

12. Both parties were restrained from denigrating the other parent or any member of the other parents’ family. They were restrained from any audiovisual recording of the children for the purposes of evidence, unless on behalf of the police, a child welfare officer, or a doctor. They were both restrained from interrogating the children about the other parent. They were both restrained from physically disciplining the children, and they were to ensure that no other person did that. They were both restrained from relocating the children’s principal place of residence outside the Sydney metropolitan area and from removing the children from Australia.  They were to cause the children to attend a Public School throughout their primary and secondary education, unless they agreed otherwise, and there was a non-denigration order.

13. Then, on 4 May 2009, there was a contravention application filed by the father in the Federal Magistrates Court. Henderson FM transferred the proceedings to the Family Court.  The matter came before this court on 27 July 2009.  The father made an application for a Commonwealth Information Order and then he filed further contravention applications on 31 August 2010 and 14 September 2010.

14. On 14 September 2010 the father’s Commonwealth Information Order application had not been served on Centrelink and that was adjourned. A further contravention application was filed on 6 October. I granted a Commonwealth Information Order on 10 October 2009. Orders were made for service on the mother on 23 November 2009. A further contravention application was filed by the father on 18 December 2009.

15. The address provided under the order was not current and service was not effected. On 18 January 2010 that the contravention application filed 18 December 2009 was withdrawn and dismissed. On 29 January 2010 and 22 February 2010 further contravention applications were filed by the father. The matter then came before me on 12 April 2010.

16. The father is responsible for proving the breach and the mother is responsible for proving a reasonable excuse. Because of the concessions she made, it falls to the mother to satisfy the court that she had a reasonable excuse for breaching the orders. The mother conceded the dates were dates the father was to spend time with the children under the orders and conceded she had not delivered the children. Therefore the children were not provided to the Centre on the three dates. There is no challenge to the father’s evidence. He was not required for cross-examination.

17. As to her excuse, the mother gave oral evidence today. There are no other witnesses in her case. It is her evidence that on each of the dates the children or one of them would have been sick. She does not have an independent recollection of that. It is her evidence that the only reason she ever failed to provide the children was that they were sick. It is the mother’s evidence that she has no medical evidence because she usually manages to care for the sick children without medical assistance. She is their mother and she knows what to do. She says that the children sometimes suffer from vomiting and diarrhoea. When that happens they can be tired and clingy. Again, she does not have any records or recollection of that being the case on all or any of the subject occasions.

18. The legislation sets out examples of what is a reasonable excuse for failing to comply with orders.  They include that the respondent misunderstood their obligations under the orders and the court is satisfied that they should be released on that basis. They also include that the breach of the orders was necessary to protect the health or safety of somebody.  That could include the mother or a child or somebody else. The mother does not come close to making a case in relation to a reasonable excuse. The effect of her evidence is she presumed something from her usual practices; she does not have any evidence of taking the children to a doctor because she does not take the children to a doctor unless the children are very sick. She is the mother and she knows what they need. The onus falls on the mother to establish a reasonable excuse and she has not discharged it.

19. Therefore, the mother has contravened the orders made on 8 April 2009 by her conduct on 22 August 2009, by her conduct on 3 October 2009 and by her conduct on 23 January 2010. Before I released the mother at about 1.00 pm today, I said to her, without any complaint from the father, that I did not understand him to seek one of the criminal-type penalties that are available under the legislation. That is to say that I understood that he did not want the mother incarcerated, that he did not want a substantial fine to be paid to the Commonwealth as a result of the mother’s conduct. I told her that I understood him to seek that the mother comply with the orders and that he would have some make up time.

20. The issue for me is what I should do in relation to the question of a sanction.

21. And ultimately, that is a question for the court.  I suggested to the mother earlier that I might just adjourn the case so that the sanction would be dealt with on another day.  Thinking about the matter over lunch, I am not happy about leaving the question of the form of penalty hanging over the mother’s head. It is not just the parties and the children who are affected here. I have restored the appointment of an independent child lawyer so the taxpayers incurring some costs in the matter.  So it seems to me that a preferable course is to indicate what the sanction should be, but leave implementation of the sanction to accord with fresh orders that are required in the substantive matter.

22. In other words, what I propose to do is to order three makeup occasions, either additional weekends or periods of school holiday time aggregated together to reflect the same amount of time, but that the timing and the conditions under which those additional periods are exercised is to be a matter for the court in the upcoming parenting proceedings.

23. The mother tells me that she has new proceedings in train. Just in case she does not prosecute those proceedings, I will require that the independent child lawyer bring the matter back to court if the mother has not filed an application within, say, two months. It might be if nothing happens the father will have to revisit his attitude and decide whether he wants to take action himself.

24. Stepping back from the particular charges, the mother’s conduct is entirely inconsistent with the orders. The mother declined to give her address when she took the oath today, although her address has been recorded and sealed. That was done on the basis that she says she has fears in relation to the father. The mother has not told the father about the school the children attend;  the mother has not provided any information to him through the school nor has she authorised the school to do so;  the mother has not provided any information through a doctor or authorised a doctor to provide information to the father. Those things are all required by the court orders.

25. It may be that the mother has a proper reason for her fears but she has not sought to have the orders changed. I asked the father whether he had applied for fresh orders and quite rightly, he said – no. The father does not want any change in the orders. The father simply wants the orders enforced, and there is nothing more he can do to have them enforced. 

26. After several years of litigation, the community has invested in orders and the parties have invested in orders and orders have been made. The father simply wants those orders to be complied with. The only person who wants the orders changed is the mother. She feels that half a dozen of the orders are not appropriate and yet she has done nothing to have them varied.

27. Those circumstances are very worrying and are confusing for any agency that has any dealings with the children. The mother assured me today that she has seen a solicitor and an application is being made to amend the orders, and that is as it should be. The outcome of those proceedings is a matter for another day. 

28. These are very unusual proceedings and just the fact of giving reasons and making a decision in the absence of the party affected is very unusual, but it seems to me that in the circumstances it is unfair on the children and unfair on the father unless I progress the matter today.

I certify that the preceding twenty eight (28) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  23 June 2010