Maeraegh and Salter

[2012] FamCA 539

FAMILY COURT OF AUSTRALIA

MAERAEGH & SALTER [2012] FamCA 539

FAMILY LAW – ORDERS – Contravention – four contraventions of orders proven

APPLICANT: Mr Maeraegh

RESPONDENT: Ms Salter

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3427 of 2010

DATE DELIVERED: 21 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 21 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

So the orders that I will make today are:

1. That the four contraventions of orders alleged by the father in his application filed 4 April 2012 are proven.

2. That the question of sanctions is adjourned before me at 10.00am on 16 July 2012.

3. That the Reasons for Judgment given this day shall be prepared with expedition, kept on the Court file and a copy provided to each party.

4. That all questions of the father’s costs shall be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Maeraegh & Salter 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 MELBOURNE

FILE NUMBER: MLC 3427 of 2010

Mr Maeraegh

Applicant

And

Ms Salter

Respondent

REASONS FOR JUDGMENT

1. Final parenting orders were made in this Court in relation to five year old F (“the child”), by Mushin J on 4 March 2011.  They provided for equal shared parental responsibility, allowed for Ms Salter (“the mother”) to relocate the child to Scotland, provided for him to live there with the mother, and for Mr Maeraegh (“the father”) to spend time with him.  

2. Pursuant to those orders, the mother relocated with the child to Scotland on 1 May 2011.  Mushin J made an order for the parents to do what was necessary to register the orders in Scotland.

3. The case came before me on 11 August last year.  I varied Mushin J’s Orders to provide specific times for the father to see the child in October 2011 and Easter 2012, and I replaced paragraph 17 of the Orders, the registration provision, as it had been ascertained that there was no capacity to register the Australian orders in Scotland. 

4. The new order provided that the parties, at their joint expense, do all that was necessary to obtain orders of identical effect to the Australian orders as amended.  The mother was to commence the process within 14 days, advise the father in writing of the process and the anticipated expense, and was to make all reasonable efforts to ensure the expeditious completion of the obtaining of orders.  She was also to ensure that any legal bills were sent to both parties. The father then withdrew the Contravention Application that he had filed on 29 June 2011.

5. Today, I have the father’s Contravention Application filed 4 April 2012, accompanied by his affidavit, filed the same day.  It came before me on 23 April 2012, but was adjourned as the mother had exams in Scotland.  That adjournment was to accommodate her.

6. The father alleges four breaches. 

7. The first is that, on 26 August 2011, the mother did not obtain or attempt to obtain the order, did not advise him in writing of the process or the anticipated expense, and that she refused to comply despite numerous requests, in contravention of paragraph 17 of the Orders of 4 March 2011, and paragraph 5 of the Orders of 11 August 2011. 

8. He alleges, secondly, that on 10 October 2011 he was denied contact with the child, contrary to paragraph 6(a)(1.3) of the Orders of 4 March 2011. 

9. He alleges, thirdly, that on 2 January 2012 he was denied contact with the child when the mother refused to deliver him to Germany in accordance with paragraph 7(a)(1.2 and 3) of the Orders of 4 March 2011, and paragraph 3 of the Orders of 11 August 2011.

10. And he alleges, fourthly and finally, that between 11 November 2011 and 29 March 2012, he was denied contact by telephone, Skype, email, photographs, mail and DVDs, contrary to order 14 of the Orders of 4 March 2011. 

11. The procedure that I have followed today is the procedure set out in r. 21.08 of the Family Law Rules.  I did allow some amendments to the father’s application, satisfied that there was no prejudice as a consequence. 

12. The mother denied each allegation.

13. The father gave evidence.  She cross-examined him.  She then gave a response to each charge. 

14. In relation to the first charge, she said that he was incorrect, that the process to obtain orders in Scotland had been commenced, and she had a solicitor working on having those orders made there. 

15. In relation to the second charge, she said that she made the child available to see his father every single day in the October visit, that it became very strained, that the father left for Germany, and he did not return.  She said that he definitely saw the child whilst he was there, but she had no enforceable orders in Scotland, and accordingly was advised that the father should not be alone with the child.

16. In relation to the third charge, she said again that she had advice that she should not leave the country with the child, until she had orders in Scotland, and she assumed he had been told that.

17. And in relation to the fourth charge, she said that it was incorrect, that he had received photos and had Skyped, and that she had provided all that contact to the best of her ability.

18. The mother declined to give evidence, she said on the advice of her lawyers in Scotland. 

19. I note she had sent an affidavit to the court on 20 April 2012, when requesting an adjournment of the previous proceedings.  It went beyond just the information for the adjournment application, and ventured also into the substantive issues.   I do not believe that it was filed as such, but in any event, as she has not been cross-examined, I proceed on the basis that effectively the evidence of weight before me is the evidence of the applicant.  Naturally, though, it is the answers to questions that is the evidence before me, and not the questions themselves.

20. The legislative framework is as follows. Under S 70NAC of the Family Law Act, a person is taken to have contravened an order if he or she has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order without reasonable excuse. 

21. Section 70NAE of the Act deals with a reasonable excuse for contravening an order.  It is not exhaustively defined.  It includes the respondent’s belief, on reasonable grounds, that the actions constituting the contravention were necessary to protect the health or safety of the child. 

22. The applicant must prove this case on the balance of probabilities.  The onus shifts to the respondent when it comes to reasonable excuse.

23. Dealing, then, with the first charge.  In his affidavit, the father swore at paragraph 9:

    The mother has not complied with this requirement.  She has not made any attempt to register the orders in Scotland, and has refused various requests for her to do so by myself and my legal representatives in Scotland.

24. In cross-examination he made concessions that cast a different light on the situation.  He agreed that the mother had in fact engaged a solicitor who was instructed to take care of her obligations to obtain orders in Scotland.  He agreed he was told of that in August 2011.  He agreed he obtained his own solicitor in Scotland in October 2011.  He agreed that he received the advice that the orders could not be registered as such.  He was aware that the mother had applied for legal aid but had been refused.  He agreed that the solicitors exchanged correspondence.  Otherwise, though, he said he never received the basic information from the mother or her legal representatives as to the process, the anticipated expense or its progress.  He agreed he had seen the refusal of the mother’s application for legal aid dated 16 March 2012, but could not be satisfied, given the date, that she had been acting expeditiously. 

25. I am satisfied that the mother has not fully complied with paragraph 5 of the orders of 11 August 2011.  The father, in his affidavit, overstated the extent of her non-compliance.  She evidently did engage a solicitor and advised the father of that in August.  He could not say when, so I do not infer it was after 26 August 2011.  Solicitors were in contact, but failing her giving evidence, I accept the father’s account that the mother had not complied with some details of the order as set out above. 

26. I have no true understanding as to why nine months have elapsed without orders being obtained, whether or not the mother was refused legal aid.  The fact that she has gotten the process started mitigates any sentence or sanction, but I find the charge proven, at least as to some of the detail and actions that she has failed to take. 

27. Charges 2 and 3.  In relation to Charge 2, relating to when the child was meant to be in the father’s care in October 2011, the mother’s response made it clear that she ensured that the father could see the child each day in the presence of family members, but she did not hand him over on legal advice, given she had no enforceable orders in Scotland. 

28. She also said that the father was aggressive, so that things became strained.  He denies any aggression.  She has not given evidence.  In those circumstances, I accept his account.  She may well have had advice not to hand the child over.  The father denies correspondence between solicitors to that effect.  I have no direct evidence from the mother.  She simply did not hand the child over.  The onus is on her to establish a reasonable excuse.  There is no basis for me to find a risk to the child’s health.  The risk she alludes to is the father failing to return him to her.  Other than jurisdictional issues, she established no basis of concern in that regard in fact.  I find the charge proven.

29. The same reasoning applies to Charge 3.  In her response to me, she said she “assumed” that the father had been told that without orders in Scotland, she was advised not to leave the country.  Again, that is not sufficient, on her assertion alone, to satisfy me of a reasonable excuse. 

30. Concerns about the jurisdictional issues may well play into mitigation though, when it comes to sanction.  

31. As to Charge 4, the father’s account is that between 11 November 2011 and 29 March 2012 he had only one Skype contact with the child, the day after the child’s birthday.  In cross-examination he conceded several occasions when the mother’s sister had tried to Skype him, but his Skype was not on.  Otherwise, he said, there were many occasions when he tried to make contact, and in that period, except for the one occasion, none of the Skype calls, or email correspondence, photographs or DVDs provided for under the orders were in fact received.

32. In the absence of evidence to the contrary, I accept his evidence and find the charge proven.

33. That will bring me to the question of sanction, and each party may address me on that, but I will at least foreshadow some issues given that they are each unrepresented. 

34. I may order a person to attend a post-separation parenting program.  I am not satisfied that would be helpful in this case, given the complexities of the international enforcement proceedings which really are to the fore.  Nor is make-up time as such.  It just feeds back into the jurisdictional issues. 

35. The child is only five.  The current orders were carefully crafted before Mushin J to give the child time with his father without too much time away from his mother, to cope best at his age and stage.  Adding time today is unlikely to be the answer at this stage. 

36. I could require the mother to enter a bond.  Given her position, as she has described it, and for this purpose it need not be on oath, it is impossible to imagine that she could enter a bond, to agree to the very things she says she is trying to do but has not been able to achieve. 

37. I could order that she pay costs incurred by the father in these proceedings.  He is, however, representing himself, so that provision does not seem to be relevant.  In any event, she is studying an accelerated degree, and at least on what she has said in the course of the hearing, she would not have money at her disposal.  Otherwise I can adjourn the proceedings to allow either or both of the parties to apply to discharge, vary or suspend the substantive parenting orders. 

38. It is impossible not to recognise the awful predicament of the father.  His little boy has been relocated to Scotland.  He has not had the benefit of orders to spend time with him, although the detail was agreed by the mother before she left.  He had, he thought, the protection offered by Mushin J that these orders would be registered in Scotland.  It transpired that they could not be registered.  There is no provision for that to occur in Scotland.  The amendment I made to try to effect his Honour’s order, for the parties to obtain orders in Scotland as close as possible to the Australian orders, has also run into difficulties, at least according to the mother.

39. In the meantime, I now know that three months ago, the father commenced proceedings under the Hague Convention, I would have thought a most appropriate course to adopt.  He says he now has legal representation in Scotland, and he is in the course of receiving advice. 

40. So, subject to any submissions of the parties, I would propose adjourning the sanction in this case until 16 July 2012.  The father can ascertain the advice that he seeks from the legal representatives in Scotland. 

41. The mother needs to understand the risks for her if it is considered the child should be returned to Australia under the Hague Convention for determination of issues in this jurisdiction.  However, if she proposes a variation to the existing orders in this court, she has the opportunity to file an application in this Court within those next few weeks for an orderly determination of matters. 

    ORDERS DELIVERED

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 21 May 2012.

Associate: 

Date:  21 May 2012