MAIRIE & MALAK

[2012] FamCA 1095

FAMILY COURT OF AUSTRALIA

MAIRIE & MALAK [2012] FamCA 1095

FAMILY LAW – CONTRAVENTION – reasonable excuse

Family Law Act 1975 (Cth)

APPLICANT: Ms Mairie

RESPONDENT: Mr Malak

FILE NUMBER: MLC 2355 of 2010

DATE DELIVERED: 19 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 October 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the application for contravention filed by the father on 2 August 2012 is dismissed.

2. That the mother’s application filed 16 August 2012 is adjourned to 10.00am on 29 November 2012.

3. That paragraph 14 of the orders made on 8 April 2009 is suspended until further order.

AND THE COURT NOTES

A.The father has indicated he is unavailable because of other court commitments on 29 November 2012 and he is to discuss that issue with the other litigants and advise the mother whether he and they are seeking an adjournment of the hearing on 29 November 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mairie & Malak 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 2355 of 2010

Ms Mairie

Applicant

And

Mr Malak

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Malak, (“the father”) to have Ms Mairie (“the mother”) dealt with by the court for contravention of two orders.  The first order was made by Brown J on 8 April 2009.  The relevant provisions in that order are that the mother keep the father advised in writing of the residential address of the children, the schools or school that they attend and the telephone number at which she can be reached in an emergency and also to advise him forthwith of any significant illness or accident suffered by the children.

2. That allegation, which is said to have arisen on 21 June this year.  The mother denies the breach occurred at all.  Having regard to the fact that she is unrepresented by a lawyer and does not appear to have had any legal advice about this, I will accept that she also has the option open to her in not only of denying the allegation, but also falling back on the defence of reasonable excuse.  The second order alleged to have been breached was an order that I made on 24 November 2011.  Under that order the mother was required to provide instructions to the principal of the children’s school to send to the father upon his request and at his expense, school reports and photographs, obviously relating to the children.

3. There can only be one interpretation of that order and that is that in the event that the father sought from the principal of the school any of those details then the principal had an obligation subject to the contractual right of the school to refuse.  The mother’s obligation under the order was simply to provide instructions to the school that if that request was made, as far as she was concerned, she was obliged to agree.  It still leaves the responsibility for that issue in the hands of the principal of the school.  Be that as it may, the allegation in relation to that order is that on 17 June this year, the mother, without reasonable excuse, refused to provide those instructions.  Dealing with that particular allegation first, the evidence is, in my view, simple and clear.  The mother says that, having received the order, she gave instructions to her mother, whose affidavit I have and which was not challenged, to provide a copy of the order to the primary school and that was done.

4. I do not see how there can be any further need for her to give any instructions, other than to provide the order to make clear to the school what her position was.  I have little doubt her position was that she did not want the father to have any of those details or documents but what she was doing was following the Court order;  on that basis, that allegation must fail and it must be dismissed. 

5. The second allegation, which is really the first of the two that I mentioned, concerns the breach of the orders of 2009.  I did not discharge that order in 2011 and there can be little doubt that, at that time, there were criminal proceedings pending against the father.  My clear impression on that day was that they were disputed issues and very controversial.

6. Subsequent to that date, no doubt after getting some legal advice, the father has pleaded guilty to charges that he described in evidence as child pornography and sexual assault, the youngest victim of which was between the ages of two and three at that time. 

7. There is little doubt that what the mother provided to the father was a notice of address for service, which set out a post office box.  She has given evidence today that the post office box is something that she accesses daily and there is also, attached to the notice and also to her affidavit, a mobile telephone number which, should the father have access to a telephone line, he could telephone her.

8. There can be little doubt, therefore, that that is not, strictly speaking, a compliance with paragraph 14 of Brown J’s order.  There is little doubt in my mind that it is within the spirit of the order.  The reason why the mother has not complied strictly with the order is that she says that she fears that the children are at risk.  That risk arises out of the fact that the father has now pleaded guilty to charges of a serious nature and no doubt is awaiting sentence and/or has been sentenced in relation to those particular offences. 

9. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) requires that a person not only comply with an order but that they will have contravened it if, by being bound by the order, they intentionally fail to comply with the order or make no reasonable attempt to comply with the order.

10. There is some doubt in my mind as to whether or not what the mother has done here was a reasonable attempt to comply with paragraph 14 of the 2009 order but even if I was troubled about that, I then turn to section 70NAE.  That provision says that where a person has not complied with an order, if they have a reasonable excuse for contravening an order, then the court is entitled to dismiss the application.  The evidence of the mother is that she complied, probably, in the spirit of the order, by providing the post office address and certainly the telephone number but her explanation is that she feared for the safety of the children.

11. In circumstances where the father admits to offences relating to children, I can understand why someone would be very concerned about letting the father of those children, who has admitted the offences, being put in a position where that information is provided to them.  In fact, in some senses, it might even be an irresponsible parenting step to do so.  In my view, I would be comfortable in saying, in this case, that the mother has a reasonable excuse for contravening the order.  In addition to that, it seems clear that the father concedes that he is not in a position to go anywhere near the children, which makes the question of the details that he would be seeking and/or provided under paragraph 14 of the order somewhat unnecessary.  In my view, there is a reasonable excuse in this case and I propose to dismiss that allegation as well.

12. I have also before me an application by the mother, which has been listed today and I have been told that there are proceedings brought by other relatives of the father listed for the end of November.  I think it makes sense to have all of those matters consolidated and heard on the one day.  Accordingly, the application for contravention filed on 2 August 2012 was dismissed.  The mother’s application, initiating proceedings, which was filed on 16 August and listed today is adjourned to 10 am on 29 November 2012.

RECORDED  :  NOT TRANSCRIBED

1. To avoid problems in the future, I propose to suspend paragraph 14 of the orders of 8 April 2009 until further order.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 October 2012.

Associate: 

Date:  12 December 2012