Manrow and Manrow

[2017] FamCA 104

FAMILY COURT OF AUSTRALIA

MANROW & MANROW [2017] FamCA 104

FAMILY LAW – CONTRAVENTION – Where the father alleges seven contraventions of parenting orders by the mother – Where the father withdrew two of the alleged contraventions – Where one alleged contravention was not adequately formulated and therefore dismissed – Where the Court considered four alleged contraventions – Where the applicant was unable to establish a prima facie case in relation to all alleged contraventions – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Manrow

RESPONDENT: Ms Manrow

FILE NUMBER: SYC 7667 of 2012

DATE DELIVERED: 28 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 9 February 2017

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Mr Dowdle

l

Orders

1. The Application – Contravention filed by the father, Mr Manrow, on 22 July 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Manrow & Manrow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7667  of 2012

Mr Manrow

Applicant

And

Ms Manrow

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 22 July 2016 the applicant father, Mr Manrow (“the applicant”), filed an Application – Contravention. The applicant alleged seven contraventions of Orders made, by consent, on 28 January 2015 on the part of the respondent mother, Ms Manrow (“the respondent”).

2. It was readily apparent that it was impossible to formulate a charge to be put to the respondent in relation to three of these alleged contraventions. The applicant failed to specify a time and date of the respondent's alleged contravention of Orders 22.2 and 22.3. The applicant entered "ongoing since 28 January 2015" for "date" and "ongoing" for "time".  Similarly, the applicant entered "ongoing" for both "date" and "time" in relation to alleged contraventions of Orders 19.3 and 19.4. When I explained this difficulty to the applicant, he agreed to withdraw these two counts.

3. The applicant alleged a contravention by the respondent of Order 25, which provides as follows:

   25.That for the purposes of changeover when this is not to occur at the children's school, the Husband shall collect the children from the Wife's residence at the commencement of his time with the children, and the Wife shall collect the children from the Husband's residence at the conclusion of his time with the children, unless otherwise agreed between the parties in writing.

4. The applicant's "statement of the alleged contravention" in respect of Order 25 read as follows:

   [Ms Manrow] did not let [Ms C] pick up the children as she claimed that this order requires the permission of both parents to elect another party to pick up the children, but then by [Ms Manrow's] own interpretation of this order, she therefore breached this order herself when she asked her sister [Ms H] to collect the children from my house on 28/09/2015. Refer to Paragraph 16.2 in my affidavit.

5. Paragraph 16.2 of the applicant's affidavit contained nothing which could assist further with the formulation of a charge to be put to the respondent. This paragraph read as follows:

   Amendment of Order 25 to be amended to "the Husband or a party designated by the Husband, and “the Wife or a party designated by the Wife".  This is because [Ms Manrow] contravened the court orders by not allowing me access to [N] and [J] at 9am on 12 January 2016 when [Ms C] attempted to collect them, claiming it was because Order 25 requires her permission for anyone but me to pick up the children, and she refused this permission. However, on September 28 2015, [Ms Manrow’s] sister picked up the children without my permission – consequently [Ms Manrow] is flexible with her interpretation of the current wording of this order to suit her desires.

6. I indicated to the applicant that I was unable to formulate a charge arising from the material contained in this paragraph and his Application – Contravention.  On its face, Order 25 makes clear that the parties themselves are to collect and return the children, unless otherwise agreed in writing. There was no suggestion whatsoever of any "agreement in writing" between the parties and no indication of any refusal on the part of the respondent to hand the children to the applicant. Accordingly, I will dismiss this count.

7. I thus put to the respondent charges of contraventions of Orders 19.1.2 on 8 June 2015; Order 36 on 16 April 2015; Order 19.2.2 on 14 September 2015 and Order 19.5 on 15 January 2016. The respondent denied all of these alleged contraventions.

8. The father's affidavit in support of his Application – Contravention was

   
   

   wide-ranging and made reference to alleged events well beyond the scope of the seven counts which he levelled against the respondent. In this affidavit the father also purported to seek fresh Orders in relation to many issues, including financial matters.

Alleged contravention of Order 36 on 16 April 2015

1. Order 36 provides as follows:

   36.That each of the Husband and the Wife notify the other as soon as practicable in the event that either of the children suffers any illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment.

2. The applicant's "statement of the alleged contravention" in respect of this count read as follows:

   Refer to Section 17.2 of my affidavit.  On 17 April 2015, [Ms Manrow] advised me the day after [B] had attended a hospital, which is not "as soon as practicable" in accordance with Order 36.

3. The only admissible evidence in the applicant's affidavit which related to this alleged contravention was as follows:

   17.2On 17 April 2015, I learned to [B] had fractured her wrist the day before and had attended hospital via a text message from [Ms Manrow]:  "[B] fell off her skateboard yesterday, probable fractured scaphoid bone.  Cast for 10 days, then x Ray again".

4. There was no evidence that B had received specialist medical treatment or attended a hospital on 16 April 2015. In cross-examination the applicant was shown a text message which he and the respondent exchanged on

   
   

   17 April 2015. The applicant was shown further a certificate of B's admission to hospital at 10.33 am on 17 April 2015.

5. The respondent's text messages to the applicant on 17 April 2015 were sent at 10.03 am and 11.22 am. These text messages read as follows:

   17 Apr 2015, 10.03 AM

   [B] fell off her skateboard yesterday, probable fractured scaphoid bone.  Cast for 10 days, then x Ray again.

   17 Apr 2015, 11:22 AM

   Cast is on, advised not get CT scan yet, even if there is no fracture they would still splint it for 10 days considering the bony tenderness. I'll send you a copy of Drs report when we get home. [B] in good spirits tho.

6. The respondent advised the applicant of B's attendance at hospital on that same day. Her first text message was sent at 10.03 am and B was admitted to hospital of 10.33 am. The respondent then sent a text message to the applicant at 11.22 am, in which she advised him of the progress of B's treatment. I can see no basis upon which I could find that the applicant established a prima facie case that the respondent contravened Order 36 on 16 April 2015. I will dismiss this count.

Alleged contravention of Order 19.1.2 on 8 June 2015

1. Order 19.1.2 read as follows:

   19.      That the children shall spend time with the Husband as follows:

   19.1     During school term with respect to [N] and [J]:

   …

   19.1.2From commencement school term 4 in 2015 and thereafter, each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday;

   …

1. In his "statement of the alleged contravention" the applicant contended:

   Refer to section 16.3 of my affidavit.

   [Ms Manrow] took the children from me from my home on my weekend with them, despite the children due to be with me "until the commencement of school" in accordance with Order 19.1.2. [Ms Manrow] drove to my home (which is not visible from the road) on Sunday 7 June 2015 and texted me that "It was quite obvious when I drove home from [Suburb I] that you are in [K Town] with the children"  I had actually left the house with the children in order to avoid [Ms Manrow’s] contravening by collecting the children during my time with them.  [Ms Manrow] threatened me with an implied police visit and took the children from me the following day which was on a long weekend, prior to the commencement of school.

2. In cross-examination the applicant confirmed that he agreed to return the children to the respondent on Monday, 8 June 2015. The applicant said:

   I assume the children were returned … about 4.00 to 5.00 pm that day.

   He said that the applicant wished to collect the children at 9.00 am and that he had indicated that he would return them on the following Tuesday morning.

3. It may be that the applicant was influenced to agree to return the children on 8 June 2015 by a threat on the part of the respondent to involve police. The fact is, however, the relevant Order states:  "commencement of school on Monday" and is silent as to any extension to Tuesday morning in the event of a public holiday. Accordingly, the Order itself does not support the applicant's contention that the appropriate time for return of the children was Tuesday morning. Further, the applicant agreed to return the children on 8 June 2015.

4. In these circumstances, I am of the view that the applicant failed to establish a prima facie case that the respondent contravened Order 19.1.2 on 8 June 2015.  I will dismiss this count.

Alleged contravention of Order 19.2.2 on 14 September 2015

1. Order 19.2.2 reads as follows:

   19.      That the children shall spend time with the Husband as follows:

   …

   19.2     During school term with respect to [B]:

   …

   19.2.2Upon the expiration of Order 19.2.1 hereof and thereafter, [B] shall be at liberty to elect to spend time with the Husband as follows in lieu of the time referred to at that Order on one weekend in every four (4) week cycle, such weekend to coincide with the time the children [N] and [J] are spending with the Husband pursuant to Order 19.1 hereof;

   …

2. In his "statement of the alleged contravention" the applicant contended:

   Refer to paragraph 18.1, 18.2 of my affidavit. [B] was due to spend a minimum of four days with me during school holidays in accordance with court orders, however [Ms Manrow], after being advised that I was taking the children skiing for a week, attempted to indirectly contravene the orders by not making [Ms Manrow] available to me until the middle of the skiing holiday, which would necessitate a twelve hour drive.

3. In cross-examination, the applicant conceded that B in fact spent four days with him in September 2015. He also conceded that he sent a text message to the respondent on 18 September 2015, in which he changed the agreed arrangement due to his personal circumstances. This text message read as follows:

   The situation has changed since my last email . If I go skiing with the children it will not now be until Tuesday, if at all ,until Saturday next week. [Ms C] has been diagnosed with cancer and as [a health professional] I will be attending the surgical planning meeting on Monday. There may be later changes to my parenting schedule depending on the timing of surgery. [Ms C] is adamant that I continue to take the children skiing during their school holidays for at least two or three days so as not to deprive them.However this is under review.

   Regards

   [Mr Manrow]

1. In cross-examination the applicant stated:

   I say that [the mother] was not allowing [B] to choose dates.

   In his submissions the applicant said:

   Technically I got the days but there was an intention to breach …

   Obviously, an "intention to breach" does not amount to a contravention of Order 19.2.2.

2. In my view, the applicant failed to establish a prima facie case that the respondent contravened Order 19.2.2 on 14 September 2015. I will dismiss this count.

Alleged contravention of Order 19.5 on 15 January 2016

1. Order 19.5 reads as follows:

   19.      That the children shall spend time with the husband as follows:

   …

   19.5During school holiday periods with respect to [B], such time shall coincide with the time N and J are to spend with the Husband pursuant to Orders 19.3 and 19.4 hereof however [B] shall be at liberty to elect to spend time with the Husband as follows in lieu of that time as follows:

   19.5.1For one block period of four (4) days during the school holiday periods falling between New South Wales school terms 1 and 2, 2 and 3, and 3 and 4; and

   19.5.2For two block periods of four (4) days during the school holiday periods falling between New South Wales school terms 4 and 1.

2. The applicant tendered a series of emails exchanged by the parties in relation to B's time with him in January 2016 (Exhibit 1). It was common ground that text messages were exchanged between the applicant and B in relation to this school holiday period. These text messages were not in evidence.

3. In cross-examination the applicant conceded that the parties reached an agreement in November 2015 concerning B's time with him during the 2015/2016 Christmas School Holidays.  He said:

   [B] moved the time.

   In his submissions the applicant said words to the effect:

   arranging overseas relatives means that the respondent intended to block time beyond four days.

4. In light of the applicant's concessions to the effect that the parties reached an agreement in November 2015 and that B "moved the time", I conclude that he failed to establish a prima facie case of a breach by the respondent of Order 19.5 on 15 January 2016. I will dismiss this count.

Conclusion

1. It thus follows that the Application – Contravention filed on 22 July 2016 must be dismissed in its entirety.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 February 2017.

Associate: 

Date:  28 February 2017