Marni and Callaway

[2011] FamCA 1052

FAMILY COURT OF AUSTRALIA

MARNI & CALLAWAY [2011] FamCA 1052

FAMILY LAW – Contravention of parenting orders; reasonable excuse

Family Law Act 1975 (Cth)

APPLICANT: Mr Marni

RESPONDENT: Ms Callaway

FILE NUMBER: MLC 7438 of 2008

DATE DELIVERED: 19 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 December 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the contravention application filed by the father on 2 November 2011 is dismissed.

2. That both parties attend upon a counsellor for privileged counselling concerning the second dot point contained in the recommendations of the family consultant dated 24 October 2011.

3. That for the purposes of paragraph 2 hereof, the Independent Children’s Lawyer nominate three appropriate counsellors whereupon the father shall choose the relevant appointee.

4. That a copy of these orders be delivered to the Independent Children’s Lawyer by post by the court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7438 of 2008

Mr Marni

Applicant

And

Ms Callaway

Respondent

REASONS FOR JUDGMENT

1. This is a contravention application filed by Mr Marni on 2 November 2011.  The respondent is Ms Callaway.  Together, they are the parents of the child, who has just turned 11 years of age. 

2. Orders were made by the Senior Registrar, which I note were not by consent, on 26 October 2011, which provided for the child to spend from Friday, 28 October through to 31 October with her father. 

3. The evidence, which seems relatively uncontroversial, is that sometime in the middle of the afternoon of the Sunday, the child was on a trampoline with her mobile telephone, she jumped off the trampoline and was seen running away.  Her father followed her in his car.  His evidence is silent on what happened then other than the fact that he suspects that the mother somehow or other orchestrated that. 

4. His suspicion, unfortunately, is not borne out by the evidence of the mother.  Her evidence is that, in the afternoon of the Sunday, the child telephoned to her and asked her to come and collect her.  The child was quite distressed, bordering on hysterical.  At a point in time thereafter, the mother drove towards the area, which is about six to eight kilometres away, and turned into a road where she saw a car in the street in which the child was sitting.  The child was in the company of a passer-by who had obviously come to her aid. 

5. No discussion took place between the parents, which is indicative of the nature of their capacity to communicate with one another.  Somehow or other, some other people intervened and suggested that the child be taken home.

6. The question really is whether this was orchestrated by the mother or whether the child took the matter into her own hands.  On the balance of probabilities, which is the standard of proof, I have to be satisfied whether the child orchestrated all this and was quite distressed when she got to her mother or not.  Section 70NAC of the Act provides that a person is taken to have contravened an order if and only if they either intentionally fail to comply with it or make no reasonable attempt to comply with it.

7. Section 70NAE provides that a person may be excused for a number of reasons for not complying with an order.  One of the reasons which is deemed by the Act to be a reasonable excuse is if, in respect of a contact dispute, the contact is stopped for the protection of the health and safety of the child. 

8. The evidence here tends to suggest that the child was quite distressed by what was happening, but subsequent to that particular weekend, contact, to a very large degree, appears to have gone back to normal.  On that basis, I would be prepared to find on the evidence that the mother had a reasonable excuse bearing in mind the state of the child. 

9. This application involves two allegations.  The second relates to the school holidays.  When asked how she pleaded to the allegation, the mother said she agreed contact did not occur but that there were protective issues.  The affidavit filed in support of the contravention application by the father shows no evidence in relation to that incident.  When I asked the applicant about it, he said that he conceded he had not put in the evidence in.  On that basis, there is no reason for me to take the matter any further, and that part of the application is struck out. 

10. On the basis of a finding that there was a reasonable excuse, the application concerning the first matter must be dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin J delivered on 19 December 2011.

Associate: 

Date:  13 January 2012