Mason and Wilson

[2009] FamCA 249

FAMILY COURT OF AUSTRALIA

MASON & WILSON [2009] FamCA 249

FAMILY LAW – CONTRAVENTION – Proven

APPLICANT: Ms Mason

RESPONDENT: Mr Wilson

FILE NUMBER: MLC 6729 of 2007

DATE DELIVERED: 27 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 27 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S.R. Howe

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the allegations set out in paragraphs 2, 3 and 4 of the mother’s Contravention Application filed 13 March 2009,detailed in her affidavit filed the same day, are and shall be dismissed.

2. That the evidence to be given by the mother in relation to her address and status from November 2006 to 19 December 2008 shall be subject to a certificate under s 128 of the Evidence Act (Cth) as attached.

3. That the father has contravened paragraph 2(e) of the Court’s orders date 19 November 2008.

4. That the father shall be fined $250 with a stay of two months.

5. That the mother’s Contravention Application filed 13 March 2009 shall be otherwise dismissed.

6. That there shall be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6729 of 2007

MS MASON

Applicant

And

MR WILSON

Respondent

REASONS FOR JUDGMENT

1. It is obvious that today I have seen only the tip of the iceberg of this case relating to seven year old J and five year old N.  The father Mr Wilson has been very vocal and has expressed his anger at what he perceives as the court's and the system's failings. 

2. Although consent orders for the children to live with their mother and to spend time with their father were made on 19 November 2008, the father is obviously very unhappy about orders made by Young J on 19 December 2008, granting the mother sole parental responsibility for the children, amongst other orders.  He has filed a Notice of Appeal against those orders.  The hearing of his appeal is currently pending.  The father has also expressed some displeasure today about the consent orders.  I do not believe there is any appeal about those, but he did express some displeasure towards the end of the hearing today. 

3. The only application before me today is the mother's contravention application filed on 13 March 2009, supported by her affidavit filed the same day.  For that reason I refused the father’s oral application earlier this morning that I meet with the children to discuss a shared‑care arrangement today.  I am concerned I must say that to that end he collected the children from school and brought them to court.  That is inappropriate and, under the orders, it is not his time with the children in any event. 

4. For those reasons, and when he threatened today to take the children from the court, I acceded to the oral application of counsel for the mother to order that the children not be removed from the child-minding room and later made an order that only the mother was permitted to remove them at lunch time.

5. In any event eventually I was able to start the contravention application.  Although the father did not appear to disagree that he had been served with the papers he did not have the relevant documents at court.  He is unrepresented and so I had copies made for him.

6. Chapter 21 of the Family Law Rules applies to contravention proceedings, and I refer specifically to Rule 21.8 as to the procedure to be applied.  As a starting point, under Chapter 21, a party must file an application and an affidavit stating the necessary facts to enable the order sought.

7. Given the serious consequences that can flow from a finding of contravention it is important to specifically follow the Rules.  That said, if natural justice and procedural fairness for the accused person is not impaired, then there is some latitude to waive or vary a Rule.

8. I was satisfied that a small degree of latitude was appropriate in this case in the following limited respect.  In her application, rather than articulating the precise contraventions, the mother referred directly to her affidavit.  In her affidavit she clearly set out what she was contending were the relevant contraventions.  It is not the conventional way of setting out an application for contravention but it in no way disadvantaged the father.  However, the evidence in support of Counts 2, 3 and 4 was not in themselves sufficiently clearly stated and accordingly I dismissed those counts a little earlier today.

9. Only one count remains.  It is that on 25 December 2008 the father failed to return the children at 1 pm as stated in paragraphs 2(e) and 2(f).  Everyone has properly conceded that the consent orders being referred to are the first lot of orders made by Young J, on 19 November 2008. 

10. Although the mother has referred to paragraphs 2(e) and 2(f) of those orders, it is clearly only 2(e) that is relevant.  Paragraph 2(e) relates to Christmas Day time on even years - such as 2008.  Paragraph 2(f) relates to odd years.  The father is not disadvantaged by my ignoring the reference to paragraph 2(f).  It is simply irrelevant.  So proceeding on the basis that it is paragraph 2(e) of the orders that it is alleged he contravened, as required under the r 21.08 procedure that I have referred to, I asked the father if he admitted or denied the allegation.  He denied it saying that the mother had agreed with him that he could return the children later than 1 pm on Christmas Day, the time required under the order.  He said they had agreed that he could return them at 5 pm.

11. The mother gave evidence and was cross-examined by the father.  The father gave evidence and was cross-examined by counsel for the mother.  Each side then made submissions to me. 

12. The mother says that all communications were conducted between herself and the father by SMS messaging, as per paragraph 5 of Young J's orders of 19 November.

13. The father says she is lying, that she agreed he could bring the children back at 5 pm, she has been selective in the messages she has included in her affidavit, and she has lied for various reasons, including to protect her partner, Mr B, in other respects unrelated to this Christmas Day aspect, or she has lied in order to ensure that she has more time with the children in order to gain higher Centrelink payments.

14. What is clear from the communications as set out in the mother's affidavit is that as late as the evening of 23 December, bearing in mind the father was to collect the boys the next day, it does not seem the mother agreed to any changes in the existing orders. 

15. In response to the father’s apparent request for longer time on Christmas Day she in fact replied to him in a message on 22 December 2008 at 2.50 pm which simply read, "Contact as laid out in orders." 

16. In response to his email at 3.03 pm on 22 December 2008 in which he stated:

    Thank you, Mother Superior, for actually deigning to descend from your cloud of oblivion to finally reply.  Are you in pain?  The only order made was that you supposedly have sole res.  All other orders are extinguished by your demanding that order.  Consent orders require consent.  You do not have my consent.  We have no agreement on anything.  I do not want boys' Christmas lunch disturbed by you calling cops on Xmas Day.  After that we have no agreement and boys and I dispute and deny this absurd and dangerous and unworkable order.

17. At 3.15 pm, that is some 12 minutes later, she replied:

    Contact as laid out in sealed orders. 

18. Thereafter the father sent emails at 3.30 pm on 22 December, at 12.38 pm on 23 December, and at 5.07 pm on 23 December.  The most pertinent was the SMS at 12.38 pm, which read:

    Any obs to [the children] having Christmas lunch with their dad?  No objections?  Any goodwill?  Any obs to return 5 pm Christmas Day?  There's still five hours' daylight left.  No" [although it is actually written "Nn"]  "C'est bon.  Thanks for being a good sport and not going crazy or making a scene.  Merry, aren't we, [name]? and full of goodwill towards all men.

19. He sent another message at 5.07 pm, saying:

    Robot to robot, please confirm ETA. 

20. The mother’s response at 8.42 pm read, "I have made all plans within the framework of the orders and intend to proceed in this way." 

21. At 9.09 pm, still on 23 December, he replied:

    Have made plans to enjoy Christmas lunch with my family.  You can have dinner.  That's fair.  You don't seem to understand.  There are no consent orders without my consent.  Why not be kind.  You could apply compassion like the baby Jesus.  […].

22. Thereafter at 1.19 pm on 25 December 2008, when the children had not been returned at 1 pm, the mother wrote:

    As you've not brought the boys back, as laid out in the orders, and as I have not heard from you, I will assume you've planned to bring them back at 5.00. 

23. He replied, some hours later, at 4.06 pm: "Of course." 

24. That really covers what is significant.

25. The parents' evidence is diametrically opposed.  The mother says the only communication was in those SMS messages; the father says that there were other communications which have not been included and were by way of telephone calls in which there was an agreement between them.  I accept the mother's evidence.  She gave several what I regard as spontaneous heartfelt and entirely logical answers to questions on the topic.

26. I just note for the transcript that the father is now leaving court.  He is entitled to do that but I will continue to deal with him in his absence.  I will make an urgent order, that the children not be removed from the child-minding room by anyone other than the mother.  My court officer is conveying that but I want to finish my decision.

27. The heartfelt answers that she gave that I was just referring to arose when she said that having just had these orders made in December there was no way that, within a short space of time, she was going to start making arrangements directly with the father without going via the court orders.  For her the important aspect was to have those court orders and to comply with them.

28. The tenor of the messages supports her version, not his.  At one point the father said, "Well, how did she know about 5 pm, or make any reference to 5 pm, if she hadn't agreed to it?"  In my view, the answer is simply suggested by looking at his own message of 12.38 pm on 23 December when he himself referred to 5 pm.  It is clear from the message, in context, that he was talking about what he wanted not what they had agreed.

29. It is evident in the SMS messages that the mother was repeating a number of times that the orders were to be complied with.  When he had the opportunity, the father would not and could not offer any time or details about phone calls that he said occurred, or any other details about what happened beyond the SMS messages.

30. I am satisfied that he has contravened the order and has no reasonable excuse for doing so in accordance with the provisions of the legislation.  I find that the father has contravened paragraph 2(e) of the court's orders dated 19 November 2008.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  27 March 2009