Mayfield and Parran

[2008] FMCAfam 1541

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAYFIELD & PARRAN [2008] FMCAfam 1541

FAMILY LAW – Contravention of parenting orders – orders consequent on findings of contravention without reasonable excuse – compensatory time – children’s best interests.

Family Law Act 1975, Part VII, Division 13A, Subdivision E

Applicant: MR MAYFIELD

Respondent: MS PARRAN

File Number: PAC 6002 of 2007

Judgment of: Halligan FM

Hearing dates: 19 June 2008, 12 August 2008 &
18 November 2008

Date of Last Submission: 18 November 2008

Delivered at: Parramatta

Delivered on: 18 November 2008

REPRESENTATION

Counsel for the Applicant: Mr Cook

Solicitors for the Applicant: Delaney Lawyers

Solicitors for the Respondent: In Person

ORDERS

1. The mother contravened the parenting orders made by the Family Court of Australia on 23 December 2005 without reasonable excuse on 28 September 2007, 19 October 2007, 2 November 2007, 16 November 2007, 30 November 2007, 14 December 2007 and 21 December 2007;

2. Pursuant to s.70NEB(1)(b), in addition to the time the father spends with the children X, born on (omitted) 2000, and Y, born on (omitted) 2002, under the orders of the Family Court of Australia made on 23 December 2005, the father shall spend time with the children:

   (a)from after school Friday to before school Monday on weekends commencing 20 March 2009, 8 May 2009, 5 June 2009, 19 June 2009 and 21 August 2009;

   (b)from 10 am on 21 December 2008 until the commencement of the father’s time with the children during the Christmas 2008/2009 school holidays under the said orders of 23 December 2005; and

   (c)for the second half of the school holidays at the end of Term 2 2009, noting that the father is to spend time with the children for the first half of those holidays under the said orders of 23 December 2005.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 6002 of 2007

MR MAYFIELD

Applicant

And

MS PARRAN

Respondent

REASONS FOR JUDGMENT

1. This is the conclusion of the hearing of the father’s contravention application against the mother.  The hearing has continued over two prior days, 19 June and 12 August.

2. On 12 August, for reasons I then gave, I found that the mother had contravened orders of the Family Court of Australia of 23 December 2005 without reasonable excuse on seven separate occasions when the children under those orders were to have spent time with the father but did not.  Those occasions were: 28 September 2007, when the children were to spend half the school holidays with the father; 19 October; 2 November; 16 November; 30 November, and 14 December 2007 when the children were to spend the weekend with the father; and on 21 December 2007, when the children were to have spent one half of the Christmas school holidays with the father.

3. The further alleged contravention in relation to changing the child Y’s name has been withdrawn.

4. I must now determine the orders that should be made consequent upon my finding on the last occasion.

5. The father suggests that the matter falls under Subdivision E of Division 13A of Part VII of the Family Law Act, that is, contraventions without reasonable excuse where the contravention is not a second or subsequent contravention of the same order or does not involve a serious disregard of obligations under the order.

6. The father seeks make-up time spread over a significant period.  He proposes that he have most of the half of the school holidays commencing this year that he would not be entitled to under the 2005 orders; that he have make-up time, in addition, on five specified weekends in 2009 between March and August when the children are not otherwise to be with him; or an additional three nights added to his period of time with the children in the school holidays commencing in December 2009; and effectively for the balance of the Term 1 2010 holidays that he would not be entitled to under the 2005 orders.

7. It is put that the father, in addition to the five weekends, has lost

   
   

   30 nights with the children and he seeks exactly the same number of nights as he has lost.

8. The mother puts forward a somewhat different proposal.  She opposes the additional block time during holidays.  She put from the Bar table that the children have not spent Christmas with the father for three years, and proposes the parties’ respective halves of the holidays commencing next month should be reversed so that the father has the children for the first half, rather than the second half, as is the default position under the 2005 orders; and that the children spend each alternate weekend with him on the weekends specified by the father, subject to there being some difficulty with the precise dates, and in addition, on a total of 15 specified weekends during 2009, the father’s weekend time be extended so that instead of commencing after school Friday until before school Monday, it be from after school Thursday to before school Tuesday.  It is put by the mother that this arrangement will provide an opportunity for the father to have greater involvement with the children during the school week.  She puts that it is not in the children’s best interests to be spending additional block holiday time with the father because, she says, she still believes that the children are at risk of sexual abuse at his hands.

9. This is exactly the root cause of this problem.  This is exactly the reason why these proceedings are before the Court.  Frankly, it was the reason for the hearing resolved by his Honour in 2005.  There have been two hearings now before his Honour in 2005 and before me in these contravention proceedings where the mother has failed to prove her contention that these children have been, and are at risk of being, sexually abused by the father.  In my view, for the mother to continue to put to the Court that decisions should be made and orders made upon the premise that these children are at risk of abuse at the hands of the father simply ignores the findings made by this Court now on two separate occasions.  In my view, it cannot be the basis for making a determination in relation to the time these children spend with the father. 

10. The order that I am asked to make is one in relation to which the best interests of the children is the paramount consideration.  Therefore, the matters under s.60CC are pertinent.

11. The evidence, as is usually the case in a contravention matter, is fairly scant or non-existent in relation to most of the matters calling for attention under s.60CC.  However, what I can say in relation to s.60CC(2)(a), the benefit to the children of having a meaningful relationship with each of the parents, is that the opportunities for these children to have an optimal relationship with their father under the orders of 23 December 2005 have been hampered by the mother’s contraventions of the orders.  In my view, it is in the children’s best interests that they be given an opportunity to effectively catch up on lost time, and bearing in mind the hiatus in their spending time with the father, they should be given additional time to have an opportunity to advance the relationship that was to have been established and advanced under the orders that the mother breached.

12. In relation to the second of the primary considerations - as I think I have already inferred - there is, in fact, despite the mother’s contentions to the contrary, no issue in this case in relation to the protection of the children from exposure to abuse, neglect or family violence.

13. Otherwise, in relation to the additional considerations, I have regard, of course, in relation to the provisions of s.60CC(3), to the mother’s failure to facilitate the father’s relationship with the children by her breach of the orders, her attitude to the children and to her responsibilities as a parent, again as evidenced by her breach of the Court orders where the Court has found that this is what is required in the children’s best interests, but the mother has substituted her own view for the Court’s, quite impermissibly, and otherwise cannot readily see that there are any other particularly relevant factors.

14. Certainly, it might be argued that the comments made by the mother might touch upon, for example, the consideration of the effect of any changes in the children’s circumstances upon them of the mother seeking, as I understand it, to suggest that expanding the block time would expose these children to harm.  But, as I have already said, there is simply no evidence of that contention and, in fact, it is directly contrary to the findings that have been made in Court proceedings after the mother has had every opportunity to put evidence to prove her contentions.

15. I am therefore satisfied that the time should be made up and it should of a kind as that which was lost.  Therefore, there should be five weekends made up for the five weekends lost, and there should be two periods of block time for the periods of block time that were lost.  However, this is not an accounting exercise.  I am concerned that there perhaps has been an undue focus upon nights in this particular matter.  In my view, what is appropriate is that the children have an additional half of the coming Christmas school holidays with their father to the half that they are otherwise to spend with him under the orders and, in addition, have an extra half of the winter school holidays, that is, those that fall at the end of Term 2 2009 to make up for the time lost in 2007.

16. It may be said that this may not precisely equate with the exact number of hours that were lost and I repeat this is not an exercise in accounting; this is an exercise by reference to the best interests of the children and I am satisfied that, whilst it is not precise, it is in fact compensating like with like.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Halligan FM

Date:  20 December 2012