Mohammed Salah and Gastana

[2012] FamCA 256

FAMILY COURT OF AUSTRALIA

MOHAMMED SALAH & GASTANA [2012] FamCA 256

FAMILY LAW - CHILDREN - Contravention - Where the Applicant Father has filed two Contravention Applications against the Respondent Mother - Where only one count of one of the Contravention Applications is valid - Where, upon consideration of the evidence, all Contravention Applications are dismissed

Family Law Act 1975 (Cth)

APPLICANT: Mr Mohammed Salah

RESPONDENT: Ms Gastana

FILE NUMBER: BRC 6504 of 2009

DATE DELIVERED: 23 April 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 23 April 2012

REPRESENTATION

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

Orders

1. The contravention application filed by the Applicant on 6 January 2012 be dismissed.

1. The contravention application filed by the Applicant on 23 December 2011 be dismissed.

1. The Respondent have leave to file and serve an affidavit sworn by her on 20 April 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mohammed Salah & Gastana 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 BRISBANE

FILE NUMBER: BRC 6504 of 2009

Mr Mohammed Salah

Applicant

And

Ms Gastana

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By applications filed on 23 December 2011 and 6 January 2012, the Applicant Father alleged a variety of breaches of a parenting Order made by way of final Orders on 15 June 2011.

2. In the course of exchanges at the outset of the hearing of these applications, I was satisfied that all but one of the alleged breaches ought be dismissed or struck out.

3. In the result, there is a remaining breach alleged as set out at page 5 of the Application filed 23 December 2012. The breach alleged is that, in breach of the requirements of paragraph 14 of the relevant Order, on 18 November 2011, the Respondent Mother, without reasonable excuse, failed to comply with paragraph 14 of the Final Orders.

4. The relevant evidence in relation to the alleged breach is that it is said that the Mother failed to include in the communication book referred to, commencing at paragraph 12 of the Orders, what is said to be a significant health issue concerning the children in relation to allegations of abuse that had arisen by 18 November 2011

5. I will not set out in detail paragraphs 12-15 of the relevant Orders.

6. It seems to me that the question is whether the word “inform” in paragraph 14 means what one would normally expect it to mean, that is, that it provide information or new information for the first time. The Father suggests that, after lengthy parenting proceedings, these Orders were formulated as the means by which the parties would communicate with each other, and that there is a mandatory requirement in respect of paragraph 14 for either party to inform the other parent by the means of the communication book of any relevant matter within the meaning of that paragraph.

7. Section 112AB in Part 13A of the Family Law Act 1975 (Cth) makes provision in relation to when a person is taken to have contravened an Order under the Act. There is no doubt in this case that the Mother is bound by the relevant Order, but as s 112AB makes clear that what must be established is that the person has intentionally failed to comply with the Order or has made no reasonable attempt to comply with the Order.

8. In the case before me concerning this breach, I am not satisfied that it can be said that the Mother intentionally failed to comply with an Order. On her evidence, as at 18 November 2011, information concerning the subject matter had already been relayed to the Father’s household via his son, and on the Father’s own evidence, the son relayed that information to the Father and I infer that the Mother had the reasonable expectation that that would occur.

9. In any event, in circumstances where the subject matter of the information is an allegation of abuse, it was also raised that there are questions as to what, if any, information should necessarily be relayed in circumstances where the matter is to be the subject of potential investigation by relevant authorities.

10. In my view, it is therefore not established that the Mother intentionally failed to comply with the relevant Order, even if it could be said that there was some technical requirement for her to also put the relevant information in the subject communication book. I should record that even if I were satisfied that this was an intentional breach, it seems to me that for the same reasons as referred to, the Mother would make out reasonable excuse for any technical alleged breach of this kind.

11. In the circumstances, I incorporate the transcript of the exchanges that occurred this morning so that an understanding can be gained for my reasons for dismissing a number of the counts which were contended for by the Father. Otherwise, and for these reasons, I dismiss the applications.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 23 April 2012.

Associate: 

Date: 24 April 2012