MOHAN & MOHAN

[2014] FamCA 630

FAMILY COURT OF AUSTRALIA

MOHAN & MOHAN [2014] FamCA 630

FAMILY LAW – Contraventions – reasonable excuse

Family Law Act 1975 (Cth)

APPLICANT: Mr Mohan

RESPONDENT: Ms Mohan

FILE NUMBER: MLC 7543 of 2012

DATE DELIVERED: 2 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 July 2014

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That all extant parenting orders are discharged.

2. That by 4.00pm on 27 August 2014, the wife pay to the husband the sum of $40,000.

3. That contemporaneously with the payment referred to in these orders, the husband transfer to the wife all of his interest in the property at B Street, Suburb C.

4. That contemporaneously with the payment, the wife provide to the husband a discharge of all of his obligations under the mortgage loan to the Westpac Banking Corporation encumbering the property at B Street.

5. That contemporaneously with the payment referred to in these orders, the husband provide to the wife a discharge of caveat ...

6. That in default of payment of the sum referred to in these orders by the wife, both parties do all such acts and things as may be required to place the property at B Street, Suburb C on the market for sale and upon the settlement of the sale, the proceeds be disbursed as follows:

   (a)    First, to discharge all encumbrances affecting the said property;

   (b)    Secondly, to discharge the obligations under these orders to the husband; and

   (c)    Thirdly, to pay the balance to the wife.

7. That at 2.00pm on Saturday 19 July 2014, the husband attend at the premises of the wife and the wife provide to him the following:

   (a)    All books related to art and history including biographies books, all being personal belongings;

   (b)    Gym bicycle;

   (c)    Cross trainer;

   (d)    Coffee machine;

   (e)    All tools included in the applicant’s interim order, i.e. electric drill and box of drill bits, bench grinder, angle grinder, and a circular saw;

   (f)     The two 90 degree angle metal rulers;

   (g)    Set of drill bits and set of hole punchers;

   (h)    Set of blue screw drivers;

   (i)     All painting and tiling tools.

8. That all extant applications are otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mohan & Mohan 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 MELBOURNE

FILE NUMBER: MLC 7543 of 2012

Mr Mohan

Applicant

And

Ms Mohan

Respondent

REASONS FOR JUDGMENT

1. Section 70NAC of the Family Law Act 1975 (Cth) provides that a person, relevantly in this case the wife, is deemed to have contravened an order of the court affecting children if, and only if, being bound by the order, she has intentionally failed to comply with the order, or made no reasonable attempt to comply with that order.  In this particular case, there is very little dispute that on each of the two occasions alleged, which relate to 2 November 2013, and on 17 May 2014, the children in respective of the first count, D, did not attend, and in respect of the second count, E did not attend contact with the husband under orders of the Court. 

2. A curious feature of this particular case is that in respect of the first count, in which D did not attend, the wife had signalled to the husband two and a half hours before that time that D had wanted to stay and do his homework.  D then was, 14 and now 15.  I can understand that reticence, particularly at that time of the year.  Be that as it may, the dispute was not about the question of whether or not the child went on that day, but whether or not there was make-up time afterwards. 

3. The evidence in this particular case is relatively simple.  It seems that D refused to go.  In fact, worse than that, the parties attended upon a counsellor, and the child repeated that position.  The husband accepted that the order was not to be followed, and therefore has allowed D to make up his own mind about the nature of the relationship.  It seems that the husband’s complaint is with the wife for not having done enough.  Indeed, he makes the positive allegation of “alienation”.  In my view, the evidence does not support that allegation, but that is because the evidence is very limited. 

4. In respect of the second allegation which relates to May 2014, it seems that E had a birthday party she wished to attend, and the husband sought that there be make up time, and hence he agreed that she did not need to attend his contact.  What he complained about was the fact that the time that he chose as the “make up time” did not apparently work or suit him and so it did not happen.  He was inconvenienced.  He concedes that the make up time indeed was made up, but at another time.  This shows a conflict between the importance of complying with the strict letter of the law, and parents grappling with the problems that children have as they grow, day by day. 

5. Orders are to be complied with, and attempts must be made by parents for their compliance to the best of the parents’ ability.

6. The wife’s evidence in this particular case in relation to D, which was not really challenged by the husband, was that on one occasion, which seems to be some time prior to November last year, she drove D to his father’s residence against his will.  The husband concedes the child was there against his will, and all agree that he was upset.  It seems clear on the evidence that there is a significant problem between father and son which has now to some extent been ameliorated by the agreement between the parties.

7. Section 70NAE provides that circumstances can be accepted by the court as a reasonable excuse for contravening an order.  A number of examples are given in section 70NAE, but they are not exclusive, and the court is not limited by those provisions.  The court must be satisfied on the evidence that a reasonable excuse is provided.  Again, reasonable excuse is a subjective thing.  In my view, having regard to the fact that in respect of the second of the allegations, the time was indeed made up, and bearing in mind the reason for the non-compliance in the first occasion was a birthday party that was an acceptable alteration, that issue seems to have now resolved itself.  In respect of the November count, is it reasonable to criticise a parent who is struggling with a 14 or 15 year old boy where that child is, on any view of the evidence, resistant to his father’s desire to have a relationship with him?  It is difficult on the evidence for me to say that it is not a reasonable attempt where the boy is of that age and undeniably resistant.  Actions speak louder than words in this case; this child has not been attending his father despite the encouragement I accept his mother has been giving but there comes a point where encouragement is futile.  I am satisfied that has been reached here.  The evidence shows the child does not go except where father and son seem to sort things out between themselves.  That is all evidence I accept that the wife has been making a reasonable attempt.

8. The contravention process is about enforcing court orders.  It would have been much more sensible in this case for the parties to have gone back to the situation where the orders which were made by the court were re-addressed on the basis that they were clearly not working for these children.  In my view the wife has established there is a reasonable excuse in respect of both of the matters, and both of the applications are dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 July 2014.

Associate:

Date:  4 August 2014