Mr S v Ms E

[2000] FamCA 2146

[2000] FamCA 2146

FAMILY LAW ACT 1975

IN THE FAMILY COURT

OF  AUSTRALIA

AT BRISBANE

No. BR. 2362 of 1998

BETWEEN:

MR S

Father

AND:

MS E

Mother

BEFORE THE HONOURABLE JUSTICE WARNICK

Date of Hearing:  10th July 2000

Date of Judgment:

APPEARANCES:

10th July 2000

The FATHER appearing in person.

Mr Fleetwood of Counsel, instructed by Boyce  Garrick Lawyers, appearing for the MOTHER.

Ms McMillan of Counsel, instructed by Hartley Family Law Services, appearing for  the  CHILD'S REPRESENTATIVE.

1. HIS HONOUR: In this matter, on 12 February 1998, the father filed an application seeking, by way of final orders, that he and the mother, the father being Mr S and the mother Ms E, have joint responsibility for their child, B, born in 1989. He sought that the mother have sole responsibility for the day to day care of the child, the child live in with her, and that he have certain nominated contact.

1. It is apparent that there were interim issues between the parties. On 28 October 1998, an order was made by his Honour Buckley J that the child be separately represented. Other orders were that each of the parties co-operate with the child's representative, and the mother appear personally on the next Court date, being 28 January 1999.

3. It is apparent that the child's representative requested Ms N prepare a family report, intended for use on 28 January 1999. Ms N prepared a report which is attached to an affidavit filed 21 January 1999. A further report was prepared by Ms N in July of 1999, and another report was prepared in November 1999. In that report, it is recorded that though it had been arranged for the mother and child to attend for face to face interviews, the mother did not attend, but agreed to speak on the telephone; but B was not available.

1. On 23 November 1999, the father filed an amended application in which he sought an order that the child reside with him. The matter came before his Honour Bell J on 13 December 1999. The father appeared on his own behalf; the mother was represented by counsel; and Miss McMillan of counsel appeared on behalf of the child's representative. The application was adjourned. There are reasons on file for that, and those reasons have been read before me. His Honour Bell J ordered that there be an updated report prepared by Ms N, and ordered that in relation to the report, the mother, her then partner and the child do present themselves to the reporter at such times and places as may be directed by the reporter.

1. There is a fourth report of Ms N.  It is there recorded that the mother did not attend for interviews, advising the child representative on the day previous that she did not have sufficient money to meet the travel costs from the Sunshine Coast to Brisbane to attend the interviews, and recording that she had been asked to make B available for the interviews in the event of her not being able to attend, but that that did not occur.

1. The question of the mother contravening the order of his Honour Bell J has been raised. Though there has been no application that the mother be dealt with for contravention, no suggestion has been forthcoming on behalf of the mother but that she is other than in contravention of the order. This, in my view, gives rise to a situation where the mother now seeks to be heard in relation to the very issues or very proceedings in which the order of which she is in contravention was made, notwithstanding that she has contravened, and remains in contravention of, that order.

7.It appears to me at least implicit from the reasons for judgment of the Full Court in Fahmi v Fahmi (1995) FLC 92 637 that in circumstances such as I have recounted, the Court has a discretion as to whether to allow the party in contravention to be heard, and that this is so notwithstanding that the party may not have been formally dealt with. That understanding arises from passages such as at the right-hand column of page 82 425, where the Full Court quotes Reimer LJ in Hadkinson v Hadkinson (1952) Probate 285, saying that the rule - that is, the rule that a party in contempt would not be heard, or at least could not be heard, if the Court so chose - could not be open to question, but that a number of exceptions were recognised, including that a person against whom contempt was alleged would be heard in support of a submission that, having regard to the true meaning and intent of the order which he is said to have disobeyed, his actions did not constitute a breach of it; or that, having regard to all the circumstances, he ought not be treated as being in contempt.

1. As I  have said, no submissions to that effect have been urged upon me. That there is a discretion quite apart from according with the principles to be deduced

from the case is clear in this instance because of the provisions of section 69F of the Family Law Act. I therefore conclude that the mother is in contravention of the orders of 13 December 1999, in particular order 3, in relation to her own non­attendance for the preparation of an updated report, and that of the child, I make no comment in respect of any partner of the mother's.

9.In Fahmi, it is indicated by way of what appears to be a quotation with approval from other authorities that the Court should not decline to hear a party except in fairly exceptional circumstances, and where there is no other way of achieving compliance with the order. It may well be that those circumstances exist in this case, although I confess to some perturbation because I do not know that I think it is in the child's interests that she at least be made to attend another interview.

10. In my view, however, what can be said is that the Court has adjudged that in this matter, to enable a decision in the best interests of the child, there ought be an updated family report at which the attendance of the mother and the child occur, and that has not occurred; and that a mother should by her actions prevent the Court being fully apprised, as the Court thought it ought be apprised, in determining the matter in the interests of the child, is, in my view, an exceptional circumstance, and is contrary to the determination underlying the making of the order, and indeed, exclusion of the mother from participation would seem the only means by which the Court might ensure compliance with the order, leaving aside any views about the wisdom of that in relation to the child in the current circumstances, not necessarily those before his Honour Bell J.

11. Ihave, because I consider a party should not be allowed to unilaterally prevent the Court being placed in the position that the Court wishes to be placed in, decided that the mother should not be heard or further allowed to participate in these proceedings while she remains in contravention of the order of his Honour Bell J.

12.Mr Fleetwood, for the mother, made an application that the father's application should be dismissed.  He referred to matters of some persuasion in support of that submission. It is not a submission which I proceed to consider, for the very reasons that I have just given. I do not, in effect, permit the mother to be heard on that application, or, in effect, to even make it. I intend then shortly to proceed with the matter in the absence of the mother.

13.Just before I deal with this further matter I did just want to add to my reasons what I meant to say earlier; that is, it's difficult for the mother to be convincing in relation to the importance of her participation in the further proceedings when she could achieve that participation by or have achieved it readily by complying with the order of Bell J in relation to her participation in the report process.

14.In relation to the paramount interests of the child insofar as it bears upon the participation of all relevant parties or perhaps the reverse insofar as the participation of all relevant parties bears upon determination of the best interests of the child, it is not as if the Court would proceed if the mother was excluded to make orders by default. A discretion remains in the determination of the matter and the appropriate parenting orders. It is appropriate to note in this matter that the child is and would remain separately represented and there is a considerable body of evidence before the Court as a result of the efforts of the child's representative.

15.Now, this is an application by the mother to be given a chance to remove her position of contravention.

RECORDED          NOT TRANSCRIBED

16.     HIS HONOUR: In those circumstances the granting to the mother of an opportunity to remove the continuation of her contravention will make little difference to the conduct of the proceedings.  If she does not attend with the child as has been indicated on her behalf she will at 9 am tomorrow morning then the trial will proceed at 10 am. In those circumstances I propose to permit the mother an opportunity to attend and comply with the orders made by Bell J but, as I indicate, I intend to continue with the matter at 10 am in the morning.  If she

has not so complied - if she is in the course of complying then I will hear counsel about appropriate arrangements for the continuation of the matter although I indicate that I wish to proceed some time in the morning and to determine the matter with continuous hearing tomorrow and possibly the next day if that is needed.