MRM and GHS
[2003] FMCAfam 7
•10 January 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MRM & GHS | [2003] FMCAfam 7 |
| FAMILY LAW — Contravention — case turns on its own facts. |
| Applicant: | MRM |
| Respondent: | GHS |
| File No: | MLM 9273 of 2001 |
| Delivered on: | 10 January 2003 |
| Delivered at: | Melbourne |
| Hearing Dates: | 9 & 10 January 2003 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr T. Serra |
| Solicitors for the Applicant: | Margot Foster Lawyer |
| Counsel for the Respondent: | Mr P. Cronin |
| Solicitors for the Respondent: | Lander & Rogers |
ORDERS
These proceedings coming on before the Court and upon hearing Mr Serra of Counsel for the Applicant Husband and Mr Cronin of Counsel for the Respondent Wife and:
(a)the Court being satisfied that the wife has committed a contravention of an Order under the Family Law Act affecting children (being a contravention of paragraph 10 of the Orders made in the Federal Magistrates Court of Australia at Melbourne on 1 May 2002);
(b)the wife not having proved that she had a reasonable excuse for the contravention referred to in (a) above;
(c)no Court having jurisdiction under the Family Law Act having previously determined that the wife has, without reasonable excuse, contravened the Order referred to in (a) above; and
(d)the Court being satisfied that Subdivision B of Part VII of the Family Law Act applies to the contravention referred to in (a) above,
IT IS ORDERED THAT:
There be orders, by consent, in terms of paragraphs 5 to 8 of the Minute of Orders signed by the parties personally and dated 10 January 2003 (“the Minute”) — a copy of which is attached hereto.
There be further orders, not by consent, in terms of paragraphs 1 to 4 of the Minute.
IT IS DIRECTED THAT:
The Minute be placed upon the court file.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 9273 of 2001
| MRM |
Applicant
And
| GHS |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
The application before the Court today is the husband's amended form 49 contravention application which was filed on 18 November 2002. The details of the alleged contraventions, and of the orders allegedly contravened, are set out in that document and I do not propose now — at the end of a rather long day — to restate the matters contained in the contravention application. Nor do I propose to restate the matters contained in the affidavit material filed on behalf of the parties. Suffice it to say that the father complains that contact was denied on two specific occasions, the first being the weekend of 1 November and the second being the weekend of 15 November 2002.
Additionally, the father complains that, the child having been injured or apparently injured as a result of a fall or an incident at school, and having received medical attention, the father was not advised of that fact. These actions of the wife, it is asserted, contravene the orders referred to by the husband in his application.
During the course of the hearing before me today, I concluded that the wife had no case to answer in respect of the first of the alleged contact contraventions — in other words, the contact contravention that was alleged to have occurred on 1 November 2002.
My concern throughout the proceedings has been the incident on 15 November — when the wife took it upon herself to disallow contact. During the course of the evidence before me, it appeared that the wife saw matters in a cumulative way. She spoke of the events that had occurred since May 2002. In particular, she spoke of an event in June 2002 when the wife attended at the husband's home. She stated in evidence (in her affidavit) that it was her belief that the husband had been using marijuana and that there was a smell of marijuana in the house on that occasion. To the extent that it may be necessary for me to make any finding in relation to the matter, I find that the husband did in fact use marijuana on that day. I also accept the wife's evidence where she says that the smell of marijuana was emanating from the husband.
Added to that incident was the event in Newcastle — which is described
in detail in the affidavit material, and effectively not denied by the husband. I noted during the course of his evidence that it was put to the husband that the video prepared by the inquiry agent had been subpoenaed, but that the husband had not availed himself of the opportunity to look at it. Why the video was demanded and then not inspected is something that I do not understand. But in any event,
I heard evidence as to the events of that evening and it is apparent to me that the supervision provided for D on that night was less than adequate.
I say that the supervision was less than adequate because at some stage the maker of the video was able to approach the van in which D was sleeping and film her whilst she was sleeping. That occurred without the knowledge of the husband, and without the knowledge of the person who was primarily responsible for supervising the child in the absence of the husband.
A further factor which worked cumulatively in the mind of the wife to justify the actions which she took later was the fact that she found out through a friend that the husband was advertising a party that was to occur in his home on the evening of Halloween. It was as a result of that email that the wife finally determined that the contact that was due on 1 November 2002 should not take place.
At that point it seems to me that the wife had reached the stage where she was exasperated by the husband's approach to the care of his daughter. I indicated during the course of the evidence that I heard today, that as I saw matters, it was a question of the priorities of the husband — as far as the wife was concerned. She said, and I accept, that she is not perturbed by what the husband may do during the 12 days that D is not with him, but the wife is indeed concerned about what may occur during the days that D is in the care of the husband.
If the communication between these parties were better than it is, then it may have been possible for them, with (perhaps) the assistance of their legal advisers or counselling facilities, to work out some sort of contact regime which would have enabled the husband to continue whatever lifestyle he saw fit, but which would have also ensured that the wife was comfortably satisfied that the child was being supervised elsewhere — perhaps by the husband’s parents. Alternatively, the husband may have been prepared to simply forego contact during periods when he was involved in lengthy entertainment activities or partying. But the relationship between the parties was not such as to enable that to occur.
At the end of the day, I have to apply the law as best I can to what is, when all is said and done, a fairly difficult factual scenario. One can well understand from the husband's point of view that — regardless of his behaviour in June, or indeed in early November of 2002 — there was (as his counsel has forcefully put to me) no evidence that D was going to be at any risk whatsoever on the weekend of 15 November. In a strict sense, of course, that is true. The wife had no such evidence available to her. She does not suggest that she was aware that there was to be a party or some other type of event on that weekend — the effect of which could be that the husband would not be capable of devoting all his time to the care of the parties' child.
On the other hand, there is the wife’s evidence that over a period of weeks and months her confidence in the husband's ability to prioritise his activities and his responsibilities had been shaken to the core, and that she had reached a point where she felt the matter should be dealt with by the court after all relevant evidence had been put before it.
It seems to me to be a very relevant matter that the wife filed her application to vary the substantive orders on 11 November 2002 — prior to the decision which she made to deny contact on 15 November 2002.
Dealing, therefore, with the failure to comply on 15 November, section 70NC of the Family Law Act states that a person is taken for the purposes of the relevant Division to have contravened an order under the Act affecting children if, and only if, firstly, where the person is bound by the order he or she has either intentionally failed to comply with the order or, made no reasonable attempt to comply with the order.
I find in this case — and it is in any event effectively conceded — that the wife did indeed intentionally fail to comply with the order when she refused to enable the husband to have contact with D on 15 November 2002.
But that is not the end of the story. The court must look at whether the wife had a reasonable excuse for failing to comply with the order. The meaning of "reasonable excuse" is set out in section 70NE of the Family Law Act. Before dealing with the particular provisions of section 70NE, however, I remind myself of the provisions of section 70NEA of the Act which reads as follows:
The standard of proof to be applied in determining in proceedings under this Division whether a person who contravened an order had a reasonable excuse for the contravention is proof on the balance of probabilities.
The relevant parts of section 70NE to which counsel for the wife has referred me include section 70NE(1) — which states that:
The circumstances in which a person may be taken to have had for the purposes of this Division a reasonable excuse for contravening an order under this act affecting children include, but not are limited to, the circumstances set out in subsections (1)(a)(2), (3) and (4).
The only relevant subsection to which my attention was drawn is section 70NE(3). That states that a person is taken to have had a reasonable excuse for contravening a contact order (in a way that has resulted in a person and a child being deprived of contact that they were supposed to have had under the order) if:
(a)the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of the person, including the respondent or the child; and
(b)the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
I find, in the circumstances of this case and on the basis of the evidence before me — and accepting, as I do, that the wife is a witness of truth — that the wife did indeed believe that the deprivation of contact on
15 November 2002 was necessary to protect the health or safety of her daughter. The grounds upon which she believed that that step was necessary have been described by me already and have their genesis in the events that took place between May 2002 and 15 November 2002.
Further, in my view, the wife was entitled to be concerned about what I have already described as the husband's priorities. I commented at the beginning of these proceedings that “the parties should leave their soapboxes outside”. It became apparent to me during the course of the proceedings, and as a result of one or two comments made by the husband, that he has some difficulty doing that. But the fact of the matter is that both parties consented to orders in very specific terms (and here I refer to paragraphs 7(a) and (b) of the orders made on
1 May 2002). It seems to me that the husband has been concerned at all times to push the limits as far as he can in relation to those orders.
It also seems to me that the husband has not always acted in the best interests of his daughter. He clearly regards the restraints set out in the order as some form of infringement upon his personal rights. I can understand why he may think that way, but the reality is that these are orders to which he consented, and hence he must be taken to have formed the view — at the time that he consented to them — that they were in the best interests of his daughter.
As far as the second element of section 70NE(3) is concerned, namely, whether the deprivation of contact was not longer than was necessary to protect the health or safety of the relevant person, I must concede that that has given me some cause for concern. Having regard to the steps taken by the wife in filing her application on 11 November (and thereby putting the matter before the court) and having regard to the provisions of section 70NE(1), it seems to me that the wife has not prevented contact for any longer than was necessary. In other words, she took every reasonable step to bring the matter properly before the court. Clearly if the husband was concerned about improper cessation of contact, then it was open to him to argue the matter fully before the court at the earliest opportunity.
I find, therefore, that — on the balance of probabilities — the wife did indeed have a reasonable excuse for contravening the order. The husband's application in relation to the breach of the order on 15 November will be dismissed.
I am now left with the question of the non-communication by the wife to the husband of the medical events as described in the affidavit material and as I have heard today. The precise terms of the order that the husband says was contravened are as follows. I quote from paragraph 10 of the orders:
Until further order each party keep the other informed of any accident, illness or injuries sustained by the child requiring medical attention which occurs whilst the child is in their care.
Leaving aside the poor grammar associated with that provision, in my view, the events described by the wife clearly fall within the type of exigency that paragraph 10 of the orders is intended to cover. The wife's explanation for failing to communicate with the husband regarding the child’s injury had to do with the breakdown in communication between the parties — which had occurred largely as a result of the events to which I have already referred.
In the circumstances of this matter, however, I find that the wife did not act reasonably in failing to communicate with the husband regarding the injury that the child sustained. There is certainly force in Mr Serra's argument to the effect that the wife would have complained long and loud if the child had been injured in such a way whilst in the care of the husband and if he had not thereupon communicated with her. I find that there was no reasonable excuse — in the circumstance of this case — for the wife not to have communicated with the husband for the purpose of telling him about the injury. That could have been done through her solicitors (whom she had engaged at the time). It could also have been done by email or letter or fax, or by some other form of communication which would have avoided the need for direct contact between the parties.
I can understand why the wife may not have wanted to communicate with the husband, and she no doubt felt very frustrated with his attitude. But the fact of the matter is that the terms of the order are clear and, in my view, there was no reasonable excuse for the wife to have contravened it. I find that allegation proved.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Paul O'Halloran
Date: 28 January 2003
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