Murray and Kings

[2010] FamCA 1224

FAMILY COURT OF AUSTRALIA

MURRAY & KINGS [2010] FamCA 1224

FAMILY LAW – CONTRAVENTION – Whether the mother had a reasonable excuse in contravening the orders

Evidence Act 1995 (Cth) ss 140(1), 140(2)
Family Law Act 1975 (Cth) ss 70NAC, 70NAF(1), 70NDA

APPLICANT: Mr Murray

RESPONDENT: Ms Kings

FILE NUMBER: WOC 421 of 2010

DATE DELIVERED: 1 December 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 1 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented litigant

COUNSEL FOR THE RESPONDENT: Self-represented litigant

Orders

IT IS ORDERED THAT:

1. The Applications being filed initially on 13 April 2010 in G in New South Wales that the Respondent be dealt with for contravention of Orders of this Court and on 16 September 2010 that the Respondent be dealt with for contempt of this Court to the extent that they were not withdrawn, are both dismissed.

2. The matter is removed from the pending cases list.

3. In relation to the father’s Application about further matters relating to the time he might spend with the child, I direct that the parties will cause the child to attend upon Ms K for the purposes of the professional therapy and assessment as referred in Order 3 of the Orders made by me on 1 November 2010.

4. I direct that upon completion of the therapy and or assessment that Ms K provide a report to this Court. 

IT IS NOTED THAT:

1. I note that the mother has agreed that she will meet the fees associated with the consultations and report from Ms K.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: WOC 421 of 2010

MR MURRAY

Applicant

And

MS KINGS

Respondent

REASONS FOR JUDGMENT

1. In this matter, the proceedings that still remain for disposal before me relate to one of the counts under the application that the respondent be dealt with for contravention of a court order without reasonable excuse, which was filed originally in the Local Court at G on 13 April 2010. 

2. The remaining count for disposal before me of those matters and also in relation to the contempt allegations is that on 23 March 2010, without reasonable excuse, the respondent, the mother, was in breach of order 23 of the orders made by me on 12 June 2009. 

3. Order 23 makes no sense unless it is read in the context of the orders surrounding it, and indeed, the allegation originally encompassed breaches of the other orders, although I accept that (a) the father withdrew the allegations of breaches of those orders, and (b) they provide a context in which the allegation – the primary allegation under order 23 might be considered.

4. The orders relating to telephone contact are as follows:

   21. The father is permitted to contact [the child] once by phone on Monday and Thursday each week between 5.00 pm and 6.00 pm.

   22. If the phone call cannot be facilitated during the time outlined in Order 21 for whatever reason, [the father] may make an alternative phone call the following morning between 7.30 am and 8.30 am. 

   23. The duration of the phone call will be between approximately three and five minutes, with five minutes being the maximum.

   24. Noting that [the father] has done so previously, [the father] must not make any reference to any legal proceedings (including family law proceedings) to [the child] during these phone conversations and will ensure his communication with [the child] complied with Order 30 below.

   25. [The mother] will make [the child] available during the relevant times above and will make available a mobile telephone provided by [the father] for the purposes of receiving such calls.  [The father] will be responsible for making the telephone initially available to [the mother] and will be responsible for all costs associated with that telephone so far as charges are concerned.  [The mother] is prohibited from making any other personal calls on that mobile telephone.  

5. Order 30 reads as follows:

   30. Neither party will make any disparaging, rude or denigrating comment about the other party in [the child’s] presence.

6. Neither party suggests in this context that this was a breach of order 30 on the father’s part.

7. There is no dispute in this matter that presumably as a result of there not being a telephone call on the Monday night, this was a telephone call occurring on the following day, for the purposes of carrying out the call referred to in order 22.  It was within the timeframe that was indicated.  No one is disputing that occurred.  It apparently occurred on the mobile telephone provided by the father, and the call was facilitated in accordance with the other orders that I have just referred to.  The complaint in relation to this matter is that instead of the duration of the telephone call being between three and five minutes, it lasted only for two minutes and four seconds.

8. The first matter that I am obliged to turn my mind to in relation to an asserted breach of that order is whether in the circumstances, two minutes and four seconds is approximately three minutes.  There is an old legal maxim which in Latin reads “de minimis non curat lex”, which means that the law does not care about the smallest things.  One might think that in the context, 54 seconds was pretty close to being one of the smallest things that one may have in terms of relationships between parties.  Leaving that to one side, it might also be viewed, as the father would urge on me, that if one were to round up or round down the relevant time, then it would be rounded down to 2 minutes, which would only be two-thirds of the time the telephone call might reasonably have taken if the minimum time had been complied with.

9. The issue, however, is somewhat complicated by the incorporation into the order, (and the reasons for it are not entirely clear to me) of the word “approximately”.  Whether two minutes and four seconds is approximately three minutes is an interesting question that I suppose might be the subject of some consideration at some point. 

10. These are proceedings which are for contravention of an order and which may involve consequences which are extreme.  They could involve a party being incarcerated or subjected to periodic detention or put on a community service order or being obliged to enter into a bond which may involve the forfeiture of money to the Commonwealth in due course.

11. In such circumstances, it is well known and has been held that the standard of evidence required is one which would comply with the Evidence Act 1995 (Cth), and although the allegation must be proved on the balance of probabilities, it must be proved to an extent that I would feel comfortable and confident that the breach is being made out.[1] 

    [1] Evidence Act 1995 (Cth) s 140(1) & s 140(2); Family Law Act 1975 (Cth) s 70NAF(1) refers.

12. I found that there was a prima facie case in relation to this matter, as clearly the telephone call did not last for the three minutes that was the time stipulated under the order.  Whether on a final consideration of the matter without any other factor to be taken into account I could reasonably be satisfied to the standard of proof required that two minutes and four seconds did not constitute approximately three minutes is a different matter. 

13. In my opinion, two minutes and four seconds, although hardly a desirable result, is, in the circumstances, approximately three minutes. 

14. If I were wrong in relation to this, the respondent has asserted she had a reasonable excuse in terminating the telephone call within this period, and I now turn to consider that in the light of the matters that are before me. 

15. Section 70NDA of the Family Law Act 1975 (Cth) relevantly provides:

    Application of Subdivision

    This Subdivision applies if:

    (a)  a primary order has been made, whether before or after the commencement of this Subdivision; and

    (b)  a court having jurisdiction under this Act is satisfied that a person (the respondent ) has, whether before or after the commencement, committed a contravention (the current contravention ) of the primary order; and

    (c)  the respondent proves that he or she had a reasonable excuse for the current contravention.

16. Her obligation under the Act is to establish that reasonable excuse on the balance of probabilities, which means I need to be satisfied that it is more likely than not that the excuse is reasonable. 

17. In this regard, the allegation is that during the course of the conversation, the child’s demeanour changed in that she became upset.  As a result, the mother believes at least of something which it appears her father has said.

18. There is no contradiction of the fact that the father has asserted that his conversation with the child was about her not attending for time with him on the previous week.  It was initially asserted by the mother that this was expressed in a “berating tone”, but I struck from the affidavit that material.  The subsequent evidence revealed that she did not hear the conversation, but she heard his tone of voice. 

19. What seems to be the case is this in summarising what is asserted to be the reasonable excuse: 

    ·that the child was having a conversation with her father;

    ·it appears that that conversation, on the basis of the father’s evidence, as opposed to the mother’s evidence, was about why she did not turn up for the time that she was to spend with him on the previous week; and

    ·it is the uncontradicted evidence of the respondent that the child at some point during the course of the conversation became upset, and that as a consequence, the mother felt a need to intervene. 

20. Those are facts which are not in dispute and are common between the parties. I make no decision in this matter about whether the evidence of one party is to be accepted over the evidence of the other. On the facts as they have been stipulated, it is reasonable, within the meaning of s 70NDA (above), for the mother in circumstances where a child has become upset to intervene in the proceedings.

21. I accept her evidence which was not the subject of challenge that she was unaware of the time when she did intervene. 

22. I accept in that context that it was reasonable that she should seek to either obtain an explanation or alternatively to terminate the call.  In fact, she chose initially to seek an explanation and did so in the absence of the child – again, evidence that is uncontradicted.  The explanation was that – it was from the father, which was not in dispute – is that he was entitled to ask these matters.  Now, whether he was entitled or not, it was at that point that the call was terminated.  Whether that was reasonable or not at that point is probably not in question, given that the intervention itself, in my opinion, constituted a reasonable excuse on the basis of the evidence as it has been outlined above.

23. If I am wrong in relation to both of those matters, that is, in relation to whether or not two minutes and four seconds is approximately three minutes and therefore that the primary ground had not been made out – the primary elements of the alleged contravention have not been made out: s 70NAC of the Family Law Act 1975 (Cth) refers; if I were wrong as to whether or not a reasonable excuse had been determined, in my opinion, the allegation is of such a nature that it ought to be dismissed, because it represents such a minor infringement, (if it were an infringement), as not to warrant the proper attention of this Court.

24. In my discretion, I would dismiss the application.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 1 December 2010.

Senior Legal Associate:

Date: 21 December 2010