Murray and Kings and Ors

[2011] FamCA 426

FAMILY COURT OF AUSTRALIA

MURRAY & KINGS AND ORS [2011] FamCA 426

FAMILY LAW – CHILDREN – Contravention

Family Law Act 1975 (Cth): s 70NAC, s 70NAE(2), s 70NBA(1)

APPLICANT: Mr Murray

RESPONDENT: Ms Kings

SECOND RESPONDENT: Mr Murray Senior & Ms Murray Senior

FILE NUMBER: CAC 1200 of 2010

DATE DELIVERED: 5 May 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 5 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented litigant

COUNSEL FOR THE RESPONDENT: Self-represented litigant

COUNSEL FOR THE SECOND

RESPONDENT:

Self-represented litigant

Orders

IT IS ORDERED THAT:

1. The application that Mr Murray be dealt with for contravention of orders made by me on 1 November 2010 is dismissed. 

2. The application that Mr and Ms Murray, Senior be dealt with for contravention of the order without reasonable excuse is found to have been made out but I decline in circumstances to impose any penalty in relation thereto.

3. The application made orally by Mr Murray, Senior (on behalf of both he and his wife) for a variation in the arrangements about the time that Z will spend with him and his wife is declined at this point.

4. Without any further formal application and evidence in support the application implicit in the affidavit of Ms Kings that the existing arrangements about the time that Z spends with and communicates with her grandparents be suspended or discharged is declined, again on the grounds that if there is to be such an application it must be made in an appropriate form and it will be dealt with on the basis of the evidence available on that occasion. 

5. I further order and direct that Ms G from the Life Resolutions Organisation make a report in general terms both to Mr Murray and to Ms Kings about the progress of the time that Ms G spends with Z.  I do not seek in relation to such a report that Ms G breach whatever conditions of confidentiality she believes are appropriate but that she should report, and I request that she does report, to both parents in general terms about the progress and her recommendations about how long the assessment referred to in my previous orders will continue. 

6. For the purposes of such communication Ms G is advised that Mr Murray’s telephone number is … and his postal address is … K Street, Town 1in New South Wales. 

7. I consolidate files WOC421/2010 and CAC1200/2010 and the Court reference for this matter will be CAC1200/2010.  Mr Murray Senior and Ms Murray Senior are joined as Second Respondents to the proceedings. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1200 of 2010

Mr Murray

Applicant

And

Ms Kings

Respondent

And

Mr Murray Senior & Ms Murray Senior

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the proceedings are brought by the applicant father under the Family Law Act 1975 (Cth) (“the Act”) under Division 13A of Part VII, which refers to the “consequences of failure to comply with orders, and other obligations, that affect children”.

2. Under s 70NAC, I am to determine whether an order has been contravened by a party by assessing whether, a party who is bound by the order, has: intentionally failed to comply with the order; or made no reasonable attempt to comply with the order; or intentionally prevented compliance with the order by a person who is bound by it; or aided or abetted a contravention of the order by a person who is bound by it.

3. In determining whether there has been a contravention of the order, I am also to take into account whether there is any reasonable excuse for the contravention of the order.

4. A respondent to a contravention application is taken to have had a reasonable excuse for contravention of an order in the following circumstances:[1]

   a.   the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   b.   the court is satisfied that the respondent ought to be excused in respect of the contravention.

   [1] Family Law Act 1975 (Cth) s 70NAE(2).

1. That, however, is not the only basis upon which a reasonable excuse might be made out (see ss 70NAE(4) to (7) of the Act).

Discussion

1. In this case, it seems clear that from the evidence given by the applicant father and, in fact, affirmed in the paternal grandmother’s submissions, although not by any evidence, that they understood the terms of the order, and in particular, they understood that the orders meant that the applicant father should not be present during the time that they were to spend with the child.

2. The situation, it seems to me, is simply this.  It is clear to me, and I find, that there had been agreement between the second respondents and the respondent mother that the time spent between the child and her grandparents was to start at 2.00 pm.  I do not accept for these purposes (not that I think it particularly affects the outcome of these proceedings in any way) that the conversation that is deposed to in the applicant father’s affidavit on 30 March 2011 concluded as he said, that the respondent mother asserted that the time would be at 4.00 pm, “End of conversation”.

3. I come to that conclusion because the e-mail immediately afterwards sent by him verifies the agreement which is said by each of the parties to have occurred that it would start at 2.00 pm.  Nothing in particular turns on that except that it was reasonable for all parties in the circumstances to expect that the time that the grandparents would spend with the child would start at 2.00 pm.

4. It appears that they were unavoidably delayed in arriving at the park at 2.00 pm.  That is not a question of fault.  I accept that their delay was brought about by traffic and not otherwise.  I accept that it would have been possible to, but they did not, notify the applicant mother that they were running late, but in the circumstances, not much turns on whether or not they did give warning. 

5. If they had, it might have solved a few of the problems on the day, but we cannot expect that problems will ever go away in this matter, as the grandfather has somewhat poignantly said to me today.

6. In practical terms, when they arrived at the park, the applicant father was there in circumstances in which (they explain) as being on the basis that they (a) did not expect the respondent mother to be there.  This, in my opinion, was probably unreasonable in the circumstances.  And (b) it was only a temporary arrangement for the purposes of the handing over of presents. 

7. In fact, in the end, there was no breach of the order, simply because there was no opportunity for the order to be breached.  They did not have time with their granddaughter because she was taken away by her mother, given that the applicant father was present.  Effectively, the mother prevented the breach of the order from occurring by removing the child.

8. The situation is this.  In circumstances where everyone was being reasonable, the situation would have been defused and there would have been a different result.  It is clear from the orders I made and from the fact that the files – and there are multiple files – relating to the proceedings about the child have been going on for so long that everyone trades deeply in the currency of suspicion.  In those circumstances, every possible attempt needs to be made by everyone to avoid any situation in which there can be any suggestion of conflict or a breach of the orders.

9. It was unwise, though not necessarily inappropriate or improper, for the grandparents to have arranged to meet the applicant father where the time spent was scheduled to take place, even if it was only intended as an exchange of presents and a temporary arrangement preparatory or prior to their spending time alone with the child.

10. From the respondent mother’s point of view, the fact that she saw the applicant father at a time when the orders specifically said that he should not be there, provoked in her a reaction which, in all of the circumstances, is understandable, if not entirely the most reasonable thing to have occurred. 

11. The fact that there had been no communication about the grandparents’ being late exacerbated the misunderstanding that existed.  It seems to me that in the overall circumstances, it was not the most appropriate course of action for the grandparents to have taken.

12. Although I would determine that there has been a breach of the order, it seems to me that the breach is one which is undeserving of the imposition of the penalty. 

13. I find the contravention made out, but I do not find that it is appropriate that I should make any orders against the grandparents.   I do not consider in the circumstances that it is appropriate that I should make the orders that are being sought in these proceedings by the respondent mother about the suspension of all the time that they might spend with the child.

14. I note that under s 70NBA(1) of the Act, during the course of proceedings about contravention, I can make orders which vary the primary orders. I do not consider that the circumstances in this matter and the evidence I have before me would justify my changing the orders that were made by consent and by agreement on 1 November 2010.

Conclusion

1. Accordingly, I find the allegations against the grandparents proved.  I decline to impose any penalty or any other variation, and I reject the application implicit in the application by the respondent mother to vary the orders that apply.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 5 May 2011.

Associate:

Date: 9 June 2011