Murray and Stewart

[2013] FamCA 1043

FAMILY COURT OF AUSTRALIA

MURRAY & STEWART [2013] FamCA 1043

FAMILY LAW – CHILDREN – Contravention – Where final orders were made with the consent of the parties prior to trial – Where the mother has not allowed the child to spend time with the father – Whether the mother had reasonable excuse for contravening Court orders – Where the Court finds that the mother contravened without any reasonable excuse

APPLICANT: Mr Murray

RESPONDENT: Ms Stewart

FILE NUMBER: BRC 6955 of 2011

DATE DELIVERED: 19 November 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 19 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Marais
Towns Wilson Lawyers

FOR THE RESPONDENT: Ms Stewart in Person

Orders

1. The time the child, B born … 2007, was ordered to spend with his father pursuant to the Orders of 6 May 2013 shall commence afresh from Saturday, 23 November 2013 and shall progress as provided for in paragraphs 2 and 3 of those Orders from that Saturday onwards, save for the provision in those orders for the place of changeover.

2. The place at which the child shall be changed over from the care of his mother to the care of his father and back from the care of his father to the care of his mother at the commencement and conclusion of the times that the child is to spend with his father, shall be changed from the Suburb C Shopping Centre to the reception desk inside the Suburb D Police Station.

3. The consideration of the father’s application for further orders as a consequence of the mother’s contravention without reasonable excuse of the existing orders is adjourned for further mention before his Honour Justice Forrest at 10.00 am on Wednesday, 11 December 2013.

4. Should the father intend to ask for any further orders from the Court, on the further mention of this application, he shall cause an Application in a Case setting out such orders and a brief affidavit of evidence in support of such application to be filed and served on the mother no later than Wednesday, 4 December 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murray & Stewart 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 BRISBANE

FILE NUMBER: BRC 6955  of 2011

Mr Murray

Applicant

And

Ms Stewart

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 6 May 2013 in substantive parenting orders proceedings in this court between the father (who is the applicant today and the applicant for parenting orders in the substantive proceedings), and the mother (who is the respondent today and who was the respondent in those parenting proceedings), parenting orders were made with the consent of the father and the mother by my colleague, Justice Kent. 

2. Party to those proceedings and also to the orders that were made on 6 May 2013 was an Independent Children’s Lawyer who had previously been appointed by the Court and nominated by the Legal Aid Office to fill that role.  That was Mr Joe Parker, principal in the firm of Parker Family Law, which I understand is situated up in Suburb D near where the parties in this case reside.  Although a copy of the sealed Order of 6 May 2013 says Ms Bolton, who I believe to be Ms Jennifer Bolton, appeared as the Independent Children’s Lawyer, the Court’s record handed to me by my Associate reflects that that must be a mistake and that Mr Parker is recorded as having appeared on the occasion that the orders were made by consent. 

3. The orders that were made with the consent of the three parties, the mother, the father and the Independent Children’s Lawyer, include provision that the parents have equal share parental responsibility for the child, B born in 2007, who is now six years of age.  They also provided, relevantly, as follows:

   a.The child live with the Mother and spend time with the Father at all times as may be agreed between the parties, failing agreement to be at least as follows:

   i.Each Saturday for a period of three (3) hours from 9.00am until 12.00am.

   ii.That the unsupervised contact is to continue for a period of seven (7) weeks.

   iii.That for the purposes of changeover this is to occur at [Suburb C] Shopping Centre during this time.

   iv.That the Father is to remain in the [Suburb D] and [Suburb C] local area during this time.

   b.Upon satisfying Order 2(a) the Father shall commence unsupervised time with the child as follows:

   i.Each Sunday for a period of eight (8) hours from 9.00 am until 5.00 pm.

   ii.That the unsupervised contact is to continue for a period of seven (7) weeks.

   i.That for the purposes of changeover this is to occur at [Suburb C] Shopping Centre during this time.

4. After the father satisfied 2(b), that is after another seven weeks had gone by of all day Sunday time between the child and his father, the father was to commence unsupervised time with the child on each alternate weekend from 9.00 am Saturday until 9.00 am Sunday, for 24 hours which included an overnight stay.  That was to continue for a period of eight weeks with changeovers to take place at the Suburb C Shopping Centre at the start and at the end of time.

5. Paragraph (d) provided that when the father had satisfied that, that is eight weeks, the child was to start spending unsupervised time with his father on each alternate weekend from 6.00 pm Friday until 5.00 pm Sunday. Again, handovers were to take place at Suburb C Shopping Centre at the start and at the end of time.

6. The order also provided for the child to spend school holiday time with his father, but only after he had started spending time with his father on alternate weekends from Friday night to 5.00 pm on Sunday.

7. On 16 September 2013, four months after those consent orders were made, the father filed an Application for Contravention in this court and a supporting affidavit in which he alleges that the mother has contravened the orders by refusing  to allow the child to spend any time with the father at any time since those consent orders were made in May 2013. 

8. The father says in his affidavit:

   5.I was in a relationship with the mother of my child for approximately 5 years and we were never married.

   6.For the past four years, I have been back and forth many times to my Solicitor attempting to get some sort of orders in place to spend time with my child [B].

   7.In approximately 2010, I was living in New South Wales and orders were singed by [Ms Stewart] and me.

   8.[Ms Stewart’s] Solicitors did not file those orders and I was not provided with a reasons.

   9.I later moved back to Queensland to organise time with [B].

   10.I had a legal Aid Dispute Resolution Conference with the mother on 14^th of February 2011.

   11.Orders were reached but [Ms Stewart] did not comply with orders.

   Maybe paragraph 11 is incorrect, maybe an agreement was reached and Ms Stewart did not comply with the agreement because he then says:

   12.      I had to initiate proceedings in the Court which I did.

   13.The proceedings continued and I was able to spend supervised time with [B] which I did on approximately three occasions.

   14.[B] enjoyed the visits and I was very happy to finally be able to spend time with my child.

   15.Then after the three visits [Ms Stewart] ceased to attend the [Suburb E] Contact Centre and provided no reason to the centre.

   16.An order was made on 6 May 2013 by the Honourable Justice Kent of the Family Court of Australia.

   …

   19.I attended the first visit on 12.05.2013 at 9.00am at [Suburb C] Shopping Centre.

   20.I drove around the entire shopping centre and the mother was not there.

   21.I have made sure that I have attended at the allotted times on the following dates.

   22.I have attended at the allotted changeover location at [Suburb C] Shopping Centre as agreed to by the mother on 12.05.13, 19.05.13, 25.05.13, 01.06.13, 08.06.13, 15.06.13, 22.06.13, 06.07.13, 13.07.13, 20.07.13, 27.07.13, 03.08.13, 10.08.13, 17.08.13.

9. On his evidence the father attended at the Suburb C Shopping Centre every week for a number of months.  The father deposes that the mother has not attended on any of the above occasions and that he has not spent any time with his son.

10. There is no dispute in this case between the parties that the child has not spent any time with his father. The mother agrees that is the case.  However, the mother responded to the father’s allegations that she has contravened without reasonable excuse by saying that she has not contravened, that indeed she turned up to the Suburb C Shopping Centre with the child and that the father just did not turn up or find her, such as to be able to spend time with the child. When she gave evidence however, it appears that even on her own case, she did not turn up every week as was required. She said she turned up every second Saturday believing that the orders said every second week.  She says she was told that by her solicitors. 

11. I do not accept her evidence that she was told by her solicitors that the order required her to turn up every second week, because it is quite clear on the face of the orders that the orders provide for the child B to spend time with his father every Saturday for seven weeks, then every Sunday for seven weeks, before it moves to alternate weeks.  It may be that the mother misunderstood, but I do not accept that she was, in fact, told that it was every second weekend that she was required to go.

12. The mother gave evidence under oath, as I have said, that she turned up every second week and that the father just did not turn up. The father’s case is of course that he did and that the mother is not telling the truth about that.  The mother said she was at the bus stop at the required time. The father says he went to the shopping centre and went past the bus stop a number of times but the mother was not there.  

13. Having considered all of the evidence, I am satisfied on the balance of probabilities that the mother is not telling the truth about turning up at the shopping centre every other second weekend.  There are a number of particular reasons why I find in this case, regrettably, that I cannot believe the mother’s evidence when she says that and I shall just set those out now. 

14. Firstly, the mother came into the Court today and said that she had only been served with the documents in this case, about three weeks ago.  Then, however, the father’s solicitor read an Affidavit of Service that was filed that had an Acknowledgment of Service said to be signed by the mother attached to it.  The Affidavit of Service actually deposed to the mother being served with the documents two months ago, and when I showed the mother the Acknowledgement of Service she agreed that it bore her signature.  The mother then went on to say that she was not given any documents by the person who turned up and asked her to sign the Acknowledgement of Service.

15. I do not believe that because the Affidavit of Service signed by the process server deposes to the process server having given the mother the Contravention Application and the Affidavit.  I have no reason not to believe the sworn affidavit of the process server.

16. Another reason why, on the balance of probabilities,  I do not accept the mother’s evidence that she turned up, is because I heard her say in evidence today that she does not want her son to have anything to do with the father at all. When I asked her if she had her son here today would she let him go with his father for three hours, she was quite adamant that she would not and she would not let him go for child protection reasons.  She seems, as I see it, quite determined in that attitude. The determination that she holds in respect of that attitude therefore is just simply at odds with and totally inconsistent with the notion that she would have voluntarily turned up with B at the Suburb C Shopping Centre to hand him over to his father for three hours of unsupervised time as the order requires, the orders which she agreed to in the first instance.

17. Finally, one in my position, when weighing up evidence that is at odds with itself, such as the father saying he went every week and searched around for the mother and she was not there and the mother saying she was there, in order to determine where the truth lies, must look at other matters to consider where the truth might lie. Such matters as the father’s actions in going through the Legal Aid Office to obtain an agreement with the mother to be able to see the child, then pressing on to Court when he says it is not complied with, getting it to the point of a call-over where it was going to be listed for trial, getting orders by agreement which entitled him to see his child, then coming back to this Court on a contravention application to seek orders to enforce the existing orders to allow him to see his child. I ask myself why the father would  be motivated not to show up at the shopping centre to spend time with his child after all of that and going through such process.  Frankly, I just cannot accept that the mother actually turned up and the father did not, and that she therefore complied with the orders. 

18. I find that the mother has contravened the order that she agreed to when represented by solicitors in May this year on each of the occasions the father alleges in his application that she has contravened. I am satisfied that she did not have a reasonable excuse for so doing. 

19. Having found the mother to have contravened paragraph 2(a) of the Orders of Justice Kent of 6 May 2013 without reasonable excuse, I order as set out at the commencement of these reasons.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 November 2013.

Associate:

Date:  9 December 2013