Palantine and Palantine

[2011] FamCA 427

FAMILY COURT OF AUSTRALIA

PALANTINE & PALANTINE [2011] FamCA 427

FAMILY LAW – CONTRAVENTION – Contravention established

Family Law Act 1975 (Cth): s 69ZV, 70NAF(1), 70NBA(1), 70NBA(2)

APPLICANT: Mr Palantine

RESPONDENT: Ms Palantine

INDEPENDENT CHILDREN’S LAWYER: Ms L Strong

FILE NUMBER: CAC 2273 of 2007

DATE DELIVERED: 10 May 2011

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented litigant

COUNSEL FOR THE RESPONDENT: Ms B Smithies

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission ACT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms L Strong

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms L Strong, Strong Law Pty Ltd

Orders

IT IS ORDERED THAT:

1. In relation to the first allegation alleging a breach of Order 34 made by consent on 8 February 2011.  I find that the allegation is made out and decline otherwise to impose a penalty.

2. In relation to the allegation that the mother was in breach of Order 27 I find the allegation not made out and dismiss that part of the application. 

3. I further dismiss that part of the application relating to the mother’s provisions for the children of a mobile phone and texting them while they are with their father. 

4. Pursuant to s 70NBA I vary Order 34 made on 8 February 2011 the present order is discharged and the following is substituted therefore. 

   a.      The mother will provide clothes sufficient to the children’s needs for their time with the father (including a change of clothing) and the father shall return all of those clothes with the children at the end of that period of time.

5. That application is finalised and removed from the pending cases inventory.

6. In relation to the Application in a Case filed on 29 March 2011 is dismissed.

7. I reserve some time at 10am on 31 May 2011 for the purposes of the father making, if he wishes to do so, an oral application for stay of the assessment arrived at by reason of the partial allowance of his objection to the determination under objection of the mother about child support and to permit the mother to respond orally on oath if she wishes to do so in opposition to the stay if she wishes to do so. 

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 2273 of 2007

Mr Palantine

Applicant

And

Ms Palantine

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings with which I am dealing are constituted by an application filed on 29 March 2011 by the applicant father seeking that the respondent mother be dealt with for a contravention without reasonable excuse of orders made by consent on 8 February 2011. 

2. Those orders make a number of provisions in quite detailed terms about a significant number of matters relating to the children and the time that they will spend with each parent but more particularly with their father. 

3. The assertions about the breaches of the orders relate to an allegation that the respondent mother has not supplied sufficient clothing or adequate clothing for the children in breach of order 34 made on the day referred to above. 

4. Second, the mother had physically punished the children in breach of order 27 made in the suite of orders referred to above. 

5. The third allegation related to the fact – it was asserted by the father and, in fact, not denied – that the mother had supplied the children with mobile phones and sends them text messages during the time spent with the father.  It is clear and acknowledged by the applicant father that there is no specific order which prohibits the supply of mobile phones or, indeed, from the mother sending them text messages during the time the children are with their father.  I have already indicated that allegation is dismissed. 

Discussion

1. I turn to the issue of the supply of clothing.  This really is a question of degree rather than of substance in the sense that it is asserted by the father and, in fact, agreed by the mother that the clothing supplied for the children involved their pyjamas and a change of underwear and, to the extent that it was relevant, either (whether they are wearing it or not) a jacket.

2. The issue between the parents is really whether in the terms of the order these were clothes “sufficient” for the children’s needs for their time with the father. 

3. This is to some extent a matter of judgment.  It is extraordinary in part that this is something that should be occupying the time of the Family Court of Australia – a Superior Court of Record – after the substantial litigation the parties have been engaged with.  But to the extent that it is here and the jurisdiction of this Court has been invoked it is necessary for me to make a decision. 

4. In coming to a conclusion about this matter, I am obliged to make the decision on the balance of probabilities[1] – in other words, if it is more likely than not that something has occurred. 

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

5. In this matter, there is no particular finding of fact that I need to make.  It is agreed by the parties that the children are supplied only with their pyjamas and underwear and a jacket.  The assertion by the applicant father is that the children have other clothing and it would be reasonable for them to have not less than a change of clothing sent with them for the time that they spend with him. 

6. In reply, the respondent mother on her oath says that the clothing that they have is adequate for the day that they are with their father and that she has limited financial means to provide clothing of a more extensive type.  It became clear in cross-examination the children do have other clothing.  The extent and nature of the other clothing is not entirely clear to me.  In my opinion, it is reasonable that children should at least have a change of clothing when they go to their father.  It is not a matter upon which I feel that a lot turns, but in my opinion, the alleged breach of order 34 has been made out.

7. In relation to the allegation that there has been a breach of the order relating to the punishment of the children, the only evidence in relation to this as is admitted by the children’s father is that contained in paragraph 9 of his affidavit filed in support of his application for contravention. 

8. In this regard, the evidence amounts to this:  that C asserts that E had received a smack from her mother two days before the time that they spent with their father had commenced and that this had been corroborated by E. 

9. This is necessarily – and this is not a criticism of anyone – hearsay evidence which is not going to be the subject of any cross-examination, because it is inappropriate the children should be involved in the dispute in that way. 

10. I am entitled to take account of it as evidence under the Family Law Act 1975 (Cth) (“the Act”) as a representation made by the children.[2]  That, however, does not require me to make a finding based on that allegation – based on that evidence alone. 

    [2] Family Law Act 1975 (Cth) s 69ZV refers.

11. In this matter, I have had the evidence of the mother in the witness box in which she denied clearly (and categorically) that she had, in fact, smacked E on the Friday before.  I accept her evidence in this regard.  As such, the allegation in relation to punishing of the children is not made out and is dismissed.

Conclusion

1. In this matter, the consequences of a breach of an order of this Court is that I could impose a certain number of penalties (Division 13A: Subdivision F of the Act refers) which include the imposition of a sentence of imprisonment, placing the respondent wife on a bond, sentencing her subject to assessment that it would be appropriate to do so (which would take some time) to community service orders or, as in my opinion is appropriate in this matter, that I simply note that there has been a breach of the order and decline in the circumstances to impose any penalty.

2. I take advantage, however, of the terms of the Act, which in summary form provide that when proceedings are brought under this Act and whether or not the person has been found to have committed a contravention, the Court may vary that order.[3] 

   [3] Family Law Act 1975 (Cth) s 70NBA(1) refers.

3. In taking into account the variation of the orders, I am obliged under s 70NBA(2) to take account of a certain number of factors, but I am not limited in the sorts of order that I may make. 

4. Having discussed the matter with both parents, or with the father and with Ms Smithies on behalf of the mother, I choose and in the circumstances agree that it is appropriate that I should amend order 34 in accordance with my orders today. 

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 10 May 2011.

Associate:

Date: 9 June 2011