Pickering and Pickering (No 2)

[2010] FamCA 979

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO. 2) [2010] FamCA 979

FAMILY LAW – CHILDREN – where the father has filed numerous contravention applications – where the material does not establish the contravention alleged – held that the mother contravened the orders with reasonable excuse – applications dismissed

Family Law Act 1975 (Cth) ss 70NAC

APPLICANT: Mr Pickering

RESPONDENT: Ms Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 27 October 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 27 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: n/a

COUNSEL FOR THE RESPONDENT: Mr Eid

SOLICITOR FOR THE RESPONDENT: Nicholls Gervasi & Co

Orders

1. I dismiss both the father’s Contravention Applications filed on 22 September 2010 (being documents 89 and 91 on the Court file).

2. Matter adjourned to 10.00 am on Thursday 28 October 2010 before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919 of 2005

MR PICKERING

Applicant

And

MS PICKERING

Respondent

EX–TEMPORE REASONS FOR JUDGMENT

1. The allegations in the first contravention application on the very face of the application, refer to matters done by the mother’s partner, Mr X, rather than alleging contraventions by the mother.  There is nothing in the application particulars itself, nor the supporting affidavit which establishes the basis upon which a contravention by the mother could be established.  Therefore, the case to answer has not been made out in relation to those contraventions alleged in the document filed on 22 September 2010 (document 89). 

2. Bearing in mind the particular wording of the contravention, the affidavit, and the parties to the order of the Court which is alleged to have been contravened, I am satisfied that it has not been made out that there is a sufficient allegation in the proper form to which the mother need respond namely, the material does not establish a contravention on the part of the mother, and I propose to, and do, dismiss that contravention application. 

3. We now turn to the next matter which is the contravention application filed also on 22 September (document 91) which alleges contravention on 28 June 010 at 9.00 am of paragraph 3, subparagraph (1) of the order of 22 October 2008.  Paragraph 3 (1) states:

   “The said children spend time with the mother as follows, upon noting that the time [M] spends with the mother should be subject to [M’s] wishes.”

   subparagraph (1) of that is:

   “Each alternate weekend from the close of school on Thursday to commencement of school on Monday, extended to Tuesday in the event of Monday being a public holiday or pupil free day, commencing Thursday, 23 October 2008.”

4. 28 June 2010 was a Monday.  The actual contravention alleges:

   “That the mother failed to deliver the children into my care at 9 am, as ordered by the courts.  She failed to send them to school and deliver them to the paternal grandparents, as agreed upon by default.  […].”

5. The affidavit in support is filed on 22 September 2010 which recites similar material.  It then refers to telephone calls. 

6. This is the application by way of contravention filed by the father on 22 September 2010 in relation to an alleged contravention said to have occurred on 28 June 2010.  The contravention application refers to the contravention being in relation to paragraph 3, subsection (1), of the consent order of 22 October 2008.  That order provides:

   “That the children spend time with the mother each alternate weekend from the close of school on Thursday to the commencement of school on Monday, extended to Tuesday if Monday is a public holiday or pupil free day.”

7. The 28 June 2010 was neither a Public Holiday, nor pupil free day, and in the normal course of events, the mother was to spend time with the children from the close of school on the previous Thursday to the commencement of school on Monday, 28 June 2010.  The mother, in fact, did spend time with the children from the close of school that Thursday and to the commencement of school on the following Monday.  However, they were not returned to the father’s care when they did not attend school on that Monday morning.

8. The reason they did not attend school at 9.00 am that Monday or, indeed, at all that day is the mother had difficulties with her transport.  Her car had broken down.  Her evidence was that she expected it to be repaired in time to get the children to school at around 10 o’clock that day.  That did not happen, and she was not able to deliver the children to school.  Eventually, after some communication between the parties, the children were delivered to the father at his parents’ home at 1.30 pm that day. 

9. The submissions were made at the commencement of the hearing of this contravention that the proceedings should be dismissed summarily, because they failed to indicate an appropriate basis for the contravention, but I allowed the matter to proceed.

10. I did so notwithstanding that there was some difficulty in maintaining the contravention where it refers to paragraph 3 (1) when, in fact, the consent order specifically provided that the children live with the father.  That is in paragraph 1 of the order.  Paragraph 4 of the order, there is reference to handovers occurring.  It says:

    “That all handovers not occurring at the children’s schools are to occur at each other’s homes, and in default of agreement, then to be at the maternal grandparents’ home at the commencement of times the children are in the mother’s care and the paternal grandparents’ home at the conclusion of the times the children are in the mother’s care.”

11. The specific contravention relates to 9.00 am on 28 June 2010.  Having heard the evidence of both the father and the mother, I accept the evidence that there was communication passing between the parties by way of telephone calls or texts and that the father became aware at some time during that morning that the mother was unable to deliver the children to school because of difficulties with her motor vehicle.  I accept the evidence of the father that he says he received a text from the school telling him that H had not been delivered to school that day.

12. The difficulty in relation to the technical problems of the contravention need not be decided because of the evidence, which I accept from the mother, that she did not intentionally fail to take the children to school for the commencement of school on Monday, and that when she became aware that there were difficulties with her motor vehicle, she undertook reasonable attempts to make arrangements for the children to be either delivered to school or delivered to the paternal grandparents’ home. 

13. In her evidence-in-chief in her affidavit and her oral evidence in cross-examination, the mother made it quite clear that she was aware that the order provided for the children to be delivered up to school at the commencement of school and that if she was unable to do so, then they should be delivered up to the paternal grandparents’ home.

14. She was not in any way significantly challenged about her inability to get the children to school on time because her car had broken down and because she had to make other arrangements at short notice.  Those other arrangements were made as soon as her partner’s car became available, and the children were delivered up to the father at the grandparents’ home. 

15. Section 70NAC requires:

    “That a person is taken to have contravened an order under this Act affecting children if, and only if, the person has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.”

16. I am not satisfied that it has been established that the mother intentionally failed to comply with the order or made no reasonable attempt to comply with the order.  Rather I accept the mother’s evidence that she did not intentionally fail to comply with the order.  I also accept the mother’s evidence which indicated that she made reasonable attempts to comply with the order once it became known to her that there were difficulties.  If I am incorrect in relation to that conclusion, then the mother has also established the requirements of a reasonable excuse for contravening the order for the short time, which passed between the commencement of school and the delivery up of the children to the father at 1.30 pm or thereabouts on 28 June 2010.

17. I, therefore, find that it has not been established that the mother contravened the Court orders on 28 June 2010 without reasonable excuse and dismiss the contravention application (document 91).

18. This matter was listed for hearing of the contravention proceedings, and orders were made on 21 October 2010 for the five contravention applications to be heard today and, if necessary, on 28 and 29 October before me. 

19. The father was present by telephone link when that listing took place.  The contravention proceedings now bring the total number of documents up to 100 on the Court file. 

20. The contravention applications are brought by the father and being opposed by the mother.  The situation is that when an issue was raised by me this morning, it became apparent for the first time that the father expected to be able to leave the Court premises at 2.15 pm in order to collect one of the children from school. 

21. He had not made any arrangements whatsoever to enable the Court to continue to sit to hear these matters in its normal hearing time, up to 4.15 pm.  The father was requested to see what he could do during the luncheon adjournment to make arrangements for the child to be cared for.  He was unable to do so.  He now seeks that the matter be adjourned.  The Court would not normally countenance such an adjournment, however the father asserts that he is unable to make other appropriate arrangements for the proper supervision of his daughter, S who is aged nine, nearly 10.  Therefore, the Court regrets that it has no alternative but to accede to the request for the adjournment.

22. Mr Eid quite properly puts a proposal to the Court that his contravention applications, still outstanding, be dismissed because he will not be present to continue to press for them.  However, I will not grant that application but will adjourn all applications back before me at 10.00 am tomorrow. 

23. On the question of costs of this afternoon, it is quite clear that the lack of notice and no other appropriate explanation from the father, the circumstances of the adjournment would, clearly, warrant an order for costs, if the mother does indeed incur costs above and beyond that which she was anticipating if the matter proceeded in the normal event.

24. I will hear further in relation to the application for costs if the matter proceeds beyond tomorrow and indicate that, at this initial stage, I am in favour of the wife’s application for costs subject to considering the other issues of financial circumstances and other matters relevant to that application for costs. 

25. I therefore adjourn the remaining contravention applications to continue before me at 10.00 am tomorrow, noting that I have clearly set aside tomorrow and, if necessary, the following day.  I will hear further upon those matters and the question of costs.

26. The matter now stands adjourned to 10 o’clock before me tomorrow.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 27 October 2010.

Associate: 

Date:  4 November 2010