PTA and SRM - [2002] FMCAfam 343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PTA & SRM

[2002] FMCAfam 343

FAMILY LAW — Contravention applications — credibility of parties — lack of clarity in order sought to be enforced — parties with very poor level of communication — case turns on its own facts.

Applicant:

PTA

Respondent:

SRM

File No:

(P)HBM 2239 of 2000

Delivered on:

10 September 2002

Delivered at:

Launceston

Hearing Date:

10 September 2002

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr Paterson

Solicitors for the Applicant:

Kim Paterson & Associate

Counsel for the Respondent:

The husband appeared on his own behalf

Solicitors for the Respondent:

Counsel for the Child Representative

Ms Trezise

Solicitors for the Child Representative:

P.L Corby & Co

ORDERS

On the two form 48 applications and the form 49 application of the husband all filed 8 March 2002, the amended response of the husband filed 2 September 2002 and the amended application of the wife filed 17 July 2002, and upon hearing Mr Paterson of Counsel for the Wife, Ms Trezise of Counsel and Mr Waterhouse for the Child Representative and the Husband in person, and upon:

a)the Court being satisfied that the wife has committed a contravention of an Order under the Family Law Act affecting children (being a contravention of paragraph 5(g) of the Orders made in the Federal Magistrates Court of Australia at Launceston on 7 August 2001);
b)the wife not having proved that she had a reasonable excuse for the contravention referred to in (a) above;
c)the Court being satisfied that the wife has, without reasonable excuse, contravened an order under the Family Law Act not directly affecting children (being a contravention of paragraph 8 of the Orders made in the Federal Magistrates Court of Australia at Launceston on 7 August 2001); and
d)the Court being satisfied that Subdivision C of Part VII of the Family Law Act applies to the contravention referred to in (a) above,

IT IS ORDERED THAT:

Pursuant to sections 70NJ(3)(b), 70NM, 112AD(2)(b) and 112AF of the Family Law Act1975, the wife do enter into a bond, with surety, for a period of 18 months, such bond to be in the form of and upon the conditions stated in the Bond annexed hereto and marked “Bond”.
The husband’s remaining form 48 contravention application filed
8 March 2002 (alleging a contravention of paragraph 16 of the Orders made in the Federal Magistrates Court of Australia at Launceston on
7 August 2001) be dismissed.
The husband do file and serve on all parties a Minute of Orders Sought relating to children’s issues and a supporting affidavit within 14 days.
For the purposes of the within proceedings, the Minute of Orders Sought be treated as equivalent to an application (“the Fresh Application”).
The husband have carriage of the proceedings commenced by means of the Fresh Application.
The Fresh Application be fixed for final hearing on a date to be advised, in late January or early February 2003 (if possible) in Launceston — with an estimated hearing time of 3 days.
The wife do file and serve a response and supporting affidavit within 21 days from the date of service upon her of the Fresh Application.
The husband’s form 49 contravention applications filed on 6 June 2002 and 22 August 2002 be adjourned to the first day of the trial (for mention only).
Notwithstanding any previous orders of the Court, and until further order, the husband have contact with the child D born 28 October 1991 by means of email or ICQ or similar Internet program on the following conditions:
a)The wife do encourage the said child to make contact with the husband as aforesaid within 7 days from the date of the within orders.
b)In the event of the said child not contacting the husband within the said period, the husband be at liberty to contact the said child by email or ICQ or similar Internet program.
c)Both the husband and the wife do retain, to the extent that they are able to do so, a printed record of the totality of each such communication by email or ICQ or similar Internet program.
Both parties have liberty to apply on short notice in relation to the implementation, variation or discharge of the orders in paragraph 9 above.
Until further order, the wife, her servants and/or agents be and are hereby restrained by injunction from causing or permitting the children D born 28 October 1991, G born 25 October 1996 and K born
20 November 1998, or any of them, from:
(a)being or remaining in the presence of S and;
(b)having any contact whatsoever with the said S.
All parties have liberty to apply to vary or set aside the orders contained in paragraph 11 above on 7 days notice in writing to all other parties.
The husband have leave to withdraw his application for the removal of the Child Representative.
The question of costs flowing from the application for the removal of the Child Representative be reserved to the trial Federal Magistrate.
All extant proceedings otherwise be adjourned to 28 October 2002 at 9.30 a.m. for a directions hearing (by way of a three-way video link).
All parties do file a Minute of Directions Sought at the said directions hearing by not later than 4.00 p.m. on 24 October 2002.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

(P)HBM 2239 of 2001

PTA

Applicant

And

SRM

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

I have before me three contravention applications filed by the husband on 8 March 2002 pursuant to orders and directions which I had made or given earlier in these proceedings. I am presently sitting in Launceston for one day only — for the purpose, inter alia, of disposing of these contravention applications. Other matters have arisen since the contravention applications were filed, and since orders were made by me in June 2002 regarding the further hearing of these matters.
It is my intention, if possible, to deal with those matters whilst I am in Launceston (to the extent that I am able to do so), and time is clearly limited. In those circumstances I propose to deliver short form reasons only in relation to the contravention applications. Should it become necessary for me to expand upon the reasons at a later stage, then I propose to do so, but at the moment, and having regard to the limited time available, I believe that it is both necessary and appropriate for me to give short form reasons only.
The first contravention application deals with the terms of paragraph 5(g) of the orders made by the Chief Federal Magistrate on 7 August 2001. It relates to contact on the husband's birthday on 29 August 2001.
The details of the alleged contravention contained in the application are to the effect that the wife knowingly and deliberately failed to present the children at the appointed place at the appointed time on 29 August 2002 — as required by paragraph 5(g). It is not in dispute that the children were not presented for contact at 11.00 a.m. on 29 August 2001.
The wife asserts that she and the husband agreed beforehand that different arrangements would adhere, and that the children would be with the husband from 4.00 p.m. to 7.00 p.m. on that day (and not from 11.00 a.m. until 4.00 p.m. in accordance with the terms of the order). The husband, for his part, denies that any such agreement was reached prior to 29 August 2001.
In his closing submission to me Mr Paterson (for the wife) suggested that there may have been a mistake or breakdown in communication on both sides — which led to each party thinking that his/her version of events was correct. Having seen and heard both parties give their evidence in this matter, and be cross‑examined, I conclude that I must reject the suggestion made by Mr Paterson in this regard.
It must be borne in mind that these parties had recently participated in a lengthy trial before the Chief Federal Magistrate, which trial led to the making of the orders on 7 August 2001. It is quite clear from the history of these proceedings that these parties find it immensely difficult to communicate and that each has significant grievances, the one against the other.
The wife asserted that she made contact with the husband (or that he made contact with her) and that the arrangements for contact on 29 August 2001 were varied by agreement. I must say that I do not believe her.
The position is that these parties are unable to agree on almost anything. If the respondent did believe that some form of agreement had been reached, then — having regard to the past history of this matter — she would almost certainly have confirmed the varied arrangements with the husband immediately. She elected not to do so, and in my view she is not to be believed when she asserts that there was a variation. I might add that I did not believe her when she said that she believed that there was a variation.
The husband suggested to the wife during the course of cross-examination that she had told him that she did not intend to take the children out of school to enable them to have contact with the husband. I do not know whether that conversation occurred. The fact of the matter is, however, that this was a school day — and I can well understand that the wife may have preferred that the children be at school rather than have contact with their father. That said, the terms of the order are quite clear.
In any event, the wife did not assert that she deliberately failed to comply with the order because it was a school day and because the children should have been in school. She based her defence to the contravention allegation upon the existence of an agreement to vary the terms of the contact order. Having found that there was no such agreement, it must follow that I find that a contravention has occurred, and that no reasonable excuse for it has been demonstrated by the wife.
Insofar as the second contravention is concerned, this relates to telephone harassment over a period of days. The period is specified in the affidavit material and was confirmed during the course of evidence as being between 30 January and 1 February 2002. It appears that, during that time, the wife telephoned the husband's place of residence on some 18 occasions. There is an allegation that she called another place on another occasion, but that particular telephone call is irrelevant for the purposes of the present proceedings.
The wife conceded that she made the calls. According to her, their purpose was to endeavour to make contact with the children during the first period of contact that they had spent without the presence of their elder brother. According to the wife, it was also the case that D, being the oldest child of the marriage, wanted to satisfy himself that the younger two children were comfortable with their father during this period and whilst he (D) was not present.
The effect, of the wife’s actions — according to her — is that again there were verbal altercations between these parties. According to the wife, she was abused by the husband when she telephoned the home. That may well be correct. But the wife continued to make telephone calls knowing, as I find, that she was not going to be successful in her desire to speak with the children. More importantly, she acted in such a way as to place D in an impossible position (if her version of events is to be accepted).
I refer in this regard to the comments that I made to Mr Paterson during the course of his address to me. The wife, on her version of events, placed D in the firing line — knowing that the husband's reaction to her (and, ultimately, to D) would be one of anger, impatience and irritability.
The husband, for his part, denied that he behaved in such a way towards to wife or to D. It is unnecessary for the purpose of these proceedings for me to determine which of the parties is telling the truth in that regard, although I have no doubt that the husband would have spoken in an angry and bitter manner during the course of telephone calls with the wife. As to whether he said the things that the wife asserts that he did, I do not know.
In my view, the wife’s actions in telephoning the husband on some 18 occasions over those days amount to harassment in the manner complained of by the husband. Further, I find that there was no reasonable excuse for the wife to have behaved in such a manner.
If the wife’s version of events is to be accepted, then it may have been appropriate for her to make one or perhaps two (and, at the most, three) telephone calls to endeavour to persuade the husband to be “reasonable” and to allow her to have contact with the children — if indeed she believed that that was a reasonable approach for him and for her to take. But to persist in the face of the husband's very predictable behaviour was, in my view, extraordinary. The second contravention has been proved to my satisfaction.
The third contravention involves an allegation that the respondent refused to transfer to the applicant the majority of the items of property specified under the relevant paragraph of the orders made by the Chief Federal Magistrate. Although paragraph 8 is referred to in the application, the relevant order is in fact paragraph 16. Mr Paterson did not take the point because the alleged contravention is clear.
The problem with this matter (from the applicant's point of view) is the order itself. It reads:
The wife forthwith transfer to the husband her right, title and interest in the tools, computer table and filing cabinet, the balance of his text books and teaching resource material and make them available for collection by the husband or his agents forthwith.
It is common ground that the wife did not make items available to the husband's agents. The husband had specified in his correspondence to the wife — which is attached to his affidavit sworn 7 March 2002 — the identity of his agents for that purpose, namely Hadspen Carriers.
That the items were not made available for collection by the husband’s agent is not the allegation that is relied upon by the husband as comprising the contravention. He relies upon the failure of the wife to deliver up certain items, and not the use of a carrier other than that nominated by the husband as his agent.
I am required, therefore, to determine — as best I can — whether the items delivered by the wife were in fact the items that she was required to deliver pursuant to paragraph 16 of the orders. The difficulty is that the orders do not clearly specify the items that had to be delivered up by the wife. The husband set out in his letter, to which I have made reference, the items that he believes are properly categorised as being teaching materials or resources and his tools — but the door always remained open for the wife to dispute the husband’s categorisation of those items.
Not surprisingly, having regard to the history of communication between these parties, the wife made no attempt to clarify the items that she was obliged to deliver up to the husband, and the husband did not seek the wife's input as to whether the items that he required were indeed the items that had to be delivered up pursuant to the orders.
The parties' level of communication is worse than poor.
Problems such as those exemplified in the previous paragraphs could certainly have been expected at all relevant times — having regard to the lack of tolerance that each displays for the other, as well as the impatience that each displays towards the other. I make no finding as to whether one is more culpable than the other in relation to those matters.
Suffice it to say that when I look at the precise terms of the order, as I am obliged to do in law, it is unclear whether the specific tools — as sought by the husband — were or were not delivered. All that the husband has said in paragraph 4 of his affidavit is that he received a few damaged hand tools, but he did not specify which tools he received or did not receive. In any event, and as I recall the evidence, the wife said that she has no other tools of the husband currently in her possession.
The reference to computer table is clear, and the husband did not assert that the computer table was not delivered. The filing cabinet is also mentioned. Again, the husband did not assert that it was not delivered, although he asserted that it was badly damaged. The "balance of his textbooks" is the expression used in the orders. It would appear that several boxes of textbooks were delivered. As to whether they are all the textbooks, I do not and cannot know.
In addition, there is reference to "teaching resource material". In his affidavit, the husband said that the wife did not deliver teaching resources — but precisely what they may be, I am not sure. The words "teaching resource material" seem to me to suggest written or printed material, or perhaps material on computer disk. The lack of clarity of the orders means that it is very difficult to determine what does or does not fall within that category of items.
If the husband had genuinely believed that the items set out in his letter under the heading “Computer Components” should be delivered up to him, then I am of the view that those items — which may be relatively expensive items, or items of some significance to him — would have been specifically referred to in the order. After all, there is reference to a computer table and a filing cabinet, and if a computer printer or laptop printer, or computer parts — or the computer itself — were to be included, then I am of the view that it would have been specified with some form of precision.
The only matter in this regard that causes me discomfort is the manner in which the wife dealt with the two microscopes. The husband clearly claimed them as being his items. Without doubt, in my view, the wife acted irresponsibly and unreasonably in deliberately choosing not to deliver those items up, and in choosing to deliver them to a school. The husband asserted that, in so doing, the wife told the school — or at least inferred — that the husband had stolen or inappropriately removed the items from the school. The wife denied that she said any such thing.
At the end of the day, and although the wife acted inappropriately in relation to the microscopes, it cannot fairly be said that a breach of the order has been demonstrated. That is because of the actual wording of the order — which carries within it the seeds of the problem now faced by the husband.
There is little that can be done by the husband if he still asserts that items have been improperly retained by the wife. He might be able to return to court to seek clarification of the terms of the order — but I express no opinion in relation to that subject. As matters presently stand, however, it is not open to the husband to insist that his definition of what does and does not properly fall within the meaning and contemplation of the order should be preferred to the wife’s definition. I cannot conclude that the wife intentionally failed to comply with the terms of the order, or that she made no reasonable attempt to comply with it. Further, even if it could be considered that a contravention had occurred, I am satisfied that such contravention occurred because, or substantially because, the wife did not — at the relevant time — understand the obligations imposed by the order on her. She certainly did not understand those obligations in the same way as the husband did. And I am satisfied that, if a contravention did occur in such circumstances, then the wife ought to be excused in respect of it. The third contravention will be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: