R and R - [2003] FMCAfam 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2003] FMCAfam 69

FAMILY LAW – Contravention application – variation of orders – undertaking to comply.

Family Law Act 1975, s.70 NJ(3)(b)

Applicant Mother:

MJR

Respondent Father:

CJR

File No:

DGM 42 of 2001

Delivered on:

26 February 2003

Delivered at:

Dandenong

Hearing Date:

26 February 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant Mother:

Ms M. R appeared on her own behalf

Counsel for the Respondent Father:

Mr Munt

Solicitors for the Respondent Father:

Alan J Munt

ORDERS

Upon the Respondent undertaking to comply with the Orders of this Court as amended in relation to contact and upon finding that allegations numbered 1 to 3 in the Applicant filed on 22 November 2003 proved with allegation 4 therein dismissed and upon finding the allegation in the Amended Application filed on 26 February 2003 proved.

That Order 12 of the Orders made by the Court on 21 June 2001 be varied to provide that after the word “ill” in the first line there be added “and/or injury” and after the word “wife” on the second line there be added the words “at the earliest opportunity”.
That Order 2(a) of the Orders made on 13 September 2002 be varied whereby after the word “residence” in the last line of that order there be added "no later than by 9.15 a.m.

AND THE COURT NOTES

THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGM 42 of 2001

MJR

Applicant Mother

And

CJR

Respondent Father

REASONS FOR JUDGMENT

(Revised from Transcript)

This is a contravention application of child orders brought in this court by MJR, (the Applicant Mother). The original application in this matter filed 22 November 2002, referred to four allegations against CJR (the Respondent Father).
The allegations relate to contravention of orders for contact made on

13 September 2002. Those orders amended earlier orders of the court made on 1 June 2001 and provided for a return time of the children. The first and second of those allegations are admitted namely in breach of the orders made by the court on 1 June 2001 the children in this matter were returned to the residence of the Applicant Mother at 7.10 p.m. and not at the ordered time of 6.00 p.m. and secondly that on Sunday, 20 October 2002, the children were returned to the residence of the Applicant Mother at 6.45 p.m. and not at the ordered time of 6.00 p.m.
Charge 3 relates to an incident on 3 November 2002 where again it is alleged in breach of order 2(a) the children were returned to residence at 7.50 p.m. and not at the ordered time of 7.00 p.m. That charge has been denied.
Charge 4 relates again to an alleged breach of order 2(a) in that on Monday, 18 November 2002, at the end of the weekend contact the Respondent Father on that occasion having returned B and F to school failed to return N, the third child, to the Applicant Mother at her residence.
By an amended application which has been by consent the subject of these proceedings and filed on 26 February 2003 amending an application 24 February 2003, it is alleged as a fifth allegation that on Sunday, 9 February 2003, the Respondent Father failed to inform the Applicant Mother regarding any of the details about the eldest son, B, having broken his front tooth during contact. That is said to be a breach of order 12 of the orders made by the court on 1 June 2001.
For the sake of completeness I refer in more detail to the orders made on 13 September 2002 including order 2(a) which provided that the Respondent Father have contact with the children: BCR (the first child) born 16 July 1992; FJR (the second child) born 2 June 1994 and NWR (the third child) born 20 November 1998 as follows:
a)For the eight-week period each alternate weekend from 9.00 a.m. Saturday until 6.00 p.m. Sunday commencing 16 June 2001;
b)Thereafter each alternate weekend from 6.30 p.m. Friday until 6.00 p.m. Sunday non-daylight saving hours and 7.00 p.m. Sunday daylight saving hours.
Order 9 of the orders made on 1 June 2001 I should refer to as being relevant, provides that for the purpose of contact the Respondent Father collect and return the children from the Applicant Mother's residence and not enter upon the Applicant Mother's property at such times that the Applicant Mother not proceed beyond her dwelling.
Order 12 of those orders provides in the event any of the children are ill during contact the Respondent Father inform the Applicant Mother and ensure the children attend EB Medical Group Surgery, save in an emergency.
The orders that were made by the court on 13 September 2002 were made in circumstances where I am satisfied there had been at least an issue agitated before that court as to the collection and return of the children for contact by the Respondent Father. In any event the court, on that occasion, decided not to vary the orders which had been made earlier in relation to that issue, that is to not vary order 9 of the orders made on 1 June 2001.
The court did, however, make an order that those orders on 1 June 2001 be varied:
“(a)by deleting paragraph 2(b) and providing in lieu ‘thereafter each alternate weekend from 5.00 p.m. Friday until 6.00 p.m. Sunday (non-daylight saving hour) and 7.00 p.m. Sunday (daylight saving hours), save that on each third contact weekend commencing the second contact weekend following the making of these orders the contact extends to Monday morning and the Husband return B and F to school and N to the wife’s residence”’
It is not necessary for me to recite those orders any further.
It is clear in my view, having heard the evidence and read the affidavit material relied upon by both parties that in this case regrettably there is a significant and major failure on the part of the parties to make some attempt to establish what might otherwise be regarded as a sensible means of communication in the interests of the children. Despite there being counselling it would seem that the parties have not yet reached agreement on the best method of communication.
During the course of the proceedings I have considered and discussed with the parties the issue of creating a communication book to be placed in a sealed envelope so that when contact occurs that be the means of communication between the parties.
I do not propose to make an order to that effect, but simply recommend it to the attention of the parties and urge them to consider that or some alternative means of communicating.
On the evidence before me, however, I am satisfied, having heard the applicant and Mr B that in the circumstances of this case an alternative means of transport is not available to the mother to participate in the collection and return of the children and that, in any event, the order of the court, that is order 12, should remain. That issue only became relevant in terms of how I might dispose of this matter and what orders, if any I may make, should I be minded to do so in relation to the powers I undoubtedly have under s.70 NJ(3)(b) of the Family Law Act 1975.
In relation to the charges, it is clear that the first and second counts are admitted. The circumstances by way of explanation that have been offered by the respondent in relation to the first of those allegations is that he had arranged at the end of the week's contact period for the children to attend a horse-riding lesson. In effect that meant that there were four children sharing horse-riding lessons with one horse. I am satisfied that at the time when that booking was made it ought reasonably to have been clear to the father that it was unlikely in all the circumstances that having commenced those lessons at 3.00p.m. at a place which is agreed to be an hour and 10 minutes away from the mother's residence that he would then be able to comply with the order and return the children as scheduled at 6.00 p.m.
In the circumstances, whilst the explanation offered is that the horse-riding lesson is said to have run late or over time and whilst there was some attempt to contact the mother to explain the delay, I am not satisfied that that arrangement was an arrangement which is an appropriate arrangement in all the circumstances. However, I find that that was an arrangement made with disregard for compliance with the orders rather than what I would find to be an intentional act. It was more a reckless disregard which, in some circumstances, may well constitute or amount to an intentional act. For the present purposes

I am prepared to give the benefit of the doubt to the respondent in relation to that issue.
In relation to the second matter which is the further admitted count, again an explanation has been offered which I totally reject. The explanation offered was that there was a bus which apparently was parked outside the residence of the respondent's mother which is some 200 metres from the mother's residence and that that bus at 5.55 p.m. on the relevant day apparently could not be started. The children expressed a desire to travel in the bus and it was not until some time later that the bus was started and the journey of some 200 metres completed.
The explanation that the children wanted to travel on the bus and that therefore justified in some way the late return of the children in circumstances where there was no notice to the mother shows and demonstrates in clear terms an absolute disregard on the part of the respondent for compliance with the order and, at the very least, a preference of the children's wishes over the parents' obligations to comply with the orders and hence that contravention was quite properly the subject of an admission but also in the circumstances I do not accept that there was any reasonable explanation. Again, however, whilst it is obvious that there was an intention to ensure the journey was completed in the bus, I am not prepared to find that it was an intentional breach of the order but it was obvious at that stage that that order would have been breached and again, that amounts to what I regard as reckless disregard for compliance with the orders.
The allegation number 3 relates to an incident on 3 November 2002.

I accept on the evidence that in fact that breach has occurred and I further accept that in the circumstances on that occasion again it showed a reckless disregard for compliance with the orders; that is the children were returned at 7.50 p.m. rather than 7.00 p.m.
I have indicated during the course of submissions that the fourth charge, which relates to an incident in relation to the return of N on 18 November 2002, is not a charge which, in my view, having regard to the strict requirements of contravention cases can be made out and that is simply because regrettably the orders made by the court on

13 September 2002, in my view, do not provide sufficient clarity as to the return time of the child, N. I accept, however, that a reasonable reading of the order would at least lead the parties to infer, as indeed I think the respondent concedes, that N, in normal circumstances, should be returned at least immediately after the other two children have been returned to school on Monday morning.
In the circumstances, whilst I dismiss that charge, it is my view that the orders made on 13 September 2002 and in particular order 2(a) should be amended by inserting after the words "N to the Applicant Mother's residence" the words "by no later than 9.15 a.m." and I will make that order in due course.
The fifth allegation which was the subject of the amended contravention order is a matter which has caused the court a great deal of concern. It seems to me that in circumstances where there is an order, albeit again perhaps not in terms which I would regard as necessarily as precise as I would prefer, nevertheless provides a clear indication that if, during contact, a child is ill – and I am prepared to infer that means and/or injured – that the Respondent Father should inform the Applicant Mother. It seems to me that that should be at the earliest possible opportunity.
On this occasion the incident occurred around midday. There as no information given until the return of the child at 6.00 p.m. or around 6.00 p.m. I think that day. In the circumstances it is clear from exhibit A1, a photograph of the child concerned, that he suffered a significant damage to the front tooth. If nothing else, apart from the description of the injury which involved bleeding of the lip where the tooth had apparently penetrated the lip causing bleeding, it required an inspection of the tooth, a determination of the extent and nature of the damage. In my view, a parent acting responsibly in those circumstances, if for no other reason than to ensure that the tooth was repaired in a most efficient and timely manner, would have attended to that matter promptly and would have arranged appropriate emergency medical treatment at a dental surgery and/or dental hospital. I do not accept that it was appropriate in the circumstances to delay that simply because the child appeared to be conducting himself normally in terms of play.
It is conceded, it seems to me, and in the circumstances it should be conceded if not, that it is not a life-threatening condition, nor was it a condition that would otherwise prevent the child from continuing to enjoy the rest of his day. The fact, however, is that a substantial portion of his front tooth was broken and repair of that should be undertaken at the earliest opportunity. I accept in those circumstances it would have been more prudent for the father to act in a more expeditious way. Again, I do not find, however, that that was necessarily an intentional breach; I find, however, that breach has occurred. I am satisfied that again it was, in this case, simply a lack of judgment on the part of the father and that there was no wilful intent as he perhaps failed to realise the significance of the need for cosmetic attention to be earlier rather than later and/or the need to protect the nerves of the tooth at an early stage.
Having regard to those findings, I therefore find that those charges 1, 2, 3 and 5 are proved. It then remains to consider what action should be taken.
Having regard to my findings in relation to the issue of whether or not the breaches were intentional, it seems to me that in the circumstances of this case the proper approach is for the court to in fact seek to ensure that these orders are now clarified and I am able to do that by varying orders contravened and I accept that I have inherent power, albeit having dismissed the alleged charge 4, I still have power, in my view, to amend that order to make clear the return time for N.
Having found a contravention of what I have described as charge 5, in the circumstances it is appropriate that I amend order 12 of the orders made 1 June 2001.
I am prepared to make those amendments. Having made the findings, provided that the respondent is prepared to enter into an undertaking to this court, in the appropriate form, to comply with the orders of the court as amended in relation to contact. I do not propose making any further orders.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 26 February 2003