Ragendi and Ragendi

[2011] FamCA 62

FAMILY COURT OF AUSTRALIA

RAGENDI & RAGENDI [2011] FamCA 62

FAMILY LAW – CONTRAVENTION – With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Ms Ragendi

RESPONDENT: Mr Ragendi

FILE NUMBER: MLC 731 of 2008

DATE DELIVERED: 28 January 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 January 2011

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the mother’s application for contravention filed 30 September 2010 is dismissed.

2. That paragraph 4.4 of the orders made 18 December 2009 is discharged.

3. That until further order, the child J born … February 1999 spend three days with the wife from 9.00am on the Tuesday to 7.00pm on the following Thursday in the first week of each school term and Christmas holidays noting that such time is in addition to each Sunday during the school holidays.

4. That for the purposes of all orders, the child is to be delivered by the husband to the wife at her parents’ residence and collected there from at the conclusion of contact.

5. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 731 of 2008

MS RAGENDI

Applicant

And

MR RAGENDI

Respondent

REASONS FOR JUDGMENT

1. This is an application by Ms Ragendi, to whom I shall refer in these reasons as the wife, seeking to have Mr Ragendi, to whom I shall refer as the husband, dealt with for breach of an order made by the Federal Magistrates Court of Australia on 18 December 2009. 

2. The application was filed on 30 September 2010 returnable on 29 November 2010.  On that day, Hartnett FM transferred the proceedings to this Court at a time when both parents appeared before her Honour unrepresented.

3. Two important things need to be said about that order.  The first is that in addition to transferring the proceedings, her Honour made an order that the father had leave to file a variation application.  It is common ground that that application was not filed, and the father said that he was going to get around to do it, but has to work full time.  I am now going to give him the impetus to fix the problem.  He now, I hope, understands how the Court will deal with the applications for the future and what sort of material he is going to need.  It might assist both parties in this case if they obtain some legal advice before they file their applications. 

4. The second matter to note about the order is that it contains a notation that reads:

   This litigation has a long history and is a complex matter.  The case management practices at that Court might better assist these parties and their child.

   I am not at all convinced that the case management practices of this Court are any better than those of the Federal Magistrates Court, and it seemed to me that the better way to solve the problem was to simply hear the contravention application, and that I have done today.

5. The wife made three allegations.  The first and second of those allegations relate to Sundays, 19 September and 26 September 2010 respectively.  The allegation is that the husband failed to produce J, who is now aged 12.  Two possible explanations have been given why the child did not go on that day.  The first relates to her own desire not to be there;  the second relates to the question of whether she may not have needed to go because it was school holiday time.  I shall return to that subject in a minute. The third allegation relates to the husband failing to comply with the order to produce the child for the September school holidays.

6. There can be no breach in that third allegation, because the order of December 2009 reads:

   For any further time, including overnight time and some holiday period overnight time, as agreed between the wife and the husband and subject to the child’s wishes. 

   Clearly, what that means is that the husband and wife have to agree before even contemplating the wishes of the child.  Why a court might make an order that gives a 12 year old child the opportunity to veto an agreement between her mother and father I am not sure, but it certainly seems to me that having regard to the defence raised by the husband, that is not an appropriate order to make.  In addition, it means that it is most unlikely that there will ever be school holiday periods between mother and child without everybody, including the child, agreeing.  That also seems illogical.

7. Insofar as it is said that there is no Sunday afternoon contact during the school holidays, that is not an interpretation of the order that I accept.  The order of December 2009 requires the child to spend each Sunday, and that is 52 Sundays of the year, with her mother from 12 noon to 6 pm.  The order relating to extended time says, “Any further time”. It must mean, therefore, that regardless of school holidays, the child is to spend every Sunday with her mother. 

8. There is little doubt in this case that the child has a significant say in what is occurring.  That is not appropriate.  I understand there is a long history in this case going back for a period of some nearly 10 years.  But I must deal with the orders before me.

9. I find that what happened on 19 September and 26 September was that the husband and the child discussed the issue of that period of time being school holidays and came to an agreement between themselves that if the child went on 19 September, she might end up not being returned by the wife and being kept for the full week.  Had that occurred, it would have been the wife who would have been in breach of the order, and the child may very well have been subject to being collected by the Australian Federal Police under a recovery order.  Any parent who took that attitude would be very irresponsible.

10. By the same token, the order was clear.  There was no provision for school holidays without all parties agreeing, and on that basis, the husband had an obligation to produce the child on 19 September.  The same must apply for 26 September, and at that stage, it is not at all clear why the child did not go; the Sunday order still prevailed.  Neither of the parties today has really addressed the significant issue in this case, and that is that there is an ongoing dispute between them with the child in the middle of it.

11. Section 70NAC says that:

    A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

    (a)      where the person is bound by the order--he or she has:

    (i)       intentionally failed to comply with the order; or

    (ii)made no reasonable attempt to comply with the order; or

    (b)      otherwise--he or she has:

    (i)intentionally prevented compliance with the order by a person who is bound by it; or

    (ii)aided or abetted a contravention of the order by a person who is bound by it.

12. It is clear that in respect of 19 September and 26 September that the child did not go on the Sundays that she should have. 

13. In my view, there is no basis for the third allegation, because there was clearly no agreement between the parties, let alone the child, about the school holidays.  The third allegation must be dismissed.

14. Section 70NAE of Family Law Act says that a person may be taken to have had a reasonable excuse for contravening the order if one of a variety of things occurs.  One of those things is if, in this case, the husband believed on reasonable grounds that not allowing the child and her mother to spend time together was necessary to protect the health or safety of either mother or child and that that contravention or the period of it only continued for as long as was necessary to protect the health and safety of the child and/or the parent.

15. If it is clear that that argument is going to be put, then immediately after the first retention of the child, the husband should have made an application to the Court to vary the existing orders at least in respect of the Sunday.  He did not.  He says there have been many problems in this case and they are ongoing.  I am prepared to give him the benefit of the doubt in this case.  The standard of proof is the balance of probabilities.  I am satisfied that he is probably within reasonable grounds to say that he did not quite believe that the child would not be returned in respect of the first Sunday, and I am not at all clear on what the position was in respect of the second Sunday.

16. The wife, who has not been represented by a lawyer, has really been at the disadvantage of not being able to cross-examine the husband about those matters.  Rather, she spent most of the time cross-examining him about past history and questions of abusive conduct, all of which is disputed.  The real issue in this case is whether the husband was within his rights on those days to not deliver the child, as he should have.  He now understands about the obligations under the order.  In respect of the two allegations of 19 and 26 September, I am not satisfied on the balance of probabilities, and they are dismissed.

17. Section 70NBA of the Act enables a court once the contravention is concluded to then activate the powers under Part VII of the Family Law Act to make various orders to ensure that the existing orders work. I have suggested that one of the solutions is handover at a contact centre. The unfortunate thing is I do not have any evidence as to when a contact centre could take these parties, nor do I have any indication as to the geographical limitations. It seems to me the sensible solution is for me to simply ensure that the order is clear about the Sundays so that the husband delivers the child to her mother at the mother’s home, and that he collects her at the conclusion of that contact at the 6 o’clock appointed time. That clarifies the order so that the obligation is clear.

18. Insofar as the child may say she does not want to go, the husband will have to say to the child that he is ordered by the Court to ensure that she is delivered, and if he thinks that that is not in the child’s best interest, he will need to make an application to vary the order that has been standing for over a year. 

19. As I have already said, paragraph 4.4 of the 2009 order clearly cannot stand, because it will never happen that time is spent by agreement. 

20. The solution at this stage is to fix a period of time in each school holidays and for the husband, if he thinks that is too much time, to make an application to vary the order, and if the wife thinks it is not enough, she can respond or make an application herself to increase the time. 

21. The principle that underpins the provisions in the Family Law Act is set out in section 60B. It says that the objects are to ensure that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of that child.  Another object is to protect children from physical or psychological harm by being exposed to abuse, neglect or family violence. 

22. A principle that underpins those two objects is the children have a right to know and be cared for by both their parents and to spend time on a regular basis with and communicate on a regular basis with both parents.  In circumstances where both of the parents cannot communicate with one another and have to agree on the time, the objects and principles of the law are not being met.  Neither parent has done anything about seriously trying to work out the problem, albeit that they have had over 10 years in the court system.  The Court can only do so much, and the parents need to sit down with a psychologist and work out what is best for J’s future.

23. I am going to put in place some orders that will overcome the problems of J having a say at the age of 12.  I find that the orders as I have indicated are in the best interests of the child, and I propose to make orders in those terms.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 January 2011.

Associate: 

Date:  15 February 2011