Raglan and Valance (No. 2)

[2007] FamCA 1506

FAMILY COURT OF AUSTRALIA

RAGLAN & VALANCE (NO. 2) [2007] FamCA 1506

FAMILY LAW – CHILDREN – Contravention proved – Parenting course

Family Law Act 1975 (Cth)

APPLICANT: Mr Raglan

RESPONDENT: Ms Valance

FILE NUMBER: MLC 12465 of 2007

DATE DELIVERED: 5 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Justice Bennett

HEARING DATE: 5 December 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr D.E. Whitchurch

SOLICITOR FOR THE RESPONDENT: Macgregor Solicitors

Orders

1. I That the respondent mother have leave to make an oral application for counselling pursuant to section 65(f)(ii) and to make an oral application for an adjournment and I dismiss both applications. 

2. That the Court being satisfied that the respondent mother did without reasonable excuse fail to comply with paragraph 3(a) of the Orders made on

   
   

   13 December 2006 in that she failed to make the children K born … July 2003 and S born … November 2005 available to live with the father from 10am on Wednesday 14 November 2007 to 6pm on Thursday 15 November 2007. 

3. That pursuant to section 70NEB(1)(a) of the Family Law Act 1975, the mother shall within 7 working days from the date of this order make contact with … the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for mother, the mother shall attend that program or that part of the program.

4. That I vary paragraph 3 of the Orders made on 13 December 2006 as follows:-

   (a)In lieu of the time that the children were to live with the father pursuant to paragraph 3(f)(i) the children K and S live with the father from 3pm on Friday 28 December 2007 to 3pm on 4 January 2008;

   (b)The periods during which the children are to live with the father pursuant to paragraph 3(a) and (b) of the Orders recommence as to Wednesday and Thursday on 16 January 2008 and as to alternate weekends on 18 January 2008. 

5. That the application filed on 18 November 2007 is otherwise dismissed. 

6. That all exhibits tendered in these proceedings be returned (to the party on whose behalf the exhibit was tendered).

7. That pursuant to section 65DA(2) and 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

AND THE COURT NOTES that it is agreed that the next alternate weekend period during which the children will reside with the father pursuant to paragraph 3(b) of the primary Orders is Friday 14 December 2007.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12465 of 2007

MR RAGLAN  

Applicant

And

MS VALANCE  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This contravention application filed comes before me in the duty list.  It is alleged that the mother, Ms Valance, failed to comply with paragraph 3(a) of the orders made on 13 December 2006 in that she failed to make the children, K and S, available to live with the father from 10 am on Wednesday 14 November 2007 to 6 pm on Thursday 15 November 2007 and that she did so without reasonable excuse. 

2. The respondent, through her counsel Mr Whitchurch, concedes that the father did not have the girls living with him for the times specified in the order, however, he says that any noncompliance with the order his client has a reasonable excuse for same. 

3. The matter proceeded by the father relying on his two affidavits, one of them sworn on 16 November 2007 I have struck out in its entirety.  He also relies on an affidavit sworn on 3 December 2007.  I have indicated and the transcript will reveal the various paragraphs that were said to be objectionable and to which I have no regard. 

4. The applicant the cross examined.  The respondent mother gave oral evidence and was cross examined to a limited extent.  In circumstances I need not deal with in detail, the father was then permitted to give some further evidence on a matter that was not put to him in cross examination but really should have been. 

5. So it is common ground that the children did not live with the father in accordance with the order. 

6. It is said that the father had the children in his care for some part of Wednesday, 14 November and then for some part of Thursday, 15 November.  The father denies having had the children at all on 14 November.  It is a controversy that I do not need to determine because the common ground is that the father did not have the girls overnight as he was entitled to under the order and I am satisfied, on the balance of probabilities, that there was no relinquishment by him of his entitlement to have the children living with him over that period. 

7. The question then becomes whether the mother had a reasonable excuse for noncompliance.  Section 70NAE(4) defines what a reasonable excuse is in the context of an alleged breach of an order whereby children live with one party.  It provides:

   A person is taken to have had a reasonable excuse for contravening a parenting order if (a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person, including the respondent or the child; and (b) the period during which, because of the contravention, the child could not live with the person in whose favour the order was made was not of longer than necessary to protect the health or safety of either the respondent or the child or children.

8. The above extract is an abridged version of the statutory provision but, in my view, includes the salient parts. 

9. Again, I have to be satisfied of facts on the balance of probabilities. 

10. As indicated, the respondent gave evidence.  The breadth of her evidence in relation to concerns that she has for the older child, K, was that in about July of this year K said things about what the father has done to her.  The mother testified that K’s remarks “were very similar” to alleged comments made by K in 2005 and 2006 when she was two or three years of age, “but in many respects very different”.  The mother’s evidence was that “She has brought up since July certain descriptions of what she has had to do.” 

11. The mother gave evidence that she has contacted the Department of Human Services and a SOCAU unit. The mother's evidence was that K was interviewed when she was two and a half years old and it was put to the mother, “Should I really put her through this if I can't prove it,” or words to that effect and, “Since then I have begged to sit down and talk with me.” 

12. The mother's evidence was that the children go happily to their father and in respect of K “she does not understand the magnitude”.  She does say, “Daddy doesn't hurt me any more.” 

13. The mother gave evidence that on 1 November 2007 she received via her solicitors or otherwise a report from a child protection organisation.  The report is not in evidence before me, it is not relied upon.  I do not take the contents of the report into account.  The mother gave evidence that the purpose of the report, as far she was concerned was in relation to a victims of crime claim, from which I infer that it is some form of compensation. 

14. As indicated, the father was cross examined.  The extent of questions to put to him and answers given by him give me no further details on alleged inappropriate behaviour in 2005 or 2006. 

15. Mr Whitchurch, in his submissions, submitted that his client relied on the evidence adduced to establish reasonable excuse.  The problem is that there is no evidence that goes to any reasonable excuse.  I heard evidence that the mother has concerns.  I do not know about the nature of the concerns.  There was reference to a report, but the report is not in evidence or relied upon.  Even if it was, the concerns would need to be concerns which were not adjudicated on and determined by the Order made last December 2006.

16. As matters stand there is no evidence that I have heard which gives rise to a reasonable excuse. 

17. I therefore find that the contravention was without reasonable excuse and that the mother has contravened the order within the meaning of s 70NAC. 

DISCUSSION

1. The mother has not previously been found to have breached a parenting order.  I will require her to attend a parenting course as part of the appropriate sentencing options. 

2. Arising out of my discussion with the parents, I will make orders as to some further time for the girls to spend with the father and the timing of that time. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  20 December 2007