RAIDER & RAIDER

[2010] FamCA 30

FAMILY COURT OF AUSTRALIA

RAIDER & RAIDER [2010] FamCA 30

FAMILY LAW – CONTRAVENTION – Father alleges the Mother prevents the children from answering his phone calls – Inconsistencies in the Father’s evidence – No prima facie case established

FAMILY LAW – CONTRAVENTION– Father alleges the Mother failed to deliver the children to the Father when the appropriate notice had been given – Not satisfied that notice was given – No prima facie case established

FAMILY LAW – CONTRAVENTION – Father alleges the Mother failed to deliver the children to changeover – Mother admits the contravention – Mother suggests there is reasonable excuse – Submissions ordered

APPLICANT: Mr Raider

RESPONDENT: Ms Raider

FILE NUMBER: BRC 4124 of 2008

DATE DELIVERED: 14 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 14 January 2010

REPRESENTATION

THE APPLICANT: The Applicant Father appearing in person

COUNSEL FOR THE RESPONDENT: Mr Byrnes of Counsel appearing for the Respondent Mother

SOLICITORS FOR THE RESPONDENT: Jane Adams Lawyer

Orders

IT IS ORDERED THAT:

1. The Father’s contravention application filed 15 October 2009 be dismissed.

2. The Father’s contravention application filed 23 November 2009 be dismissed.

3. The Father to provide written submissions within seven (7) days of today’s date with the Respondent to respond within seven (7) days after receipt of the submissions in relation to the contravention application filed 11 December 2009.

4. The matter is adjourned to 10.00 am on 29 March 2010 at the Brisbane Registry of the Family Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4124 of 2008

MR RAIDER

Applicant

And

MS RAIDER

Respondent

REASONS FOR JUDGMENT

1. On 20 March 2009, in the Federal Magistrates Court, FM Burnett made orders that are not expressed to be interim orders, but one can glean from the context that the mother is directed to file her response to the father’s application on or before 3 April 2009 that they were intended to be interim orders.  The relevant orders for the purposes of today’s three contravention applications are orders (3), (4), (5), (7) and (8).  I shall read those into the record. 

2. The children the subject of the orders are J, born in June 1998, and M, born in March 2000. 

3. Order (3):  that the father be able to communicate with the children by telephone at any reasonable time each day, provided that the father does not call later than 8.30 pm New South Wales time. 

4. Paragraph (4):  that the children be able to communicate with the father by telephone at any reasonable time and that the mother will facilitate such communication by providing a telephone for the children to telephone to the father, and assisting the children with dialling the number, if required. 

5. Paragraph (5):  that the children spend time with the father at all times as might be agreed between the parties, but failing agreement, as follows: 

   a)for one weekend each month, provided that the father gives the mother one month’s notice in writing of the weekend he seeks to spend time with the children.

6. Paragraph (7) was that for the first period of time that the father spends with the children pursuant to these orders, and every second period of time thereafter, the father shall collect the children from the N area and spend the time with the children in that area.

7. Paragraph (8):  for the second period of time that the father spends with the children pursuant to these orders, and every second period of time thereafter, the mother must deliver the children to the father’s home on the Gold Coast at the commencement of each time, and collect them from the father’s home.

8. The contraventions have been brought pursuant to section 70.  They’ve been filed on 15 October 2009, on 23 November 2009, and 11 December 2009.  The contravention of 15 October is succinctly stated as “the respondent does not allow phone contact between myself and the children as per orders (3) and (4).”

9. I was asked by counsel for the respondent to interpret orders (3) and (4) and I indicated that there is no obligation pursuant to the wording of those that the mother, for children of this age, had to positively encourage the children to phone their father, pursuant to paragraph (4), for example. 

10. Paragraph (4) provides the children are to be able to communicate with the father by telephone.  The children have got a telephone.  The mother’s evidence is that if they wanted to phone the father, they could.  They have not.  Although the father asserts a breach of paragraph (4), I am not prepared to make any finding about that on the evidence before me.

11. Paragraph (3) the father appends to his contravention a document he refers to as an affidavit.  He has sworn to the contents of that document when giving his evidence today.  He said the phone contact had been great since the court hearing on 26 June 2009:

    “I called them every night and they answered every time.  There was and is so much to catch up on.  They talk to me, and also, my partner’s two children, as they are around the same age as [J] and [M].  It was great.  But sadly, it started to decline very quickly, after the second time we had the children, on 15 and 16 August 2009, to only twice a week.”

12. So, the way I read the father’s complaint is that, whilst he says of orders made on 20 March 2009, that the mother has not allowed phone contact, he is in fact asserting that the orders have been breached from some time in August.  He says there has been limited phone contact from 31 August.  He then proceeds to particularise, presumably from his phone records, or from diaries – it’s not clear, but he wasn’t challenged really on the accuracy of this – that he phoned on 31 August, 1 September, 2 September, etcetera, and the phone rang, and there was no answer.

13. The father conjectures that this is because the mother refuses to allow the children to answer the phone.  In support of that view, the father says that:

    “On the weekend of 5 and 6 August, when the children were at our home on the Gold Coast for the weekend, we asked them why they do not answer the phone, and [J] replied that the phone is always kept in mum’s bag, or in her drawer, turned down, so we cannot hear it ring.  It annoys mum when you ring all the time, and if [G] is there, it starts arguments between them.”

    The difficulty, to my mind, with the father’s account is he says, in paragraph 1 of his affidavit, he had fabulous regular phone contact with the children, up until 15 and 16 August 2009, and yet he purports to recount a conversation with J on 5 and 6 August, 10 days before that, questioning him, “Why don’t you pick up the phone?”  One can infer from that, if the father’s dates be correct, that he was questioning J on 5 and 6 August, is that things hadn’t been rosy well prior to the date that he asserts.  But, in any event, there is also evidence from which an inference could be drawn that J is telling the father either what he believes the father wants to hear, or is, in the alternative, making up a story so he does not embarrass his father.

14. I am unable to say to the requisite standard of proof that the mother has contravened the orders, as I have interpreted the orders.  I can make a few observations about the phone conversations anyway.  I find it disturbing that the mother can sit there in the lounge room, put the phone on speakerphone, and allow her children to tell blatant lies to their father.  What sort of a message is she giving to those children?  The father is saying, “You have got the phone on speakerphone.”  “No, we haven’t; no, we haven’t; no, we haven’t.”  Clearly, she did.  They did.  There is other evidence which is equally unflattering to the mother.  I can be quite confident that the children have picked up that the safest time for them to be able to speak to their father is Sundays, probably because the mother’s partner has left the property at that stage.  However, the mother says the children are free to answer the phone, and they do not.  I am not prepared to find a contravention in those circumstances.

15. I will also make this following observation.  I have heard a part of the conversation of 20 September recorded on the mother’s mobile phone.  How the father spoke to his nine-year-old daughter is appalling.  Not only is it inappropriate, it is singularly disgraceful, and an apology would be called for.  The text of what was said by the father is accurately recorded in the mother’s affidavit.

16. I now turn to the physical time for the breach alleged in the contravention of 23 November 2009.  I won’t find a contravention established in relation to the breach of the orders (3) and (4) for the reasons I have just given.  The father said that he had photographs of a time in, I think, September or October holidays, when the children had a wonderful time.  It is not for me to conduct the father’s case; he comes to court and prosecutes his own case.  He didn’t tender the photographs to me.  I don’t think it matters, quite frankly, because, in relation to the contravention of 23 November, it repeats the ongoing lack of phone communication.  I have already dealt with that in a blanket way.  The father asserts in his contravention filed on 23 November that on 7 November 2009:

    “As per order (8), one month’s notice was given, but the respondent has not delivered the children to my home.”

    The mother says there’s no evidence that one month’s notice was given.  All the father can do is hand up an email that on 11 November he sent an email to mother’s solicitor, saying that he wanted the children for Saturday, 7 November [sic].  That is not a month’s notice.  I dislike being technical in these matters, but there are serious consequences to the respondent in these types of prosecutions.  There could be sentences of imprisonment imposed, there could be fines, there could be other penalties, community service orders, etcetera.  A judge is required to view the matter strictly; a month’s notice is a month’s notice, it is a requirement of the order.  It was not given, I am not prepared to find a prima facie case.  The father says, “I gave it to the mother’s lawyer at court clearly a month before.”  He doesn’t produce what document was given, what it said.  I have no idea what was said, or any details in it.  I am not prepared to find a contravention in relation to count 2.

17. Count 3 relates to the contravention filed in December, and it is conceded that there has been non-compliance with that order but the mother says in her affidavit material she had a reasonable excuse as the children were emphatic they did not wish to leave with their father.  I find a prima facie case has been made out.  The evidence is all before the court.  I will make orders for the filing of written submissions by the applicant and respondent in relation to the remaining contravention.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  14 January 2010