S & M - [2006] FMCAfam 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & M

[2006] FMCAfam 117

FAMILY LAW – Contravention of contact order – reasonable excuse – whether respondent understood the obligations imposed by the order – subjective test of understanding – objective test for determining whether court is satisfied that the respondent ought to be excused – observation on meaning of provision.

Family Court Act 1975, ss.70nc, 70ne

Attorney General v Times Newspapers Ltd [1992] 1 AC 191
Derry v. Peek (1889) 14 App. Cas. 337
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313
Gaunt, In the marriage of (1978) FLC ¶90‑468; (1978) 4 FamLR 305; (1978) 33 FLR 148
Kelly v Kobelnek [1998] FamCA 296 (unrep)
M & G (No. 4) [2004] FMCAfam 296
Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454
Witten, Re (1887) 4 TLR 36

Williams, Criminal Law (Stevens & Sons Ltd, London: 1961)

Applicant:

Respondent:

File Number:

MLM 3819 of 2005

Judgment of:

Riethmuller FM

Hearing dates:

8 & 9 March 2006

Date of Last Submission:

8 March 2006

Delivered at:

Melbourne

Delivered on:

9 March 2006

REPRESENTATION

Counsel for the Applicant:

Mr A.J. Crozier-Durham

Solicitors for the Applicant:

Calleas le Brun and Burke Solicitors

Counsel for the Respondent:

Mr P.J. Cronin

Solicitors for the Respondent:

CE Family Lawyers

FINDINGS

The Court is satisfied that the wife has, without reasonable excuse, contravened Order 5(c) of the Orders made on 1 December 2005 by Federal Magistrate Connolly by failing to allow the applicant father contact with the children commencing 16 December 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
melbourne

MLM 3819 of 2005

Applicant

And

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application where the father alleges that the mother has contravened orders of the court made on 1 December 2005 with respect to contact of two children: JTMS, born 24 June 199X, and NTMS born 13 October 199X.
The care arrangements for the children are governed by consent orders that were made by the parties on 1 December 2005 which provide for the parties to live with the mother and for the father to have contact.
There are two alleged contraventions, the first being that the mother did, without reasonable excuse, refuse, neglect or otherwise fail to allow the father to enjoy telephone contact with the children on 1 December 2005 at 7 pm; and the second being that the mother did, without reasonable excuse, neglect or otherwise fail to allow the father to have contact with the children for the school holiday period, commencing 16 December 2005, at Hoppers Crossing.

First Alleged Contravention

The first alleged contravention arises out of the father making a telephone call for contact with the children on the day that the orders were made. The father's case is that he was speaking to the children by mobile phone and that the mobile phone call was terminated or cut short by the conduct of the mother,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCAfam 117
Decision Date: 9 March 2006

CaseChat Overview and Summary

The case before the Federal Magistrates Court of Australia involved an application by the father, S, alleging that the mother, M, had contravened court orders concerning contact with their two children, JTMS and NTMS, born in 199X. The mother was accused of two contraventions: first, failing to allow the father to have telephone contact with the children on 1 December 2005 at 7 pm, and second, not allowing the father to have contact with the children during the school holiday period starting on 16 December 2005. The court was required to determine whether the mother had a reasonable excuse for contravening the orders, and if not, whether she had indeed breached the orders.

The court examined the first alleged contravention, which involved a telephone call on the day the orders were made. The father claimed that his call was terminated prematurely by the mother. While it was clear that the mother's actions were influenced by the heightened emotions of the day, the court found that her actions did not constitute a breach of the orders. The court concluded that the issue might have been due to poor mobile reception or a misunderstanding by the mother about whether the children had spoken to the father. Therefore, the court found that the first contravention was not proved.

Turning to the second alleged contravention, the court focused on the precise terms of the contact order, which specified that the father should have contact with the children during certain periods of the school holiday. The court determined that the plain meaning of the order was that the children should be with the father from the end of the school year until they returned to school. The mother had refused to send the children for contact until 22 December 2005, arguing that the curriculum development days were part of the school year and not part of the summer vacation. The court found that the mother's interpretation of the orders was not reasonable and was driven by a desire to limit the father's contact. Consequently, the court concluded that the mother did not have a reasonable excuse for contravening the order, and thus the second contravention was proved.

The court's reasoning was based on the understanding that contact orders should not be subject to overly technical interpretations. The plain meaning of the order was that the children should be with the father from the end of the school year until they returned to school, which was clearly set out in the school newsletter. The mother's conduct, which aimed to limit the father's contact, was not in the best interest of the children and only increased the conflict between the parties. Therefore, the court held that the mother's actions did not warrant an excuse under section 70ne(1a) of the Family Law Act 1975. The court found that the second alleged contravention was proved, and the mother was in breach of the contact order.

Orders