Schach & Birrell

[2009] FamCA 205

FAMILY COURT OF AUSTRALIA

SCHACH & BIRRELL [2009] FamCA 205

FAMILY LAW – CHILDREN – CONTRAVENTION – mother alleged contravened order providing for father to speak with the child – where mother has pleaded guilty to one count – do not consider mother has contravened order as did not intentionally fail to comply with order – second count dismissed because of wrong date alleged – primary order varied

Family Law Act 1975 (Cth), 70 NAC, 70NBA

APPLICANT: Mr Schach

RESPONDENT: Ms Birrell

FILE NUMBER: ADC 5060 of 2008

DATE DELIVERED: 24 March 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 18 – 19 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Du Barry

SOLICITOR FOR THE RESPONDENT: Ann Josephson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Keen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Alderman Redman

Order

1. That the Application Alleging Contravention filed by the father on 3 December 2008 be dismissed and removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 5060 of 2008

MR SCHACH

Applicant

And

MS BIRRELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The application before the Court is the Application filed by the father on 3 December 2008 alleging that the mother had contravened paragraph 1(c) of the order made in the Federal Magistrates Court on 25 January 2008.  That application was filed in the Federal Magistrates Court but was transferred to this Court by order made on 18 December 2008.

2. Paragraph 1(c) of the order made on 25 January 2008 provided as follows:

   “That the said child ([L] born […] June 2002) communicate by telephone thereafter and upon each party obtaining a web-cam facility by web-cam, on the following occasions:

   (1)     6pm (SA time) Sunday each week commencing 17 February 2008;

   (2)     6pm (SA time) Wednesday each week commencing 13 February 2008;

   by way of the father telephoning [the child] on the mother’s landline telephone.”

3. The terms of that order are somewhat confusing but each party has proceeded on the basis that it provided for the father to telephone the mother’s landline telephone and speak to the child at the appointed time and/or for there to be communication by web-cam at that time.

4. There are two counts of alleged contravention of this order, namely:

   4.1On 12 November 2008 at 6pm the mother failed to answer her telephone or have her web-cam active and the father was unable to communicate with the child as provided for in the order;

   4.2On 23 November 2008 at 6pm the mother failed to use her landline telephone for the purposes of the child communicating with the father and failed to allow web-cam communication.

5. Now, I have rephrased the precise wording of the alleged contraventions as they appear in the father’s application but that was done with the agreement of both parties to better understand the complaints that the father was making.  Of course, instead, I could have simply dismissed the application on the basis of the alleged contraventions not being properly pleaded but the mother’s counsel did not seek that that occur given that the father was in person.  I chose to fall in line with that approach in order to try and assist the father to resolve these matters.

6. Initially the mother admitted that she had contravened the orders as alleged but she claimed that she had a reasonable excuse.  However, as the evidence unfolded I allowed the mother to change her plea in relation to the second count to not guilty.  The father alleged that the contravention occurred on 23 November 2008 but the mother denied any contravention on that date.  She considered that the father had made a mistake with the date and that it should have referred to 16 November 2008, but the father disagreed and pursued his claim that there was a contravention on 23 November 2008.

7. In terms of penalty in the event of the mother being found guilty on one or both of the charges, the father indicated that he was not looking for the mother to be punished but he was looking for make up occasions of communication with the child.

Discussion

Count 1

1. Although the mother admitted the contravention I do not consider that she did in fact contravene the order as alleged.

2. Section 70NAC of the Family Law Act 1975 provides as follows:

   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.

3. In my view the mother did not “intentionally” fail to comply with the order or make no reasonable attempt to comply with the order.

4. The mother’s evidence is that because her computer was not working she went to her parents’ home and logged on there expecting the husband to know that that was where she was and for him to telephone her parents’ telephone number if he wished.  I note of course that with web-cam communication that can be done at any computer, and for this purpose it did not matter where the mother logged on.  In any event, the mother says that that had been the pattern over the previous few weeks because of her computer at home not working, and the father was well aware of this having communicated with the child at the wife’s parents’ home in this period of time.

5. The father says that he logged on on his computer but that there was no indication that the mother had done likewise and therefore he telephoned her home telephone number, but of course she was not there.  He then did nothing more.

6. The mother says that after approximately 55 minutes she sent a message on the computer to the father, but the father says that he never received that message.

7. I accept the evidence of both parties in this instance, and consider that the problem must have arisen from a technical issue with either the computer that the father was using or the computer that the mother was using, or with both.  The only question is whether the father should have telephoned the mother at her parents’ home or whether the mother should have telephoned the father when nothing happened initially.  The order did not deal with this circumstance although the father did follow the strict terms of the order by telephoning the mother’s landline telephone number.  However, given the pattern of the previous few weeks it would have been obvious to the father that when he did not get through on the wife’s telephone that she would be at her parents’ home.  As he said in evidence though, he did not want to talk to the wife’s parents and that was why he did not telephone them.

8. Equally in my view the mother should have been pro-active.  Instead of simply waiting for the father to do something she should have telephoned the father herself.  Thus both parties can be criticised for the way that they handled this incident.

9. Importantly though I do not consider that a contravention has been established and I propose to dismiss this charge.

Count 2

1. The primary issue here is whether the father has established that there was a contravention of the order on 23 November 2008.  To repeat, the mother says that there was not and she suspects that the father was confusing the date with what occurred on 16 November 2008.  However, the father did not accept this.

2. The onus was on the father to establish a contravention on 23 November, but in my view he has not satisfied that onus.  He said that he made a note of the date on a piece of paper but he could not produce that piece of paper.  It seems to me that the incident of which the father complains in fact occurred on 16 November, but to repeat the father did not accept that and therefore he did not for example seek to amend the charge.  Accordingly this charge needs to be dismissed as well.

3. For completeness I note that what the father in fact complains of in relation to the second count was not that he was not able to communicate with the child on the telephone but that it did not occur on the mother’s landline telephone.  He in fact telephoned the mother’s parents and spoke to the child there.  In my view, even though that would have been a technical breach of the order, I doubt that I would have found that there was a contravention in those circumstances.

4. In relation to web-cam communication that did not occur on 16 November, but the mother’s reason for that was that she was at work and no-one at her parents’ home knew how to log on.  She says, and I accept, that the father was well aware of this circumstance.

Conclusion

1. I confirm that I propose to dismiss the father’s application given that no contravention has been established, but it seems to me that it would be appropriate in the best interests of the child for the primary order to be varied to provide two occasions when the father can communicate with the child by telephone and/or by web-cam.  I have the ability to vary the order in that way either specifically pursuant to s 70NBA of the Act or pursuant to my discretion generally to vary a parenting order.  I note though that on 18 December 2008 paragraph 1(c) of the order of 25 January 2008 was suspended in so far as it provided for communication by web-cam and the provision for telephone communication was varied.  That was done “during the period of the adjournment”, but it is unclear when that comes to an end given that no adjournment date was given and what in fact was done was to transfer the proceedings to this Court.  Thus I need to sort that issue out with the parties and also I need to hear from them as to what dates would be suitable for the two occasions of communication that I propose to order.  Thus, when I deliver these reasons for judgment I propose to raise these matters with the parties and make appropriate orders.

I certify that the preceding 21 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 24 March 2009.

Associate