Scotsdale and Haricott

[2013] FCCA 1575

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCOTSDALE & HARICOTT [2013] FCCA 1575

Catchwords:
FAMILY LAW – Contraventions – time spent with children.

Saville & Saville (No.2) [2013] FCCA 968

Applicant: MR SCOTSDALE

Respondent: MS HARICOTT

File Number: MLC 201 of 2008

Judgment of: Judge Lucev

Hearing date: 1 October 2013

Date of Last Submission: 1 October 2013

Delivered at: Melbourne

Delivered on: 1 October 2013

REPRESENTATION

For the Applicant: In person

For the Respondent: In person

FINDINGS AND ORDERS

THE COURT FINDS THAT:

1. On 31 August 2012 the respondent contravened order 9(a) of the orders made 13 February 2012.

2. On 20 January 2013 the respondent contravened order 12(e) of the orders made 13 February 2012.

3. On 28 March 2013 the respondent contravened order 9(a) of the orders made 13 February 2012.

4. On 28 June 2013 the respondent contravened order 9(a) of the orders made 13 February 2012.

THE COURT ORDERS THAT:

1. Pursuant to s.7NFB(2)(d) of the Family Law Act 1975 the respondent pay a fine of $300.00 with respect to the contraventions on 31 August 2012, 28 March 2013 and 28 June 2013, with the total amount of $900.00 to be made payable to the Collector of Public Monies on or before 1 November 2013.

2. Pursuant to s.7NFB(2)(d) of the Family Law Act 1975 the respondent pay a fine of $100.00 with respect to the contravention on 20 January 2013, payable to the Collector of Public Monies on or before 1 November 2013.

3. The respondent pay to the applicant costs of $500.00 on or before 1 November 2013.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 201 of 2008

MR SCOTSDALE

Applicant

And

MS HARICOTT

Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons edited from transcript)

1. This is an application in respect to alleged contraventions. The contravention application alleges four separate contraventions, as follows:

   a)that on 31 August 2012 at 5.45 pm at Melbourne, the respondent mother did not get the children to the airport in time to make their flight to Sydney in contravention of order 9(a) of the final court orders dated 13 February 2012;

   b)that on 20 January 2013 at 7.55 pm at Melbourne, the respondent mother is said to have interrupted or interfered and not allowed the children to have discussions with the father and his wife in private, and that the respondent mother disconnected the Skype call and subsequently ignored calls to speak with the children and did not allow the conversation with the children to finish, in contravention of order 12(e) of the final court orders dated 13 February 2012;

   c)that on 28 March 2013 at 5.15 pm at Melbourne, the respondent mother is alleged not to have got the children to the airport in time to make their flight to Sydney in contravention of order 9(a) of the final court orders dated 13 February 2012; and

   d)that on 28 June 2013 at 5.45 pm at Melbourne, the respondent mother did not get the children to the airport in time to make their flight to Sydney in contravention of order 9(a) of the final court orders dated 13 February 2012.

2. The relevant orders of the Court are those of 13 February 2012, and in particular:

   a)order 9(a), which provides that whenever the children travel as unaccompanied minors the mother shall deliver the children to the departure gate in sufficient time to catch the flight and shall meet the children at the arrival gate for the return flight; and

   b)order 12(e), providing that the children shall communicate with their father by Skype or other voice-over-internet-service each Sunday between 6.00pm and 6.30pm, and that the mother shall allow the children to speak with the father and his wife in private and without interference.

3. The applicable law with respect to intervention orders is set out in this Court’s judgment in Saville & Saville (No.2) [2013] FCCA 968 at paragraphs 8 to 20. The Court adopts those paragraphs as a relevant statement of the law for present purposes.

4. The evidence in this case consists of the father’s affidavit, affirmed 2 July 2013, in which he gives evidence of the alleged contraventions, but also notes that there have been prior contraventions of the Court’s orders. That is evident from the fact of the orders of the Court of 27 July 2012 where the Court found that:

   (1) The mother is found to be in breach of the orders 13 February 2012, on 19 February 2012, 20 February 2012, 26 February 2012, 27 February 2012, 4 March 2012, 10 March 2012 and 11 March 2012.

   and made the following order:

   (2) The respondent mother shall before leaving court today enter into a bond in the sum of $1000 for a period of 12 months with a condition that she comply with all family law orders.

   So there is a history of prior contraventions by the respondent mother.

5. The father’s evidence evidences each of the alleged contraventions in terms, and they are relatively simple terms with respect to the flight departures. It is alleged, and it is not disputed in any event, that the children did not get to the airport in time to make their departure flight times from Melbourne to Sydney. There is no evidence to the contrary from the mother, and likewise with the evidence with respect to the interference with the Skype conversation, there is no evidence which contradicts the father’s evidence that that connection between the father, his wife and the children was interrupted in the manner alleged in the contraventions.

6. The mother did not give evidence, indicating to the Court in her submissions that she did not feel the need to defend the contraventions because they had occurred. In the circumstances there is no evidence as to a reasonable excuse which the Court can rely upon. There were some submissions made with respect to steps which have been taken subsequently by the mother to ensure that the orders are not, or have not been subsequently, contravened, and there is no evidence before the Court that the orders have been subsequently contravened. But as the evidence presently stands, each of the contraventions is proven and there is no evidence of a reasonable excuse with respect to any of them.

7. There was some cross-examination of the father in relation to whether or not on the first of those counts there was a call to say that the mother and children were stuck in traffic, and there appeared to be an acknowledgement that there was at the very least a call. But even allowing for the fact that there was a call saying that the mother and the children were stuck in traffic, that in the Court’s view is not a reasonable excuse for the purposes of the Act, nor a reasonable excuse in any event. Any traveller to Melbourne Airport of any frequency would be aware that it is necessary to allow sufficient time to get to the airport, and anybody who goes reasonably often to the airport, as it would appear the mother is required to do, would recognise that sufficient time ought to be allowed to get these children to the airport in time to be at the departure gate at the appointed time.

8. No excuse of that kind is offered with respect to the other two flights. There was put to the father with respect to another of the flights that there was an updated itinerary sent which did not clearly mark the change to the April 2013 flight in the same manner that another flight was marked as changed. But when one reads that itinerary it is clear, and it clearly advises of the time of the flight in any event. And the email which was read to the father by the mother in cross-examination indicated that what was attached was an updated itinerary, and it is incumbent in the Court’s view upon the mother to read the itinerary rather than assume in those circumstances that it was the same as in the previous itinerary.

9. Various matters which were not particularly relevant, or not relevant at all to the contraventions were also put to the father, but they do not afford any reasonable excuse to the mother in the circumstances. The Court is satisfied on the basis of the service affidavit which has been filed, being that of Ms T of 19 July 2013, that there was service on the mother, and that does not appear to be the subject of dispute. The Court is also satisfied that the orders said to have been contravened were neither vague nor unworkable.

10. The Court notes the background, and in particular that there were several earlier breaches of orders which were the subject of a 12-month bond. The Court also observes that the mother has indicated that certain steps have been taken to ensure that there are no further breaches of the orders, and there do not appear to have been any further breaches of the orders since the alleged contraventions. The amount of time that the father did not get to spend with the children as a consequence of the orders appears to being something in the order of about three hours. The children apparently had been put on the subsequent flight on the same day to Sydney from Melbourne. In the circumstances, the amount of time is such that it does not warrant any adjustment to the orders of the Court.

11. Bearing in mind the background, and in particular the significant number of contraventions that were previously found by the Court in its orders of 27 July 2012, as the Federal Magistrates Court of Australia as it then was, and bearing in mind that a bond was then entered into, the Court is of the view that given that there are four further contraventions within that period, and given that the evidence clearly establishes those contraventions, there is no reasonable excuse. But also bearing in mind the submissions about steps that have been taken to ensure that orders are not breached in the future, the appropriate orders to be made in respect of these matters are findings that each of the contraventions have occurred and the imposition of a fine with respect to each of the contraventions.

12. The Court therefore proposes to make orders along those lines, imposing a fine of $300 on the mother with respect to each of the contraventions with respect to the failure to get the children to the airport in time to make flights to Sydney, and a fine of $100 with respect to the Skype contravention, the total sum of $1000 to be payable by 1 November 2013.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date:  8 October 2013