Shillington and Love

[2008] FamCA 61

FAMILY COURT OF AUSTRALIA

SHILLINGTON & LOVE [2008] FamCA 61

FAMILY LAW – CHILDREN – Long-standing arrangements for care changed by custodial father on basis of 6 yo daughter’s ‘misbehaviour’ – Sent child to maternal grandmother – Mother long history substance abuse – Re-introduction of mother into child’s life – Change of residence despite father’s protests to mother – No contact between siblings, sister and father despite court’s efforts to the contrary

APPLICANT: MS SHILLINGTON

RESPONDENT: MR LOVE

FILE NUMBER: BRC 11417 of 2007

DATE DELIVERED: 25 January 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 25 January 2008

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance by or on behalf of the Respondent

Orders

THE COURT FINDS that the Father has contravened the Orders of this Court made on 21 August 2007 in that he failed to attend upon the South Queensland Coast Contact Centre in accordance with those Orders AND FURTHER that such failure resulted in the frustration of orders for the purposes of the children, …, born … January 1994, …, born … August 1996, and …, born … September 2000, spending time together, and that he did so without reasonable excuse

AND THE COURT ORDERS

1. That on or before the 22^nd day of February 2008, the Respondent must pay to the Registry Manager of the Family Court of Australia at Brisbane a fine in the sum of $750.00.

1. That the Marshal of the Family Court of Australia take all steps necessary within his power to enforce payment of the said fine.

1. That the Applicant’s Contravention Application filed on 27 September 2007 be removed from the list of cases awaiting finalisation.

IT IS DIRECTED

1. That a copy of the Reasons for Judgment be placed on the file.

AND THE COURT FURTHER ORDERS IN RELATION TO THE MOTHER’S APPLICATION IN A CASE FILED ON 18 JANUARY 2008

IT IS ORDERED

1. That the Mother’s Application in a Case filed on 18 January 2008 be adjourned for further hearing to the Judicial Duty List commencing at 10.00 am on 19 February 2008.

IT IS ORDERED UNTIL FURTHER ORDER

1. That until 4.00 pm on 19^th February 2008, the Father and his servants and agents are restrained from taking or sending or attempting to take or send the children, …, born … January 1994 (a male child) and …, born … August 1996 (a male child), from Australia.

1. That the Marshal and all Officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these orders.

IT IS REQUESTED UNTIL FURTHER ORDER

1. That the Australian Federal Police place the names of the children, …, born … January 1994 (a male child) and …, born … August 1996 (a male child), on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the said children from Australia in breach of these orders.

IT IS FURTHER ORDERED

1. That the Father have liberty to apply to have the matter listed for hearing and determination prior to 19 February 2008 upon the giving of four (4) days notice.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Shillington & Love

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 11417 of 2007

MS SHILLINGTON

Applicant

And

MR LOVE

Respondent

REASONS FOR JUDGMENT

1. In this matter, the mother brings an application for contravention of Court orders.  Her application was filed on 27 September 2007 and in that application she attached a copy of the orders allegedly contravened, being orders made on 21 August 2007.  In her application, she alleges that the respondent father contravened paragraphs 9, 10(a) and 10(c) of those orders.

2. The applicant filed an affidavit in support of that application and filed an affidavit of service by post.  Of course, under rule 7.03, a party is required to serve applications for contravention by hand.  However, the rules enable the Court to dispense with strict requirement in that regard. 

3. Essentially, the regulations relating to service are designed to ensure that a party has received proper notice of proceedings and copies of relevant Court documents filed in support of those applications.  This application was filed in September of last year.  This is the third occasion the matter has been before the Court and I am satisfied that the respondent father has been served with a copy of the application.  He is well aware of the matters in issue.  He is well aware of the hearing dates.

4. On 10 December 2007, the matter was listed for hearing before me, having previously been listed in the Federal Magistrates Court, and on that occasion I made an order that the father appear personally before me today and an order that the mother serve a copy of this order upon the father by post at a residential address specified in the order, and provide an affidavit of such service.  The mother has complied with that order and provided an affidavit of service. 

5. In relation to notice to the father, the Court has received through the Registry extensive representations and correspondence from the father and/or his partner.  Of course, such matters are not evidence and are not relevant in the substantive application.  The Court can only act on evidence properly placed before it.  However, I direct that copies of correspondence from the father, and copies of Court records of communications between Registry staff and the father and other members of his household, be taken and that those copy documents be admitted into evidence as Exhibit 1 in these proceedings as evidence of the fact of the respondent father's apparent knowledge of the matters before the Court, knowledge of the various dates for hearing, and his various stated intentions from time to time not to participate in these proceedings.

6. When such material is considered in conjunction with the applicant’s affidavits of service, I am well satisfied that the father was aware of the hearing date on 10 December 2007.  I am satisfied that he has been served with a copy of the order which indicated that he should appear personally today, and that a possible consequence of his failure to do so would be for the issue of a warrant.  The Court records indicate that Registry staff have advised him that they are unable to adjourn the matter administratively and that he would need to either file an application, which could be heard and determined, or appear today in relation to either any adjournment application or the substantive matter.

7. I raise those matters, as I say, only in the context of being satisfied that the father is well aware of today's hearing and that he has chosen not to attend.  I then turn to the question of the consequences of that decision and how I should deal with the substantive matter.

8. Rule 21(7) of the Family Law Rules enables the Court, in the absence of the attendance of a respondent, to proceed to either: (a) determine the case; (b) issue a warrant; or (c) adjourn the application. 

9. As I say, this is the third occasion that the matter has been before the Court.  The applicant mother files an application, seeks the assistance of the Court and asks that, after two previous failed efforts, this Court proceed to hear and determine the matter, or alternatively, that it issue a warrant for the respondent's arrest to enable the matter to be heard and determined in his presence.

10. I am satisfied that it is not appropriate that this matter be adjourned for a fourth occasion.  The father has had ample time and opportunity to properly respond to this matter.  In my view, the only two proper options are, to either determine the matter in the respondent's absence, or to issue a warrant to have him brought before the Court.

11. My deliberation in relation to those options draws me to the substantive complaint of the mother and the affidavit material she has filed in support.  The orders made on 21 August 2007, were the culmination of difficult, protracted litigation throughout 2007, which I gather in turn came from a background of extensive litigation between the parties in relation to their three children, two sons and a daughter.

12. Events leading to the orders of 21 August 2007, saw the daughter removed from the father's household by the father and placed with the maternal grandmother, at least temporarily.  Subsequently, as a consequence of proceedings before this Court instituted by the mother, the daughter was gradually reintroduced to the mother, culminating in an order that the daughter reside with her mother.

13. As a consequence of those developments and the order of 21 August 2007, the children are separated, with the two sons residing with their father and the father having sole responsibility for their care, and the daughter residing with her mother and the mother having sole care.  There has been a complete breakdown in the relationship between the parents and, regrettably, a significant breakdown in the relationship between the two sons and their mother, on the one hand, and the daughter and her father, on the other. 

14. Of course, the separation of the children from one another is a matter of fundamental importance and concern.  In a difficult situation, the Court determined that it should put in place at least some modest orders which provided the children with some foundation to build on for future contact and to maintain relations with one another. 

15. In paragraph 9 of the orders made in August 2007, a miniscule allowance was made as a starting point for the children to spend as much time with one another as may be agreed to between the parties, but failing agreement, for not less than two hours per month, or two hours every six weeks, subject to times available through the South Queensland Coast Contact Centre.

16. Paragraph 10 of those orders was largely machinery provisions designed to have the parties attend at the South Queensland Coast Contact Centre for the purposes of facilitating contact ordered in paragraph 9. 

17. In her affidavit in support, the mother has filed material which indicates that she complied with her obligations to submit to the South Queensland Coast Contact Centre's intake requirements within 21 days of the order of 21 August 2007.  She has filed further material which indicated that the father did not comply with order 10(a). 

18. As a consequence of the father not complying with the intake requirements, the further orders of the Court designed to facilitate contact between the three children cannot be accommodated by the South Queensland Coast Contact Centre.  Those further orders are, therefore, frustrated by the father's failure to comply with order 10(a).  I am satisfied that the applicant mother has established a prima facie case that the father has failed to comply with paragraph 10(a) and that his own non-compliance in turn has led him to be in default of his obligations under paragraphs 9 and 10(c). 

19. The preliminary issue is whether I can hear and determine the contravention application on the material available, or whether the matter necessitates the respondent father's personal attendance to enable me to hear and determine the matter and/or whether the attendance of the respondent father is necessary for other purposes, including, for example, dealing with the issue of appropriate punishment.

20. On those issues, I note that the applicant mother has not alleged in her affidavit material in support of her application that the father has been dealt with by the Family Court for contravention of Court orders on any previous occasion.  Therefore, on the material before me, I deal with this matter as if it is the father's first offence.  The matters of evidence in support of the mother's application are very simple, very contained, very straightforward, and simply provide evidence which, if accepted, establishes the fact that the father failed to take the first step in the process, which was to enrol at the South Queensland Coast Contact Centre, and thereby frustrated the other orders of this Court.

21. The father has chosen not to place any evidence before the Court and has not appeared.  I am satisfied that the attendance of the father is not necessary to further explore those evidentiary matters. 

22. On the question of the attendance of the respondent father for the purposes of dealing with issues of penalty, I am not satisfied that his attendance is necessary or likely to take the matter much further.  If I was contemplating imprisonment at this time, obviously, it would be essential to have the father present and to allow him to be heard.  The imposition of a bond would require the father to enter into such an arrangement. 

23. The father has failed to appear on any of the return dates in relation to this application, and failed to appear personally on any of the multiple applications and hearings during 2007.  On some occasions, he saw fit to answer phone calls; on other occasions, he was not even prepared to make himself available when the Court was making efforts to contact him by telephone.  I am satisfied that the bond option is not one well-suited to the circumstances of this case.

24. In those circumstances, I would be likely to impose some other form of penalty upon the father.  In this case, given that I do not regard prison as an appropriate option on a first offence, and I do not regard a bond as an appropriate option, I would look to impose a fine.  I am satisfied that I can deal with those issues in the absence of the father.  I should say further that, if the father had chosen not to place material before the Court, the purpose of having him arrested pursuant to a warrant would, in essence, be to bring him before the Court to deal with this issue of penalty.  Given the option I think most appropriate is a fine, I see little purpose in having him arrested for the purposes of then simply imposing a fine upon him. 

25. In a broader context, I take into account the fact that, unfortunately, relations between these children and their respective parents and with one another being very strained, the issue of the warrant is hardly likely to endear the process to the father, and one can only suspect that the various children would not be unaffected by the prospect of their father being arrested and even temporarily imprisoned.

26. Whatever be the rights and wrongs of this case, it is nothing short of a tragedy that these grown-up parents cannot manage to allow three young children to have the opportunity to spend meaningful time with one another.  I do not want to do anything unnecessary that will exacerbate that already terrible set of circumstances.  I am satisfied I can do justice to the mother's application without the need, at this stage, to use the rather heavy-handed approach of issuing a warrant.

27. On the application proper, I am satisfied that the mother has produced prima facie evidence of the application she brings.  In the absence of any evidence to the contrary, I accept her evidence and find that the father has, indeed, failed to meet his obligations to enrol at the South Queensland Coast Contact Centre and that, as a consequence, the other orders of the Court designed to bring the children together have been frustrated.

28. At one level, the father's breach is, it could be said, not a serious one, in that it is simply a failure to take some administrative steps; at another level though, it is a very serious fundamental breach because the effect of it is to work the greater evil of not enabling these young children to spend time with one another in accordance with Court orders.

29. I take account of the fact that it is the father's first offence.  He has not placed before me any evidence in this application in relation to his financial circumstances.  However, I take account of the fact that he has the care of a number of children in his household, and I assume that places a burden upon him financially.  At the same time, this is, in my view, a serious matter justifying the imposition of a serious penalty. 

30. The balance that I strike in this matter is to fine the father $750 and order that he pay that sum within 28 days. 

31. Therefore, I find that the respondent father contravened orders of this Court on 21 August 2007 and, in particular, paragraphs 9, 10(a) and 10(c) thereof, by failing to attend upon the South Queensland Coast Contact Centre as required for the purposes of submitting to the South Queensland Coast Contact Centre intake requirements and by so failing has frustrated the other orders of the Court designed to enable the children to spend time together. 

    ORDERS DELIVERED

32. I direct that a copy of these reasons be transcribed and placed on the file. 

    RECORDED  :   NOT TRANSCRIBED

33. In this matter, the applicant mother has also filed an application on 18 January 2008 seeking to restrain the father from taking the children from Australia.  That application was sent by post on 21 January 2008, so that it would be likely that the father has only had limited notice of that application.  I am satisfied that he should be given more time.  The only issue is whether I should make the restraining orders on a temporary basis pending that further hearing. 

34. Material filed by the mother in support of her application confirms very significant strains and further deteriorating relations between the parties, and she asserts a threat on the part of the father to remove the children from Australia.

35. Of course, I am not in a position to determine either the veracity of the evidence given by the mother, or the seriousness of any threat if it was made.  However, I propose to adjourn the matter to 19 February 2008, and it seems to me that, if the father does not intend to remove the children from the Commonwealth, then he is not harmed by the imposition of these orders as a temporary measure, particularly given that I am satisfied that he has received copies of the application and the material in support and, at the very least, has not been sufficiently concerned to appear before me today in the event that the Court might have been persuaded to hear and determine that application.

36. I am satisfied that a temporary restraint until 19 February 2008 is appropriate.  As a further precaution, I will give the father liberty to list that application on the giving of four days' notice to cover the unlikely exigency that there is some legitimate and urgent need to have some, or all of the children travel overseas.

    ORDERS DELIVERED

    RECORDED  :   NOT TRANSCRIBED

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: