Sykes and Sykes - [2011] FMCAfam 711

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYKES & SYKES

[2011] FMCAfam 711

FAMILY LAW – Competing contravention applications.

Family Law Act 1975, ss.112AB, 112AC, 112AD

Applicant:

MR SYKES

Respondent:

MS SYKES

File Number:

SYC 950 of 2009

Judgment of:

Altobelli FM

Hearing date:

27 June 2011

Date of Last Submission:

27 June 2011

Delivered at:

Sydney

Delivered on:

28 June 2011

REPRESENTATION

Applicant:

Self-represented

Respondent:

Self-represented

ORDERS

UPON NOTING THAT:

(a)
In relation to the Father’s Contravention Application filed

29 September 2010, the Mother did contravene orders on 31 July 2010, 7 August 2010, 1 September 2010 and 5 September 2010 without reasonable excuse and the application in this respect is proved.
(b)In relation to the Mother’s Contravention Application filed 25 March 2011, the Father’s contraventions on 6 September 2010 and 15 October 2010 are established with reasonable excuse.
(c)In relation to the Mother’s Contravention Application filed 25 March 2011, the Father did not contravene orders on 6 January 2011 and the application filed by the Mother, in this regard is dismissed.
(d)In relation to the Mother’s Contravention Application filed 25 March 2011, the Father did contravene orders on 9 October 2010 without reasonable excuse and the application in this respect is proved.

THE COURT ORDERS THAT:

No penalty is imposed on the Mother or the Father in respect of the above.
Any other outstanding Contravention Applications are dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 950 of 2009

MR SYKES

Applicant

And

MS SYKES

Respondent

REASONS FOR JUDGMENT

The matter relates to competing contravention applications. By way of consent orders made on 12 July 2010, the parents entered into parenting orders, and on 25 August 2010, they entered into property orders. The contraventions arise out of that. The parents have proceedings pending before the Court with final hearing dates allocated for next year. The only background that is relevant is that these parents are engaged in a deep conflict. They cannot communicate except in a toxic fashion. They have no trust in each other. The level of conflict would rate in my opinion and based on my experience at about nine and a half out of 10.
The parents have a daughter, [X], who is four and a half years old. Each of her parents are locked in marital combat. They are engaged in trench warfare and are firing shots at each other. Their hate for each other is so palpable that they cannot see that their four year old daughter is caught in the crossfire. She is the one who is being damaged by her parents’ hatred for each other. Based on my limited observation of both the mother and the father yesterday, they are as bad as each other. [X] has little hope for her future unless her parents change their ways.
The evidence before me was as follows: in the mother’s contravention application filed 25 March 2011, there was her affidavit filed of the same day. In addition, she filed an affidavit on 23 February responding to the father’s contravention application. The father’s contravention application was filed 29 September 2010, and that is supported by his affidavits of 12 August and 27 September 2010. The applicable law in these matters is contained in Division 13A of Part VII of the Family Law Act1975.
I will deal with the father’s contravention application filed

29 September first. I allowed him to run four counts, and I will refer to each of these counts. The first count is 31 July 2010. The father says the mother indicated to him that she would not allow contact because of his alleged denigration of [Y]’s father. The mother says she told the father that she had a broken foot and could not drive. The father agrees he knew that she was injured and unable to drive but not that she wanted him to collect [X] from her home.
This is a factual dispute. Only one person can be right. I found the mother in her evidence to be evasive and unresponsive. On balance, this tips the credibility in favour of the father. I prefer his version of the evidence. The level of spite that both the mother and the father have for each other is such that what the father asserts the mother said is quite likely. I find the contravention established without reasonable excuse.
The second count is 7 August 2010. This turns on their interpretation of an order made by Sexton FM on 13 July 2010. If the mother’s interpretation is correct, there is no breach. If the father’s interpretation is correct, there is a clear breach, and reasonable excuse becomes an issue. I must say I fail to understand how the mother interprets the order the way she does. It does not justify her late delivery of [X]. There is no evidence of reasonable excuse. I find contravention established without reasonable excuse.
The third count is 1 September 2010. The mother is not able to establish to my satisfaction that she was at the changeover location at the required time. I accept that the father was there, on balance. There is no evidence of reasonable excuse. I find contravention established without reasonable excuse.
The last count is 5 September 2010. The mother has interpreted the orders in a way that precludes overnight contact on Father’s Day. It is an untenable interpretation of order 7(d) that clearly states that irrespective of whether overnight contact was occurring in other contexts, it was clearly to be overnight for Father’s Day. I do not accept the mother’s interpretation of the order is a reasonable one. It is perhaps what she intended the orders to be, however, it is not what the orders actually say. I find the contravention established without reasonable excuse.
The father is entirely successful on all four counts. These are clearly less serious breaches, however. In terms of penalty, he merely seeks that the contravention be found established on the record as a tacit deterrence to future breaches, but otherwise he seeks no other penalty. I must say I had in mind the imposition of a bond, but in view of the fact that that is not what he has sought, I will not order the same. I find the father surprisingly magnanimous in this regard.
I turn now to the mother’s contravention application filed 25 March. I also allowed her four counts which I will deal with. The first two counts are
6 September 2010 and 15 October 2010. The parents agree that between
4 September 2010 and 22 October 2010, [X] was with her father when she should have been with her mother. The father says there is a reasonable excuse for his agreed non-compliance. The mother’s evidence is that for part of the period, i.e. 19 September to 13 October, on a holiday in Egypt. The father says he intended to and wanted to return [X] but the mother did not want her back. The father says he was at times in fact reluctant to keep [X] for all of the relevant period.
The mother agrees that after she filed for recovery, she received advice from the police not to try to get [X] back. I must say that is remarkable advice if that is what in fact the mother was told. This was clearly a highly stressful period for [X]. Both parents acted with remarkable, indeed breathtaking insensitivity to her and massive lack of insight. Both were, I am satisfied, playing games with each other, trying to hide their real intentions whilst second-guessing what the other’s intentions were.
In a race to see which parent has the least insight, I find the mother ahead by a nose. I found her evidence unconvincing. I find that at any time she could have had [X] back if she wanted to. All she had to do was to collect her. Rather than do this, she insisted on her being returned. The father clearly took advantage of this and sought to maximise the financial benefit of having [X] in his care. I am satisfied, however, that on both counts there is a reasonable excuse. Given the mother’s lack of willingness to take [X] back into her care and given her own long absence overseas, the father was entitled to act as he did on 6 September and 15 October. Accordingly, I find reasonable excuse established.
The third count is 6 January 2010. There is a dispute between the parents about the time for return. It comes down to who I believe. I prefer the father’s evidence over the mother. Again, I found her an unresponsive and evasive witness in cross-examination. I find no contravention established.
The last count is 9 October 2010. This is the contravention of a property order requiring the husband to transfer to the wife IMB shares which apparently have a value between $1200 and $1500. The father agrees he did not comply and he tells me that he did in fact sell the shares. He says that this was, in effect, retaliation for the wife’s non-compliance. This is not a reasonable excuse. I find contravention found without reasonable excuse.
In terms of penalty, the mother says the father should be gaoled for his contraventions. She has only succeeded on the property breach. The fact that she seeks this penalty gives a real insight into her nature. Gaol is totally disproportionate for the breach that is established. I am satisfied that there is a contravention under s 112AB and that there is no reasonable excuse under s 112AC.
Section 112AD(1) says that whether or not I impose any of the sanctions referred to in s 112AD (2) is a discretionary matter. I decline to impose any sanction. When the dispute between the parents is seen in context, it is more appropriate to find the contravention established but not impose a sanction. There are proceedings pending, and the mother has, in any event, not complied with orders in many respects. Accordingly, no penalty is imposed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: 19 July 2011