TAMBERDUN & TAMBERDUN

[2013] FamCA 335

FAMILY COURT OF AUSTRALIA

TAMBERDUN & TAMBERDUN [2013] FamCA 335

FAMILY LAW – CONTAVENTION – Contravention application made by the father against the mother alleging 11 counts of contravention with respect to consent parenting orders – Found that the mother has contravened the orders on nine occasions – Where there has not previously been a contravention of the relevant orders – Contraventions dealt with pursuant to the provisions dealing with less serious contraventions – Orders provide for five compensatory periods of time between the father and the child.

Family Law Act 1975 (Cth) s 70NFB

APPLICANT: Mr Tamberdun

RESPONDENT: Ms Tamberdun

FILE NUMBER: SYC 6862 of 2008

DATE DELIVERED: 9 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 15 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

IT IS ORDERED

1. That, in addition to the time the father is to spend with the child N born … May 1999, pursuant to orders made 24 January 2012, the husband shall, before 30 September 2013, spend the following further periods of time with N:

   (a)       Three periods each commencing on Saturday at 8.00am (unless otherwise agreed) and concluding on Sunday at 5.00pm; and

   (b)       Two periods each commencing on Wednesday at 5.00pm and concluding at 8.00pm.

2. The periods of time set out in Order 1 are compensatory time pursuant to the provisions of section 70NEB(1)(b) of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tamberdun & Tamberdun has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6862  of 2008

Mr Tamberdun

Applicant

And

Ms Tamberdun

Respondent

REASONS FOR JUDGMENT

1. The application before the Court alleges a contravention by the mother Ms Tamberdun, “the mother” of orders made by consent on 24 January 2012 relating to a child of the parties, N, “the child” born in May 1999. The applicant is the father, Mr Tamberdun, “the father”.

2. The application came before the Court for hearing on 15 April 2013. Both parties were unrepresented. At the commencement of the proceedings the mother was charged with 11 counts of contravention. The father was cross-examined in relation to his affidavit of evidence in chief and at the conclusion of the cross-examination I found that the mother had a prima facie case to answer in relation to each of the contraventions.

3. The mother relied upon an affidavit sworn and filed in Court on 15 April 2013 and was cross-examined by the father.

4. The orders of 24 January 2012, in respect of which contravention is alleged, are set out below:

   2.That [the child] spend time with the husband as follows:

   2.1from 5.00 pm Wednesday until before school on Thursday in week 1;

   2.2from the conclusion of school on Friday until 11.00 am on Saturday in week 1;

   2.3and from the conclusion of school Friday until 5.00 pm Sunday in week 2;

   2.4and from 5.00 pm until 8 pm Wednesday in week 2; and

   2.7on [the child’s] birthday for a period of not less than 2 hours in the event that her birthday falls on a school day and for not less than 4 hours if her birthday falls on a weekend.

   5.During NSW school holiday periods, the husband or wife may take [the child] on holidays on not more than 4 occasions each year for a total period of no more than 14 continuous nights, provided that the parties provide each other with not less than 4 weeks written notice prior to his/her proposed date of departure:

   5.1a copy of his/her itinerary, including flight details (if any); and

   5.2the address at which the wife/husband and [the child] will be staying along with a landline telephone number.

   13.That each party notify the other of the address and telephone number of the place where [the child] will be staying during holidays spent away from their residence, not later than 48 hours prior to commencement of any holiday period.

5. This judgment will deal with each charge separately.

6. In these reasons all quotes are set out with their original spelling, grammar and punctuation.

1. FIRST CHARGE

   That on 21 September 2012 the mother without reasonable excuse prevented the father from collecting [the child] and spending 14 continuous nights during the school holidays, from 23 September through to 7 October 2012 (inclusive).

   On 17 August 2012 the father notified the mother that he wished to exercise school holiday time with the child from 23 to 30 September 2012. On 23 August 2012 the father advised that he wished to extend the time to l7 October 2012 (inclusive). On 10 September 2012 the mother sent an email to the father saying:

   Regarding the holidays, we have not had any response from you about the ‘[Town B]’ holiday dates. [The child] spoke to her cousins but they had no knowledge of any arrangements to go there.

   Since the holidays are less than two weeks away now, we will make our own plans and you will be able to work around them.

2. The father confirmed his intention to exercise time during school holidays on 17 September, 19 September, 20 September and 21 September 2012. On 21 September 2012 the father attended at the mother’s home to collect the child but she was not made available. The father in a contemporary email records the fact that the mother’s car was outside the home and that he was told by the parties’ adult son that the mother and the child were inside.

3. It subsequently transpired that the father was required to travel out of the country for business on 30 September 2012 and would not have been available to spend the whole 14 days with the child. However, I am satisfied that the mother did not comply with her obligations under Order 5 of the consent orders to make the child available as requested by the father and I find this contravention proved.

1. SECOND CHARGE

   That on 10 September 2012 the mother, without reasonable excuse, failed to provide the applicant father with four weeks notice of her intention that she take [the child] on holiday during the September 2012 school holidays.

   The mother conceded that she gave the father only three days notice of her intention to travel with the child to Town C for holidays. However, this occurred in circumstances where the father was to have had the child for the holidays and gave the mother three days notice that he was not in a position to exercise that time because he was required to travel overseas. In circumstances where the father gave very short notice that he was unable to spend holiday time with the child I do not find it unreasonable that the mother gave equally short notice that she would make alternate arrangements and I find that she had a reasonable excuse for failing to comply on that occasion.

1. THIRD CHARGE

   That on 27 June 2012 the mother refused to provide details of the address and fixed line contact number of the place where [the child] was staying during a holiday.

   On this occasion the mother took the child to Country D by agreement with the father. She gave the father an itinerary which referred to aeroplane flights in and out of Country D. What she did not tell the father was that, in addition to going to Country D she intended to take the child to Country E. The mother did not dispute that she did not provide the father with a landline contact for the child, in Country D or in Country E, or that she did not provide the father with the address where the child would be staying, in Country D or Country E. She did not dispute that she gave the father no notice at all that she proposed to take the child to Country E. She did not dispute that she took the child to Country E and she did not dispute that the father only found out about the trip to Country E after the event. I find this contravention proved.

2. FOURTH CHARGE

   That on 27 September 2012 the mother without reasonable excuse refused to provide details of the address and a fixed line contact number where she was staying with [the child] during their vacation.

   On this occasion the mother took the child to Town C. I accept the evidence of the father that the mother did not at any time tell him where the child was staying in Town C and that she did not provide him with a landline contact number. The mother did not dispute that the father had not been provided with a landline telephone number and at best suggested that the father knew that she would be staying with a person called “[F]” although she did not suggest that he would know the address. I find this breach proven.

1. FIFTH CHARGE

   That on 21 September 2012 the mother without reasonable excuse refused to allow the father to collect [the child] and prevented her from spending the weekend with her father.

   It is not disputed that the child did not go with her father on 21 September 2012. However in cross-examination the mother gave evidence that there was a conversation between the child and her father where the child told her father that she would only go with him for the weekend if he promised to bring her back, rather than insisting that the child spend the following week with him during holidays. The father agreed that that conversation had taken place. The mother gave evidence that she made every effort to encourage the child. She said that after the child had spoken to her father she “had a meltdown” and went to bed and put the covers over her head. The mother said that the child wouldn’t speak to her and was very distressed. The mother said she offered to take the child the next day to see her father if she could obtain the child’s co-operation and that she conveyed that offer to the father. I am satisfied that on that occasion the mother made proper efforts to encourage the child to go with her father and I do not find the breach proven.

1. SIXTH CHARGE

   That on 24 August 2012 the mother without reasonable excuse refused to allow the father to collect [the child] and prevented her from spending the weekend with her father.

   The father gave evidence that on the Friday afternoon at 6 pm he went to the mother’s residence to collect the child. The mother’s car was not in the driveway. He knocked on the door and the parties’ adult son came out and told him that the mother had taken the child out. The father sent a text message to the mother indicating that he would wait at her home until 6.30 pm. He waited until after 6.30 pm and the mother did not return with the child. I find this contravention proven.

1. SEVENTH CHARGE

   That on 10 August 2012 the mother without reasonable excuse refused to allow the father to collect [the child] and prevented her from spending the weekend with her father.

   On that day the child was attending a school camp. The father received notification from the school that, due to traffic problems students would arrive back at the school at 3.30 pm.

2. The father arranged for a friend to collect the child from the mother’s home at 5.45 pm and bring her to his home. The mother telephoned the father’s friend and told her that the child was going to be late and there would be no point in waiting to collect her. The father sent an email to the mother asking her to make the child available to be collected at 5.45 pm and the mother responded:

   It is plainly no surprise to you that [the child] has been at … camp and has [school commitments] tonight and tomorrow. She is not available and you have been told that. It is a matter for you if you wish to send people to sit in my driveway in you place.

3. The father’s evidence is that he was not aware of the child’s school commitment but that, had he been aware, he would have taken the child to both of those commitments. I find the contravention proven.

4. EIGHTH CHARGE

   That on 30 May 2012 the respondent mother without reasonable excuse refused to allow the applicant father to collect [the child] and prevented her from spending the weekend with her father.

   The mother in relation to this allegation claims that there was a reasonable excuse for non-compliance with the orders. The mother relies on the fact that on 20 May 2012 the father called the police who spoke to the child. He said the reason he called the police was that mother had indicated that she was coming to the house to collect the child. The police did not attend but spoke to the father and the child by telephone. The mother arrived at the father’s house and the child got in the mother’s car and left.

5. By way of explanation of her failure to ensure that the child spent time with her father from 30 May 2012 in accordance with the orders, the mother in an email said “[The child] is not able or willing to stay overnight with you on Friday night. She has a dance rehearsal and since the events of Sunday 20th May when you called the Police on her, she does not feel secure staying with you at your mother’s house in the absence of your mother.”

6. The mother does not suggest that she did anything to encourage the child to go with her father or to use her best endeavours to comply with the orders. I find the contravention proved.

1. NINTH CHARGE

   That on 20 July 2012 the respondent mother without reasonable excuse refused to allow the applicant father to collect [the child] and prevented her from spending Wednesday night with her father.

   The night in question (20 July 2012) was a Friday night not a Wednesday night, however the mother does not dispute that Friday 20 July 2012 was a night upon which the child should have spent time with her father. At 3.05 pm on 20 July 2012 the mother sent a text message to the father saying “Sorry for late notice. [The child] is going home with friends after school and will call you about arrangements when she gets home after 5pm.” At 3.27 on the same day the mother sent a text message saying “Have not had coverage today. Checking that u are aware [the child] is not meeting u this afternoon. She has gone with friends.” The father sent a message to the mother indicating that he would collect the child and at 5.35 pm sent a further message saying, “I have been waiting out front for 10 mins. [The child] has not called me. I have called [the child’s] mobile and there was no answer. I have called your home no and there was no answer. Please send [the child] out. Mum is cooking dinner and waiting for us to arrive.” At 5.45 pm the mother sent a message to the father saying “[The child] has only just got home. She is not well and had gone straight to bed. She said she would call u later and say sorry to [G].” I find that the mother made no effort to comply with the order that the child spend time with her father on Friday afternoon and I find the contravention proved.

1. TENTH CHARGE

   That on 30 May 2012 the respondent mother without reasonable excuse refused to allow the father to collect [the child] and prevented her from spending Wednesday night with her father.

   At 4.49 pm on 30 May 2012 the mother sent an email to the father saying “[The child] does not want to be collected tonight. She had her braces tightened on Monday and has discomfort and is unable to eat much. Please respect this.” The mother does not suggest that she did anything to encourage the child to go with her father or to comply with her obligations pursuant to the orders. I find this contravention proved.

2. ELEVENTH CHARGE

   On 8 May 2012 the respondent mother without reasonable excuse refused to allow the applicant father to collect [the child] and prevented her from spending the weekend night with her father.

   The complaint relates to a scheduled visit by the child to the father on Friday 11 May 2012. On 8 May 2012 the father sent an email to the mother saying “On Friday night (11 May 2012) Mum will be coming to pick up [the child] from (the mother’s home) at 5.00 pm. I will be returning from a day trip to Melbourne and will be joining [the child] and [G]. I am arranging for a surprise dinner.” The mother responded “It is likely to be a big surprise …. [the child] is not available on Friday. Your refusal to tell us the date you were coming back from Melbourne has resulted in [the child] making other plans. It is ridiculous to expect [the child] to be given no notice and do nothing but wait for your return. She is in bed now.”

3. I find this contravention proved.

SANCTIONS

1. I propose to deal with the contraventions pursuant to the provisions dealing with less serious contraventions. There has not previously been a contravention of the relevant orders.

2. The powers of the court to deal with the consequences of contravention are set out in section 70NEB. The father urges upon the Court that, firstly a finding be recorded that the mother has contravened orders and secondly that she provide compensatory time to make up for each and every occasion which he has missed.

3. The mother for her part submits that the Court should suspend all existing orders and that the parents should engage in a process of mediation and attempt to come to an arrangement which is mutually acceptable to them. It is the mother’s case that she is supportive of the child and her relationship with her father but that the father should extend to the child the same flexibility which he claims in relation to his work arrangements.

4. It is not disputed that the father, sometimes on as little as two days notice, is frequently required to travel overseas and as a consequence is unable to keep his commitments to the child. In circumstances where the father is unable to make a commitment to the child to be consistent in his time with her, the mother submits that the child should be allowed the same flexibility to make arrangements with her friends in circumstances where she cannot be sure that her father will be spending time with her.

5. If the mother has formed the view that the framework provided in the existing orders is not appropriate, bearing in mind that the first of the breaches of the orders occurred on 8 May 2012, less than five months after the consent orders were made, then the course she should have adopted was to apply to vary them. It was not at any time open to the mother to, as she said “vary the orders” or to ignore them and her obligations created by the orders.

6. The mother has been found to have contravened the orders on nine separate occasions. I consider it appropriate to make an order to compensate the father for time he has missed. I do not consider it appropriate or possible to compensate the father for every occasion missed, particularly as some of those occasions were missed because he was unable to attend due to work commitments. The orders will provide for three periods of compensatory time to commence on Saturday morning at 8.00am, or such later time as the parties may agree, and conclude at 5.00pm on Sunday and a further two periods of time to commence on Wednesday from 5.00pm until 8.00pm. These periods are to be taken by the father, by arrangement with the mother but to occur before 30 September 2013.

I certify that the preceding THIRTY (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 9 May 2013.

Associate: 

Date:  9 May 2013