Thompson and Reid
[2008] FMCAfam 686
•2 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMPSON & REID | [2008] FMCAfam 686 |
| FAMILY LAW – Contravention – adjournment – sanction. |
| Family Law Act 1975, s.70NEB |
| Dobbs & Brayson [2007] FamCA 1261 Rice & Asplund (1978) 6 Fam LR 570 |
| Applicant: | MR THOMPSON |
| Respondent: | MS REID |
| File Number: | LEC 10 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 2 April 2008 |
| Date of Last Submission: | 2 April 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 2 April 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Bothwick & Butler |
| Solicitors for the Respondent: | Filewood Carty Lawyers |
ORDERS
That pursuant to section 70NEB of the Family Law Act 1975, the mother enter into a bond.
That by way of compensatory time, the child [A] born in 1996 spend time with his father:
(a)From 6.00pm on Friday 11 April 2008 until 5.00pm Sunday
27 April 2008 (first term of school holidays);(b)From 6.00pm on 26 September 2008 until 5.00pm on Sunday
12 October 2008 (third term of school holidays);(c)
From 6.00pm on Friday 19 December 2008 until 6.00pm on
28 January 2009(all of Christmas/January school holidays).
That the mother pay the father’s costs of and incidental to the contravention application filed on 9 January 2008, fixed in the sum of $2,131.00.
IT IS NOTED that publication of this judgment under the pseudonym Thompson & Reid is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
LEC 10 of 2008
| MR THOMPSON |
Applicant
And
| MS REID |
Respondent
REASONS FOR JUDGMENT
Ex tempore
This is a contravention application that came before me for hearing in Lismore on 11 March, 2008. On that day I dealt with the contravention in the mother's absence. I was satisfied by an affidavit of service that was filed 5 March, 2008 that she had been served with the application for contravention and the supporting affidavit material personally on 18 January, 2008 at her address in [X]. She signed an acknowledgement of service on that day.
When the matter came before me on 11 March, 2008 the mother did not appear. I determined the application in her absence insofar as the contraventions were concerned. I found on the material before me that she had contravened the orders made by Lucev FM on 23 October, 2007 in a number of respects. It is fair to say, I think, that from the first point at which those orders had an opportunity to afford contact between the child who is the subject of the orders and the father, the mother did not comply and there was repeated non compliance until the filing of the contravention application.
Whether the non-compliance is continuing or not is not clear and, according to the decision of the Full Court in Dobbs & Brayson [2007] FamCA 1261 probably not relevant. The mother applies this morning for an adjournment of the sanctioning process. I should say that I adjourned the matter from Lismore to yesterday because I thought it important that the mother appear before the Court for the sanctioning process, there being a prospect that an order would be made that would require her personal attendance. Yesterday she failed to appear again although appeared by a town agent. The warrant that I issued for her arrest on 11 March, 2008 and that I ordered to remain on the file came very close to being executed. Nonetheless, she is here today.
She applies for an adjournment of the sanctioning process under s.70NEB(1)(c). That section applies if "this subdivision applies". The subdivision referred to in s.70NB(1), is subdivision E of division 13A, Part VII of the Family Law Act 1975 - that is a contravention without reasonable excuse being a less serious contravention. In my view, however, this is a more serious contravention. It is more serious because the orders have not been complied with in at least six respects for substantial periods of time and the first contravention took place on the first occasion that the orders required the mother to do something positive with respect to time between the child, [A], and the father.
In my view, it is a contravention without reasonable excuse that is a more serious contravention. Thus the power relied upon to adjourn these proceedings is not engaged.
Nonetheless, I do not think that prevents me from considering whether the sanctioning process ought to be adjourned as the mother seeks because the Court always has an inherent power to adjourn proceedings for proper reason.
The basis upon which the mother says the matter ought to be adjourned is really threefold: the first is that the orders said to have been contravened by her were made ex parte. That is patently not so. They may have been made in her absence but they were not made ex parte. The hearing was clearly on notice to her and she was availed of the opportunity to attend, but for reasons that are not explained in the affidavit filed by leave this morning she did not attend. In any event, the orders were not made ex parte but merely made in her absence. Secondly, she says that she was without legal representation. Indeed, her legal representation on the day the orders were made withdrew because of a lack of instruction. Thirdly, she says that she wishes to make an application to have the orders varied. The variation is necessary because she says it is "impossible" to comply with the orders in their current form.
The parties live a considerable distance apart. There is some controversy about the distance but it is clear enough that one lives in [X], the mother and [A], and the father lives in [Y]. Having regard to the reasons for judgment delivered by Lucev FM, one of the issues that his Honour considered and was asked to consider was the location of the changeover point. That was necessary because up until his Honour's orders, changeover was taking place in [X] but that had proved problematical. His Honour, according to his reasons, thought it appropriate for there to be an order that the parties meet, more or less, half way between [Y] and [X] at a place called [Z]. It is not exactly half way but not far from it.
The mother says it is impossible to comply with that order because she has no means of transport and does not have a motor vehicle. The evidence before Lucev FM at the time satisfied him that she was able to comply. I am not sure what the evidence was that was before his Honour but the fact that he made the orders in the terms that he did and having regard to his reasons for judgment, it is clear that he was satisfied that the mother was able to comply with the orders.
In her affidavit filed by leave today, the mother says this about her transport problems.
“Nevertheless, because of my problems with transport, I would prefer to revert to the previous orders which arranged for the applicant to collect and deliver from [X].”
Paragraph 18:
“ I have read the applicant's affidavit sworn 4 January 2008.”
Paragraph 19:
“ I state, in particular, in relation to paragraph 51, I did not jointly own a Toyota Land Cruiser with a boyfriend or with anyone else. I have broken up with my former boyfriend who did own a Toyota Land Cruiser. I am no longer seeing him. Clearly, I do not wish to prevent the applicant from see [A] at all. However, my financial situation is quite different from that of the applicant as he is working and I am not able to afford private legal representation or a motor vehicle. The children walk to and from school. I believe the applicant is much better placed than I am to pick up and deliver [A] from [X].”
Earlier, she swears this:
“The applicant has, at all times, been aware of the difficulties I have with transport as I do not own a motor vehicle and my friends, acquaintances and family are not willing to lend me a motor vehicle to travel to [Z] on weekends. Before the ex parte orders were made before Lucev FM pick and delivery was always by the respondent at [X].”
There is clearly an issue between the parties about the mother's capacity to comply with the transport arrangements in Lucev FM's orders. She proposes to bring some further proceedings to have that issue clarified and dealt with. In those circumstances, whether I adjourn these proceedings or not will not matter because she will have that opportunity to agitate that issue at some point in time either by way of an application under r.16.05(2)(a) or by fresh application in respect of which she might have to overcome the difficulty in Rice & Asplund (1978) 6 Fam LR 570 but she will have that opportunity whether I adjourn these proceedings or not. I do not propose to adjourn the proceedings. I propose to treat the matter as a more serious contravention.
The parties are agreed that there should be make up time. The make up time that the father seeks is set out in para.9 of his affidavit filed on
3 March, 2008. That is agreed. There will be an order that reflects that agreement save for para.9(1)(a) which is already passed.
In terms of further sanctions, I am concerned that the mother will not comply with the orders that are presently in place until she files another application to deal with the orders. Until she files another application to deal with what she says are "difficult orders for her to comply with" she, nonetheless, must comply. For that reason, I am going to ask her to enter into a bond to agree to comply with the orders until such times are set aside variable discharge by a Court or competent jurisdiction.
If the mother does not wish to enter into a bond, then I will have to consider other sanctions.
I proposed to make a bond that will be for a period of two years or until the orders are varied, set aside, discharged or otherwise dealt with. That is she has to comply with them until she gets somebody to do something about them.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Acting Deputy Associate: T Lewis
Date: 8 July 2008
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