Tilly and Ansell

[2007] FamCA 1042

FAMILY COURT OF AUSTRALIA

TILLY & ANSELL [2007] FamCA 1042

FAMILY LAW – CHILDREN – Contravention – Father asserted two contraventions by the mother where the children were not made available to him in line with orders for week-about arrangement – In relation to the first asserted contravention, the father conceded there may have been genuine confusion as to the changeover arrangements – In relation to the second asserted contravention, the father conceded the mother withheld the children based upon the suggestion and information from a Family Relationships Centre and that she believed she was acting on reasonable grounds. This represents a reasonable excuse for contravention pursuant to s 70NAE(4)

Family Law Act 1975 (Cth)

APPLICANT: MR TILLY

RESPONDENT: MS ANSELL

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3202 of 2006

DATE DELIVERED: 3 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 3 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Robertson

SOLICITOR FOR THE RESPONDENT: Digala & Associates

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

ORDERS

1. That the application filed 20 August 2007 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3202 of 2006

MR TILLY

Applicant

And

MS ANSELL

Respondent

REASONS FOR JUDGMENT  

1. I have before me an application for contravention filed by the father of two children, a daughter, born in October 1993 and who is currently 13 years of age, and a son, born in January 1996 who is currently 11 years of age. 

2. There are orders made by consent in February 2007 that provide that the children should spend a week-about arrangement with each of the parents and that changeover take place with the father collecting the children after school every second Friday.

3. The father asserted two contraventions, one occurring on 3 August 2007 in relation to the son only, and another on 17 August 2007 in relation to both children.

4. It was asserted that on 3 August 2007, the day on which the daughter was appearing in a music concert and was not expected to be available until the end of the concert, that the son was not made available after school when the father went to collect him.  The mother responded in her affidavit saying that she understood the arrangements were that she would take the son to the concert and the son would be made available to the father after the concert and that is indeed what happened.

5. The father conceded in cross-examination that there may have been some genuine confusion about the arrangements.  Although he certainly was not party to the arrangements that were made between the mother and the children, it may well be that the mother had a different view of what was involved.  There being an absence of intent to contravene the order without reasonable excuse, it seems to me that the application so far as it asserted a contravention on 3 August 2007 cannot succeed.

6. On 17 August 2007 neither child was made available to the father.  It is common ground that the father had been to the local Family Relationships Centre earlier that week.  On the afternoon of Friday 17 August 2007, the mother received communication from the Family Relationships Centre advising her that the father was unstable, was seen as a threat to himself and the children and that she should not let the children go as scheduled.

7. Apparently the Family Relationships Centre also contacted the local police who went to the father’s home to interview him.  The mother contacted the father by text message, telling him she was not going to send the children.  He responded by fax sent to her solicitors late on Friday and to her father’s place of employment late on Friday, saying that unless he got the children by 7.00 pm that Friday night, he would contemplate bringing contravention proceedings.

8. The respondent to the contravention application can demonstrate a reasonable excuse for not complying with an order by showing that she believed on reasonable grounds that her actions were necessary to protect the health or safety of the children and that the period during which the contravention took place was not longer than was necessary for that purpose. (see s 70NAE(4) of the Family Law Act 1975 (Cth) (“the Act”)).

9. It was conceded by the father in the course of his evidence that the mother may well have received information from the Family Relationships Centre as she describes and, whilst he maintains that there may have been no appropriate basis for the information, it was conceded that from the mother’s perspective, she may well have been seen to be acting with a belief based on reasonable grounds.

10. In those circumstances, it appears that the second contravention itself cannot succeed. 

11. I am informed that the shared parenting arrangements are now back on track, albeit that the mother has an application now before the Court, returnable on 27 September 2007 in which she seeks to vary the arrangement and reduce the amount of time the children spend with the father. 

12. The father has foreshadowed his own complaint about the mother’s compliance with another part of the order, namely the joint parenting arrangement, in that he is asserting that the mother has made arrangements for the son’s education next year without proper consultation.  The issues as to the future time the children should spend with each of the parents and their future education at least of the son are matters that can be aired at the next hearing of the matter and are not appropriate for me to deal with today in relation to the contravention application.

I certify that the preceding ten (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate:

Date: 7 September 2007