TRAGER & TRAGER

[2020] FCCA 1297

FEDERAL CIRCUIT COURT OF AUSTRALIA

TRAGER & TRAGER [2020] FCCA 1297

Catchwords:
FAMILY LAW – Parenting – application for contravention order – whether there is an unacceptable risk of harm to the child – where father admits contravention of order – where father gives undertaking to comply with that order – satisfied no unacceptable risk of harm to child.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS TRAGER

Respondent: MR TRAGER

File Number: DNC 494 of 2019

Judgment of: Judge Young

Hearing date: 7 May 2020

Date of Last Submission: 7 May 2020

Delivered at: Darwin

Delivered on: 7 May 2020

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the Respondent: Mr D. Story

Solicitors for the Respondent: Story & Associates

ORDERS

UPON NOTING

A. That the parties are to attend a Family Dispute Resolution conference at Northern Territory Legal Aid Commission.

B. That the father has given an Undertaking that he will comply with order 8 of the orders made 18 November 2019 in relation to administering the child’s X’s medication.

THE COURT ORDERS:

1. That the husband file and serve an amended Response, financial statement and affidavit in support within 7 days in relation to property issues.

2. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born in 2007 and Y born in 2012 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the child's interests.

3. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

4. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

5. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

6. That the parents will undertake and complete parenting program such as the A Counselling ‘For The Kids’ or with a similar program provider as follows:

   (a)Each parent, within seven (7) days of the date of these Orders are to contact the program provider and enrol in the program;

   (b)The parents will attend all sessions of the course and comply with all reasonable directions of the program providers;

   (c)At the conclusion of the program each parent provide the Court and the other parent with a certified copy of the certificate of completion.

7. That the parties attend a Conciliation Conference with a Registrar of the Court at Darwin on 1 September 2020 at 2.00pm.

8. That the Applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.

9. That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.

10. That within 28 days the parties provide mutual informal discovery of all documents in their respective possession, custody or control.

11. That the parties prepare a draft joint statement of assets and liabilities on or before 1 September 2020.

12. That with respect of any asset the value of which is not agreed the parties obtain a joint written valuation at their joint expense to be available within 14 days prior to the conciliation conference.

13. That in the event either party seeks a superannuation splitting order that a copy of the proposed splitting order be served upon the Trustee of the superannuation fund at least 14 days prior to the conciliation conference.

14. That the matter be adjourned to the trial call over list on 23 September 2020 at 9.30am for further directions.

15. That in the event that valuations have not been agreed by the parties they are to notify the Registrar 14 days prior to the conciliation conference and confirm if the conference is to proceed.

16. That both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A to this order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 494 of 2019

MS TRAGER

Applicant

And

MR TRAGER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a mention of a parenting matter today.  The mother has filed an application for contravention of orders.  The alleged contravention which is admitted, so it is a contravention, is that an interim order made on 18 November 2019 in the following terms:

   The mother and/or father shall administer all required medications to the children as prescribed, and not rely on the children to do so.

   was breached by the father who, according to the affidavit filed by the mother, did not ensure on or about 17 April 2020 that the child X’s antidepressant medication was taken when X was with the father.  The father’s solicitor Mr Story this morning has told me that the father admits a breach, on that one occasion, of that order. 

3. According to the instructions of Mr Story, which he relayed to me, the father has said that he asked X whether he had taken his tablets and X falsely said that he had in fact taken his tablets.  When the child was returned to his mother the mother noticed that the medication had not been taken and immediately emailed the father and asked him about it and the father gave her the explanation that his solicitor gave me this morning. 

4. I asked Mr Story whether the contravention was admitted and as I have already mentioned he said his client admitted that.  He does not say that he had a reasonable excuse because, on the basis of his instructions, there is no reasonable excuse.  The interim order requires that the parents ensure that the medication was taken without relying on the children in any way so there was a clear breach. 

5. I have asked for and received an undertaking from the father that he would, in the future, ensure strict compliance with that order or rather he would strictly comply with that order and I was given that undertaking which I have recorded. 

6. The mother was dissatisfied with that and I asked her, given that the matter was a mention this morning, two questions: why that undertaking was in some sense inadequate today, for today’s purpose, at least and secondly why there was some urgency in otherwise dealing with the matter.  She told me that there were many other contraventions she was concerned about and they were recorded in affidavits other than the affidavit in support of her contravention application.  That may be but the only application for contravention is the one I have mentioned and the only affidavit material relates to the single episode that I have described.  If the mother wishes to bring further contravention proceedings she is entitled to do so and she will need to support that by affidavit. 

7. In circumstances where I am simply dealing with a mention today, the only question in my mind is whether there is some unacceptable risk of harm to either of these children in leaving the imposition of a penalty, if any for this contravention, which has been admitted, to trial.  I am not satisfied there is any urgency about it and given the undertaking of the father I am not satisfied that there is any unacceptable risk of harm to the child in otherwise adjourning the matter.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 25 May 2020