Ultz and Zhong

[2007] FamCA 356

FAMILY COURT OF AUSTRALIA

ULTZ & ZHONG [2007] FamCA 356

FAMILY LAW - ORDERS - CONTRAVENTION - Alleged breach of children’s and property orders brought by father - No breach of property orders found - Breach of children’s orders found - No reasonable excuse made out - Mother to enter into a bond of $500 - Mother’s application to change parenting orders dismissed

Family Law Act 1975 s 70NAE and 70NAF
Evidence Act 1995

APPLICANT: MR ULTZ

RESPONDENT: MS ZHONG

FILE NUMBER: CAF 165 of 2005

DATE DELIVERED: 22 March 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 22 March 2007

REPRESENTATION

The husband appeared on his own behalf

The wife appeared on her own behalf

Orders

1. That the application filed by the husband on 28 February 2007 about contravention of matters relating to property orders is dismissed.

2. That in relation to the application filed by the husband on 6 March 2007, relating to contraventions of the children orders made on 26 June 2006 I give leave to amend that application to include an allegation that there was a failure on the part of the wife to provide the children without reasonable excuse for the time they were to live with their father from 15 March 2007 and dispense with any regulations that may be necessary to enable the matter to have been dealt with this day. 

3. I further find that in relation to each of the four allegations thereby made by application from the husband that the respondent did fail without reasonable excuse to comply with the order made on 26 June 2006.

4. I therefore require that the respondent enter into a bond pursuant to section 70NEC of the Family Law Act 1975 for a period of two years without a surety on the basis that if she should fail to comply in future with an order of this Court in relation to the time that the children will spend with their father she will forfeit to the Commonwealth of Australia the sum of $500. 

5. This bond may be entered into before a Registrar of this Court at any time before 30 March 2007. 

6. Otherwise, the mother's application contained in her response filed in this Court on 20 March 2007 is dismissed.  In particular and specifically I dismiss the mother's application for a variation of final orders made about the children on 26 June 2006.

7. That disposes of all existing matters before this Court. 

8. The matter is removed from the pending cases inventory.

IT IS NOTED IN CONNEXION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Ultz v Zhong.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 165 of 2005

MR ULTZ

Applicant

And

MS ZHONG

Respondent

REASONS FOR JUDGMENT

1. The issue before me to be resolved on what is known as the voir dire (which is a “trial” to determine whether a piece of evidence should be accepted into the proceedings) is whether some photographs should be accepted into evidence.  The relevant evidence as tendered by the husband, is some photographs that he says, in accordance with his affidavit, he took at the property in which the respondent had been living on Sunday, 17 September 2006, at approximately 10.30 am.  The husband’s evidence in his affidavit is that he went to the house at 9 am and went back again at 10.30 am, with a camera, and that he took some photographs.  He produces the photographs and says that these are the photographs he took and he has identified those and he has them with him at the Bar table.  The question is:  should they be admitted into evidence?  The preliminary point was taken by the wife, the respondent, that, in fact, he was not at the house on that day and that, therefore, they should not be admitted, because he could not have taken the photographs when he said he took them. 

2. That was the subject of the voir dire (or the evidence hearing) that we have just completed.  In this situation there is no possibility that both parties are telling the truth. The wife has given evidence that, on that particular day, first, that she and the children slept late, second, that the husband did not attend the house at all, and, third, that he certainly did not attend house at 10.30 am with a camera and she did not allow him into the house on that day.  She says, in answer to cross-examination by the husband, and he confirms, apparently, that she did not sign a lease until some days, at least, after that event, and she says that the government housing rules are that you are not permitted to move anything into a house until such time as you have signed the lease. 

3. The husband’s evidence is that when he arrived on that day he could see, through the windows of the house, that the respondent was in the process of packing, and he was concerned that the items would be removed and he would not have an opportunity to take an inventory.

4. In this situation, I am obliged to make a decision about this particular piece of evidence, based on the balance of probabilities.  That means I have to be satisfied that it is more likely than not that something occurred. 

5. In this situation I have the husband’s evidence (which is untouched on cross-examination) to the effect that he went to the house on that day and took some pictures.  I have not looked at the pictures but he says the pictures have on them a date, which is recorded automatically by the camera.  There are a number of reasons why that particular piece of evidence would not be of much assistance to him.  The first is that there is no evidence that in fact the camera was, on that day, recording accurately the date on which the photographs were taken and it may or may not have caused him to be of the view that he took photographs on the day when he either did or did not.  Second, the material contained on the photograph, if it is a date, would fall within the hearsay rule under the Evidence Act 1995, and, if in fact the husband were to rely upon that evidence, he should have given notice, in accordance with s 67 of the Evidence Act 1995 that he proposed to rely upon this form of hearsay and he clearly did not do so. 

6. In these circumstances, I would not allow the photograph or the evidence contained on the photograph, to the extent that it is evidence, to be allowed as corroboration of his evidence that he went to the house.  More importantly perhaps is that would only provide corroboration.  There is sworn evidence to the contrary of his being at the house on that day. 

7. The wife’s evidence, equally, was untouched on cross-examination and there is nothing in her evidence which is inherently improbable.  She provides a context in which she says her evidence occurred and there is nothing that is either implausible or unbelievable about it.  Her evidence about the rules, in terms of moving into the new property, is consistent with her not moving out on that day.

8. All that leaves me with is a situation in which I could not be convinced either that the husband was at the house on that day, nor could I be convinced affirmatively that he was.  In these circumstances, he has not satisfied the onus of proof in satisfying me on the balance of probabilities that he was at the house on that date.  Accordingly, the tender of the photographs is rejected. 

9. The application filed by the husband on 28 February 2007 is dismissed. 

10. The dismissal of that application relating to the alleged removal of property from the house in T by the respondent in breach of Court orders without reasonable excuse is based on the fact that the evidence before me does not support the proposition that the items were removed by the wife.  There is no evidence before me that the relevant items were in the house at the time on which it is asserted that she removed them.  There is no evidence that she actually removed the items from the house, and I am unable and unwilling to draw any inference that would lead me to conclude otherwise.  In those circumstances, the primary elements of the allegation are not made out and, accordingly, the application is dismissed.

11. The proceedings before the Court also relate to alleged breaches of the orders made by me on 26 June 2006, whereby, among other things, in Order 3(a) I made an order:

    That the children will live with their father from after school on each alternate Thursday until the recommencement of school on the following Monday (unless the weekend is a long weekend, in which case the Monday is a holiday, on the following Tuesday).

12. It is asserted in the application filed by the husband that there was a failure to comply with those orders without reasonable excuse on 1 March 2007, 22 February 2007, 8 February 2007 and by way of recent amendment (for which I give him leave in the circumstances) on 15 March 2007.  The respondent conceded that the children were not made available to the husband on those days but she asserted that she had a reasonable excuse in accordance with the Family Law Act 1975 (the ‘Act’).

13. The burden of establishing that there was a reasonable excuse for contravening the order rests with the respondent, the wife, in accordance with s 70NAF, on the balance of probabilities. 

14. The terms and conditions relating to what constitutes a reasonable excuse are set out in the Act, in part, in s 70NAE and include such matters as, for example, if a person did not understand the obligations imposed by the order, or, more relevantly in this matter, in relation to s 70NAE(4), that a person believed, on reasonable grounds, that the actions constituting the contravention were necessary to protect the health or safety of a person, including the respondent or child.

15. The position adopted by the wife is somewhat complicated.  Initially she said to me in the witness box that the reasons that she had failed to comply with the orders and to make the children available to spend time, to live with, their father were as set out in her affidavit of 20 March 2007 which provided, among other things, that she has,

    … contacted [Mr M] at the Child Protection Agency.  He talked to me and separately talked to the children.  He told me I shouldn’t let the children go to [X’s] house ['[X]' being a reference to the applicant husband].  I also went to the Family Relationship Centre who gave me the same advice."

16. Clearly the paragraph, in its terms, is inadmissible in evidence, except to the extent that it stipulates, in effect, that the respondent, if I were to accept that evidence, had acted in refusing to permit the children to go to their father, on the basis of what she accepted as being authoritative advice from Mr M and from the Family Relationships Centre.  Whether she is entitled to rely upon the authority of those two institutions is another question.  It also does not follow that I need necessarily know what the advice that she was given was or even whether it was soundly based.  It might, in some circumstances, suffice to say that, if advice had been given by someone apparently authoritative, the person to whom it was given might be placed in a difficult position and left, with a reasonable excuse for not complying.  However, even if that were so, the only event for which that might reasonably be said to have been operative was the time that the children were to live with their father, commencing on 15 March 2007, as it appears, after cross-examination, that the advice occurred, certainly, after the first two incidents, possibly after the third and probably before the fourth, although the precise date on which she received the advice is not clear to me.

17. When this was pointed out to the wife, she effectively said that her reason for not providing the children was that she feared for their safety or well-being, and referred to her affidavit in which she sets out, in a somewhat rambling and, in large measure, inadmissible way, the complaints she says the children have made to her about the accommodation they have with their father, and the fact that the daughter was obliged to walk from M through to T School across a busy road, and that she got lost along the way, and that there was a failure on the part of the husband to take the son to his music lessons, and that the accommodation for the children was totally unsatisfactory, full of spiders and cockroaches and petrol fumes, as is set out on page 3 of her affidavit, and that the children were denied use of one of the toilets in the house and hot water in their shower.  She also alleged that the father made at least one of the children, I think, the daughter, from memory, walk to the school in the rain, and this had been, of course, some concern.

18. I do not doubt that, in this situation in which the parties have been at war almost since they first got together, let alone since they separated, good-will is a nonexistent factor.  I do not accept that the respondent believed that what she was doing was for the safety of the children.  I do not accept that the children's father would deliberately cause any danger to the children.  I think his attitude, nevertheless, is somewhat cavalier.  I find it extraordinary that he should say that he does not want his wife to have to clean the third toilet in the house, so the children cannot use that toilet.  Apart from anything else, when I last looked, cleaning toilets was not a peculiarly female occupation, and it is something that he could quite happily do himself, if he is concerned about his wife being overworked.  The issue, however, about the children's safety, in my opinion, does not arise on any of the evidence given by the respondent.  In my opinion, there is no reasonable excuse made out, by the respondent for failing to provide the children on each of those occasions.  I find the allegations made out. 

19. I propose, in relation to the allegations, to order that the respondent enter into a bond, which will provide that, if she fails to comply with the terms of the Court order, as they may be from time to time about the time that the children will spend with their father, she would pay and forfeit a bond of a sum of money - $500 I have in mind - to the Commonwealth of Australia.  It does not require that the money be paid immediately.  It does require that, if you breach the orders, then the money will be paid.  That bond will be entered into before a Registrar of this Court, subject to anything either of you may wish to say to me about penalty.

20. As far as the future is concerned, it seems to me that it is more likely than not that both of you will be back to see me again quite soon, in which case, no doubt, we will deal with the matters as they arise.  I will come back to this issue again in a minute but I turn, for a moment, to the application filed by the wife, which is contained in her response to an application for final orders which was filed in this Court on 20 March 2007.  That seeks that the application filed by the husband on 28 February be dismissed.  It already has been.  It seeks that the husband be declared a vexatious litigant.  Quite frankly, I think each of you is vexatious, although I am not prepared to make such a finding at this point.  The third order sought is that the application filed on 6 March 2007 be dismissed.  I certainly will not be doing that, as I have found the allegations made out.  She seeks:

    …and a variation be made to the final orders on 26 June 2006.

21. That is the only substantive matter in the response which would remain outstanding and is, in effect, an application for a variation of orders that were made less than a year ago.  There is no indication given in the document or in the affidavit supporting it as to what orders might be sought in substitution for those that were previously made, and, in my opinion, it is inappropriate to regard it as anything other than a matter subject to summary dismissal, and that application, so far as it exists, is summarily dismissed.  There is no reason, therefore, for the appointment of a separate representative for the children; there is no reason for a report to be obtained from Mr M at the Child Protection Agency; and, there is no reason for me to place a caveat on the property of T.

22. Accordingly, without any further submission from either of the parties, it seems to me, that application should be dismissed.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date:  24 April 2007