Valdez and Frazier

[2014] FCCA 334

FEDERAL CIRCUIT COURT OF AUSTRALIA

VALDEZ & FRAZIER [2014] FCCA 334

Catchwords:
FAMILY LAW – Contravention – prima facie case not established.

Legislation:

Family Law Act 1975, s.70NAC

Applicant: MR VALDEZ

Respondent: MS FRAZIER

File Number: SYC 2226 of 2013

Judgment of: Judge Walker

Hearing date: 28 January 2014

Date of Last Submission: 28 January 2014

Delivered at: Sydney

Delivered on: 26 February 2014

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondent: Mr Longworth

Solicitors for the Respondent: SWAAB ATTORNEYS

THE COURT ORDERS THAT:

1. The father’s contravention application filed 11 November 2013 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2226 of 2013

MR VALDEZ

Applicant

And

MS FRAZIER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are contravention proceedings instituted by the father of the parties’ son, X, born (omitted) 2011. Interim parenting orders were made on 25 July 2013. The father alleges that the mother has contravened these orders on three occasions. The mother denies any contravention of the orders.

Background

1. The relevant orders of 25 July 2013 are as follows:

   7. The child X spend time with the father as follows:

   a.Each Tuesday and Thursday, and every second Friday from the conclusion of day care at 3.30 pm until 6.00 pm

   b.Every second Sunday from 9.00 am until 4.30pm; and

   c.Every second Saturday on the alternate weekend to the Sunday in Order 7(b) above, from 10.00 am until 4.00 pm with the mother to drop X off to the father at the commencement of this time and to collect him at the conclusion of this time.

   8. The purposes of Order 7(a) and (b) above, the father is to collect X from either the day care he is attending or the mother’s residence and return X to the mother’s residence on each occasion.

2. The father in his contravention application filed on 11 November 2013 alleged that the mother breached Order 7(a) and 8 on 19 September 2013, on 20 September 2013 and on 26 September 2013.

The Evidence

1. The father relied on his affidavits filed respectively on 11 November 2013, 13 January 2014 and 15 January 2014.

2. The mother relied on her affidavit sworn on 13 January 2014 and filed on 14 January 2014 and on the affidavit of Ms K sworn on 10 January 2014 and filed on 14 January 2014.

The Relevant Law

1. The meaning of “contravened an order” is set out in s.70NAC and is as follows:

Meaning of contravened an order

A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

(a)where the person is bound by the order--he or she has:

(i)intentionally failed to comply with the order; or

(ii)made no reasonable attempt to comply with the order; or

19 September 2013

1. The father annexed to his affidavit filed on 11 November 2013 an email to the mother’s then solicitor, Mr Harry Freedman.

2. The email dated 15 September 2013 advised that the following Thursday and Friday, and the next Thursday and Friday were each important festivals in the calendar of (religion omitted) life. He requested that X be permitted to participate in these festivities. He said that he had taken leave from work for the four days. He suggested that if the mother was not taking these periods off work herself he would like to collect X from her residence at 8.00 am on Thursday 19 and 26 September 2013 and would return him at 6.00 pm. He suggested that on Friday, 20 and 27 September 2013 he would collect X at 8.00 am and would return him at 6.00 am and that he would also be happy to return him at 3.30 pm. The father added that if the mother had taken time off work to celebrate these days he would appreciate her considering which of the days X could spend time with him and that he thought it was important for X to share these special times in his culture.

3. Letter in response from the mother’s then solicitors, Freedman & Gopalan Solicitors, sent by email on 18 September 2013 referred to the father’s email “earlier this week in trying to once again change arrangements for X.” It advised that the mother did not wish to make any changes to the existing orders and asked the father to confirm whether he would be collecting X from day care on 19, 20 and 26 September 2013 between 3.30 pm and 4.00 pm and returning him to the mother’s house at 6.00 pm.

4. The letter also observed that the father had instructed the day care centre that only he and the mother were authorised to collected X from the centre. The letter concluded by saying “If you are unable to collect X from the day care centre on the above dates, Ms Frazier will collect him. Please confirm your position.”

5. Annexed to the father’s affidavit affirmed on 13 January 2014 were three SMS’s sent to the mother on 18 September 2013. They were sent at different times following the receipt of the emailed letter from her solicitors.

6. In the first SMS the father said that he had received the letter from Mr Freedman saying that the mother did not agree to allowing X to spend time with him when he had leave on the festival days. He asked whether the mother would allow aunty Ms N to collect X from day care on those days.

7. In the second SMS the father said that he was very sad that the mother had decided to stop allowing X to spend the day with him. He continued “I will not be able to collect X on the days dicussed. I hope you can make arrangements to collect him.” The third email said “Please confirm that you will be collecting X on the days I have leave. Tomorrow, Friday and next Thursday and Friday.”

8. The father said that the first text was sent about two hours after he received the emailed letter from Mr Freedman on 18 September 2013. He agreed that it acknowledged that the mother did not consent to his proposal and that he asked about a third person collecting X when that had not been agreed to in the letter from the mother’s solicitor of 18 September 2013. The father said that the request for aunty Ms N to collect X was an alternative proposal. He accepted that it was never agreed to by the mother. He said that there was no subsequent response by the mother to these emails. He was referred to the text of the third SMS asking the mother to confirm that she would be collecting X on the days he had leave and confirmed that the mother did in fact collect X on those days.

9. The mother’s evidence was that after she left work, she collected X from the day care centre at 5.10 pm on 19 September 2013, at 5.00 pm on 20 September 2013 and at 4.40 pm on 26 September 2013. Her evidence was that it took her at least 45 minutes from the time she arrived at the day care centre to return to her home with X.

10. The father questioned the mother about the statement in her solicitors letter of 18 September 2013 that he had instructed the day care centre that only he and the mother were authorised to collect X from the day care. It was agreed that the father had sent an email to the day care centre on 8 November 2013 referring to the collection of X, either by he or the mother and stating “if changes to this arrangement are made then both Ms Freedman (the mother) and I need to be advised before X is removed from the premises.” The mother’s response to the father’s further questioning about this was that no consent was given by her to a change in the arrangement for the collection of X.

11. By 19 September 2013, the mother through her solicitor’s letter of 18 September 2013 had not consented for X to spend the specified days with his father or for a third person to collect him from day care.

12. The father in his affidavit stated that “consistent with the orders” he went to the mother’s residence just before 3.30 pm and that the mother “did not bring X.” In his submissions, he maintained that as the mother declined his reasonable alternative, she should have provided transport for X to her premises where the orders provided for him to collect X. He asserted further, that the mother had refused to make X available “as described in the orders” and had “failed to take reasonable steps to comply with the court orders” and had therefore “not met her obligation to ensure that X spends time with his father.”

13. The father in his submissions referred to not having a choice about collecting X. This may relate to the fact that the festival days were observant days. However, there was no evidence placed before the court as to why the father could not have collected X from the day care centre rather than from the mother’s residence.

14. As discussed, the father’s SMS’s of 18 September 2013 advised that he would not be able to collect X on the days discussed and he said he hoped the mother could collect him and in the later email asked the mother to confirm that she would be collecting X. There was no indication that the father was suggesting the alternative that he would come and collect X from the mother’s home.

15. The mother’s case is that X remained at the day care centre until she collected him at 5.15 pm and accordingly was available for collection there by the father in accordance with the orders.

16. It is difficult to see that this is not the case and the court finds that the father has not established a prima facie case that the mother contravened Orders 7(a) and 8 of the Orders of 25 July 2013 on 19 September 2013 in that she intentionally failed to comply with the orders.

20 September 2013

1. The father in his affidavit said that on 20 September 2013 he went to the mother’s residence just before 3.30 pm and waited there until 6.00 pm. He said that the mother did not bring X. The mother’s evidence, as discussed is that X was at the child care centre until she collected him at 5.00 pm on 20 September 2013. Her evidence was that it would take her a minimum of 45 minutes to return to her residence with the child. She said that while she had inspected the day care records and knew the time she collected X there, she could not recall the exact time she returned home. The father, as observed by the mother’s counsel, did not give evidence of any steps he took to collect X other than to come to the mother’s premises.

2. These facts, as well as those discussed in relation to 19 September 2013, are relevant to the court’s finding concerning 20 September 2013. Having considered these matters, the court finds that on the basis of the reasoning set out above, the court finds that the father has not established a prima facie case that the mother contravened the Orders 7(a) and 8 of the Orders of 25 July 2013 when on 20 September 2013 in that she intentionally failed to comply with the orders.

26 September 2013

1. The father annexed to his affidavit filed on 11 November 2013, an email dated 23 September 2013 addressed to the mother’s then solicitor, Mr Freedman.

2. In the email the father stated that he was writing further to the email received on the morning of 18 September 2013. He said that his request in the previous week was in relation to collection of X from day care on days when pursuant to the orders, X was to be in his care from 3.30 pm to 6.00 pm. He stated that having confirmed with the mother that he was unable to collect X from day care he had expected that the child would be at the mother’s residence to be collected by him. The email then asked for confirmation that on 26 September 2013 that if the mother “would like to collect and transport X from day care rather than have my aunty Ms N do so, I will collect him from Ms Frazier’s home so that he can still have his allowed time with me.” He added that he would anticipate that X would be at the mother’s home by approximately 4.15 pm. The letter concluded he looked forward to “your earliest response.”

3. In this email, the father was clearly seeking an alternative arrangement for the collection of X at the mother’s home rather than the day care centre in this email. He said that he received no response or acknowledgment of receipt of the email. The father said he waited at the mother’s residence at 3.30 pm to 6.30 pm on 26 September 2013 and that the mother did not return with X. The father in his affidavit affirmed on 15 January 2014 set out a table of emails sent to Mr Freedman. It indicated that there was a response to his emails of 18 August 2013, 15 September 2013 and 24 September 2013, which related to a court expert, but no response to the email of 23 September 2013 or to emails of 1 October 2013 or 2 October 2013.

4. The father contended that if the email could not be delivered, his sending server would deliver an email advising that the email could not be delivered. He said he had received no such email. The father had issued a subpoena to the firm Freedman & Gopalan Solicitors returnable on 27 January 2014. No documents were produced by the hearing date. Affidavit of Ms K was in evidence. Ms K described herself as a personal assistant who was employed the mother’s present solicitors, Swaab Attorneys. Her evidence was that she inspected the correspondence file of the mother’s previous lawyers, Freedman & Gopalan Solicitors, for the period August 2013 to November 2013 and ascertained that there was no email contained in the correspondence file from the father to Mr Freedman dated 23 September 2013 and that there was no email to the mother from Mr Freedman either referring to, or attaching, a copy of an email from the father dated 23 September 2013. The father upon being satisfied that the file was provided directly from the mother’s former solicitors to Swaab Attorneys did not require Ms K for cross examination.

5. An issue clearly was whether the mother had refused this proposal given that collection from her residence was an alternative arrangement envisaged in the Orders of 25 July 2013.

6. The father’s case was that it could be implied that her solicitors received the email and communicated its contents to the mother. However, she was directly asked by the father in cross examination whether she was aware of the email of 23 September 2013. She replied that she was not. Given this denial and the evidence of Ms K, despite the father’s contention about the response of his server to undelivered emails, the court cannot be satisfied that the email was brought to the mother’s attention and that she was therefore aware on or after 23 September 2013 that the father sought an alternative arrangement to allow X to spend time with him on 26 September 2013.

7. The father’s evidence was that on 26 September 2013 he waited at the mother’s premises from 3.30 pm until 6.00 pm and that at no time did she return with X. The mother’s evidence was that she had collected X at 4.40 pm on that date, that again she knew this because she had inspected the day care records but could not recall exactly what time she returned home. Again, X was available to be collected at the day care centre at 3.30 pm although the father, as he said, chose not to collect him there.

8. The court finds that the father has not established a prima facie case that the mother intentionally failed to comply with Orders 7(a) and 8 made on 25 July 2013 and accordingly his contravention application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Walker

Associate: 

Date:  26 February 2014