Webber and Budd

[2010] FamCA 1249

FAMILY COURT OF AUSTRALIA

WEBBER & BUDD [2010] FamCA 1249

FAMILY LAW – CHILDREN – Contravention

APPLICANT: Mr Webber

RESPONDENT: Ms Budd

INDEPENDENT CHILDREN’S LAWYER: Ms J. Lloyd

FILE NUMBER: CAC 1614 of 2009

DATE DELIVERED: 24 August 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 24 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represent litigant

SOLICITOR FOR THE APPLICANT: Self-represented litigant

COUNSEL FOR THE RESPONDENT: Mr R. Thomas (appearing pro bono)

SOLICITOR FOR THE RESPONDENT: Self-represented litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J.Lloyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Associates

Orders

IT IS ORDERED THAT:

1. In respect of the Application for Contravention filed by the father on 30 June 2010 I find in relation to two of the counts that the respondent has without reasonable excuse failed to comply with orders of this Court.

2. I dismiss the remaining allegations.

3. I determine that in the circumstances it is inexpedient to inflict any further penalty upon the mother.

4. That finalises that application for this Court.

5. The existing orders about the time the children will spend with their father are suspended until the hearing of the substantive matters between the parties on 28 and 29 October 2010 and in place the following orders are made.

   a.Each of the parties will do such things as are necessary to cause the children to spend time with their father on every second weekend for a period of three hours on each of the Saturday and Sunday of that weekend between the hours of 12 noon and 3.00pm.  In each case the children will be delivered by their mother somebody on her behalf to the park in B for collection by their father and returned to that park at 3.00pm on that day.

   b.Such time with the children is dependant upon the mother being satisfied in the manner hereafter set out that the father is capable of dealing with any situation that may arise during that period in relation to the child S.

   c.To facilitate the satisfaction referred to in the last order on the part of S and E’s mother, the mother’s solicitor will communicate with Dr N as soon as practicable in any event on or before the close of business on Thursday 26 August 2010 to determine from Dr N what it any training and or knowledge the father is required to have properly to deal with any situation that may arise with S while S and E are in his care.

   d.The father will communicate directly or direct with Dr N to answer any queries Dr N may have about the training that the father has undergone, his knowledge of the conditions from which S suffers and his knowledge of the treatment required by S and will discuss with him the situations that may arise and what steps may properly be taken by the father to deal with them during the time that S is with him.

   e.Dr N will communicate with the mother’s solicitor for the purpose of satisfying that person that Dr N, that is satisfied that there is no reason why S and E should not spend time with their father based on S’s father’s ability to care for him and to deal with situations that may arise while S is with him for the times set out in the course of these orders.

6. I direct a Registrar of this Court to cause a copy of this order to be sent by either email or by facsimile to Dr N as soon as possible after it has been formally taken out to facilitate Dr N’s understanding of the process to be put in place.

7. I make directions in relation to the primary proceedings between the parties in accordance with the document I have circulated to the parties and to the Independent Children’s Lawyer during the course of these proceedings. 

8. a.        Each of the parties will file all affidavits upon which they seek to rely on or before 4.00pm on 12 October 2010.

   b.These affidavits will include in the mother’s case any affidavits from any medial practitioners about S and his conditions and treatment or about herself.

9. Each of the parties will file on or before 4.00pm on 12 October 2010 a minute (or a document setting out) the orders that he or she seeks that the Court make in relation to the children at the finalisation of the Less Adversarial Trial including but not limited to:

   a.with whom the children will primarily live,

   b.the time that the children will spend with the other parent or other parents family,

   c.how the children and the other parent will communicate,

   d.the extent to which and how parental responsibility for the children will be shared,

   e.arrangements for special days (Christmas Day, Easter Sunday, the children’s birthdays, the birthdays of each of the parents, Mother’s and Father’s Day), and

   f.proposals about how the parents will consult and be kept informed about the children’s medical conditions and treatment.

10. Either party and the Independent Children’s Lawyer may issue subpoenas which will be returnable on any Monday up to and including 11 October 2010.

11. Further to the order made by me on 9 August 2010 each of the parties will cooperate in ensuring that the Family Consultant is able to prepare a Family Report in a timely way to assist with the finalisation of the Less Adversarial Trial.

12. In addition to the terms of reference contained in the order referred to the Family Consultant will consider the following terms of reference:

    a.The ability of each parent to maintain and or foster the relationship with the other parent and the other parent’s family;

    b.The capacity of each parent to comply with order of the Court;

    c.i.         The views of the children about where they might primarily live and the time they might spend with the other parent; and

    ii.To the extent that it is possible to do so, the genuineness and maturity of any views expressed by the children and whether such views may have been or are influenced by any other person and if so by whom.

13. The matter is otherwise confirmed to be heard in finalisation of the Less Adversarial Trial on 28 and 29 October 2010 commencing at 10.00am on 28 October 2010.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER:    CAC 1614 of 2009

MR WEBBER

Applicant

And

MS BUDD

Respondent

REASONS FOR JUDGMENT

1. In relation to the application for contravention filed by the father on 30 June 2010, there were alleged breaches by the mother of orders made by me on 26 May 2010 (specifically orders 5, 7, 9, 10 and 13). 

2. In this regard, it could not be established, in my opinion, that there was a breach of the orders associated with S playing rugby league, as the evidence before me makes it clear that he has not been playing rugby league, even if he has been playing rugby union and soccer.  In those circumstances, the allegations about, or associated with, his playing rugby league must necessarily fail – those being, in effect, orders 5 and 7. 

3. The remaining allegations relate to the default provisions concerned with S not playing rugby league (that is order 10) in relation to which a prima facie case was conceded by counsel for the mother.  In this regard, the mother’s evidence was that S’s health was such that it precluded the father from being able properly to care for him.  That, in the circumstances, constituted a reasonable excuse. 

4. The further breach asserted was that in contravention of order 13, the telephonic communications ordered by order 13 had not occurred.  The mother said in relation to this matter that this was essentially a “double excuse”: one, that she should not be subjected to unreasonable abuse from the father, and that this was a likely consequence of her taking a telephone call in those circumstances; two, that the children, in any event, did not want to speak with their father, and that she was not going to require them to do so. 

5. I turn first, and briefly, to the failure to provide the children to spend time with their father in accordance, essentially, with the default provisions in order 10.  I do not find that the reasonable excuse has been established.  The orders have been in place since 26 May 2010, and there has been no attempt on the part of the mother to file any application to change them.

6. I accept in broad terms the genuineness of the mother’s concerns, particularly about her son.  If she genuinely believed that, however, then it would have been open to her to at least have implemented some form of proceedings to change the orders.  She did not do so. 

7. In such circumstances, I can only regard her asserted concerns about the treatment that S might have while with his father as not being a valid reason for her not to provide him and E, for whom this excuse does not apply in any event, to spend time with their father. 

8. In so far as the allegations about communications are concerned, it is difficult without seeing a more comprehensive suite of evidence, which will occur at the end of October 2010, to determine what, if any, reasons there might be for the children not to want to speak with their father.

9. It seems difficult to imagine why – and I think in this regard the father’s submission on the point has some strength – the children would be so contrary about this matter, if it were not some intervention by somebody else to cause them to have this negative view, given that they have not spent time with their father virtually at all, and in E’s case, since May 2009.  That also reinforces my concern that the nightmares that E is suffering may have no causal connection to her father at all.  These are matters which require further consideration in due course, but, in my opinion, do not establish at this stage a reasonable excuse. 

10. In this regard, I make no particular finding about the concerns expressed by the mother in relation to abuse, except that it is quite clear from her own evidence that she has not spoken to the father in about a year, so that whatever concerns she may have had about being abused clearly predated that period, and do not constitute, in these circumstances, a proper basis for her failing to comply with the order. 

11. Having found that the allegations against the mother in respect of those two matters are proved, it seems to me, in the light of the fact that there has been an agreement between the parents about the arrangements that might properly exist between now and the end of the year, that it is inexpedient for me to inflict any additional penalty upon the mother. The mother has a difficult enough task as it is with S, as has been acknowledged on several times when she has not been in court by the father, and she has had pain and suffering in response to his multiple, complicated situations, which the father has consistently acknowledged as being a matter of grave concern. He has expressed his admiration for her ability as a mother, except about her lack of encouragement for the children having a relationship with him. 

12. In those circumstances, I take account of her personal concerns and the difficulties she has faced.  I take account of the fact that the parties have been able to reach some accord about what is to happen between now and the end of October.  As I say, it is inexpedient to inflict any punishment.  As I indicated I will also reserve the question of any expenses that the father may have in relation to these proceedings, to the termination of the substantive proceedings before me in October.  I also indicate in relation to those proceedings that I will make the additional directions and orders that are set out in the document I have shared with the parties today and they will be incorporated into an order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 24 August 2010. 

Senior Legal Associate:

Date: 3 September 2010