Weiss and Arnold

[2009] FamCA 342

FAMILY COURT OF AUSTRALIA

WEISS & ARNOLD [2009] FamCA 342

FAMILY LAW – CHILDREN – With whom a child spends time – orders – contravention

Family Law Act 1975 (Cth)

APPLICANT: Mr Weiss

RESPONDENT: Ms Arnold

INDEPENDENT CHILDREN’S LAWYER: Ms Judith Olsen

FILE NUMBER: NCF 941 of 2005

DATE DELIVERED: 20 April 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Murphy J

HEARING DATE: 20 April 2009

REPRESENTATION

APPLICANT: Appearing in person

COUNSEL FOR THE RESPONDENT: Mr Connors

SOLICITOR FOR THE RESPONDENT:

G & D Lawyers

Parramatta

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Harper

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Boyd Olsen Lawyers

Newcastle

Orders

1. The Contravention Application filed by the Father on 3 March 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 941  of 2005

MR WEISS

Applicant Father

And

MS ARNOLD

Respondent Mother

EX TEMPORE

REASONS FOR JUDGMENT

1. On 3 March 2009, the father in these proceedings filed an application for contravention together with an affidavit by him accompanying that application.  On 6 April 2009, Loughnan JR ordered that the application be adjourned for mention at the first day of the final hearing before me which commenced today. 

2. It is to be noted that the application for contravention was then filed some six weeks or so prior to the commencement of the final hearing of issues relating to the child the subject of the application for contravention.

3. At the commencement of the hearing, I attempted to explain to the father who appears for himself, the distinction between applications for contravention and applications for parenting orders and the differing principles applicable in respect of each.

4. In particular I indicated to the father that matters irrelevant to an application dealing with a specific contravention at a specific time on a specific date were highly likely to be relevant in respect of broader issues relating to the best interests of Z who is the child the subject of the substantive proceedings due to take place before me.

5. The father determined to proceed with the application for contravention.

6. It alleges, specifically that at 10.00 am on 1 March 2009 at P, the mother, without reasonable excuse, refused to allow the father to spend time with Z in accordance with a specified previous order made by this Court. 

7. The affidavit supporting the application makes clear (at exhibit A when read in conjunction with exhibit B) a number of things. 

8. First, the visit due to take place in accordance with the sequence of time provided for in the original orders on 22 February 2009 had been cancelled.  It seems clear that that cancellation was at the father's request.

9. In lieu of that specified period of time, an alternative time was arranged for Sunday 1 March between 10.15 am and 12.15 pm.  That changed arrangement, together with other changed arrangements in which cancelled visits for 8 March and 22 March and alternative visits in lieu of each of those two days, was the subject of a letter dated 5 February 2009 sent by Relationships Australia to each of the father and mother. 

10. It is admitted by the mother that a contravention occurred on 1 March 2009 by reason of the mother not providing the child for time at the Contact Centre in accordance with the changed arrangements just referred to.

11. The issue, then, in these proceedings is whether the mother's failure to provide the child occurred with reasonable excuse on her part. 

12. The mother gave evidence that, on that date, friends of the family who she had not seen for some six years were visiting and a social occasion had been arranged with them.  It is not the case, then, that the mother was unable to provide Z in accordance with the arrangements. Rather, alternative arrangements revolving around that social visit were preferred by the mother to the changed arrangements with respect to the contact centre. 

13. If this matter was to be determined by reference to that choice of a social arrangement over time between Z and his father, I would have little hesitation in finding that there was no reasonable excuse in respect of the contravention.

14. The picture is, however, more clouded.  It seems clear, on the evidence of the mother, unchallenged by the father in any cross examination, that her arrangements, (which it is to be noted also involve the two older children of the mother who are not the subject of current proceedings) were made to take account of the time arrangements between Z and his father.  The mother indicated that it was because of the necessity to take account of the ordered time between Z and his father that the social occasion was arranged for Sunday 1 March significantly in advance of it occurring. That occurred in circumstances where, I note, the participants in that social occasion had travelled from Western Australia and had not seen the mother - and the children - for some six years.

15. Secondly, the mother gave evidence, (which although hearsay, was, again, not challenged by objection or any cross examination by the father) that, consequent upon the change in arrangements and the clash between the changed arrangements and the social occasion already referred to, the contact centre, on the mother's behalf, made a number of attempts to contact the father. 

16. The mother indicated, again hearsay, but, again, not objected to or challenged, that the contact centre had made "several phone calls" to the father, but that all attempts to contact the father in that manner by the contact centre proved unsuccessful. 

17. Those circumstances place the reasonableness or otherwise of the mother's behaviour in a context different to that baldly outlined earlier. 

18. In my view, in the light of those circumstances, and the unchallenged evidence of the mother in relation to those circumstances, it seems to me that the mother had a reasonable excuse for failing to make Z available in respect of the changed arrangements at the time, on the date, and at the place, the subject of the specific allegation deposed to in the application for contravention and accompanying affidavit. 

19. In those circumstances I find that the mother had reasonable excuse, within the meaning of the Act, for failing to provide Z for time with his father in accordance with the orders of the Court.

20. The father’s application for contravention filed on 3 March 2009 is accordingly dismissed.

21. That being the case, the substantive proceedings can now commence.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  23 April 2009