Wold and Kleppir

[2011] FamCA 311

FAMILY COURT OF AUSTRALIA

WOLD & KLEPPIR [2011] FamCA 311

FAMILY LAW – CHILDREN – Contravention of parenting orders – Where children are ordered to attend a specific school unless otherwise agreed to in writing between the parties – The father filed three contravention applications – Where the mother enrolled the children in a different school without the father’s consent – Where the mother withheld the children from spending time with the father on two occasions – Mother admits non-compliance but claims reasonable excuse – No witness was called by the mother to establish a reasonable excuse – Submissions on penalty to be heard at a later date – Final determination of penalty to issue after submissions.

DETERMINATION OF THREE CONTRAVENTIONS HEARD 4 JUNE 2010
FATHER’S CONTRAVENTION APPLICATION FILED 11 FEBRUARY 2010

APPLICANT: Ms Wold

RESPONDENT: Mr Kleppir

FILE NUMBER: BRC 3211 of 2008

DATE DELIVERED: 6 May 2011
Published from Chambers

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 4 June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Mother appearing in person

SOLICITOR FOR THE RESPONDENT: Mr Mould, Solicitor of John-Paul Mould Solicitors appearing for the Respondent Father

Orders

1. The further hearing of the contravention applications on the outstanding issue of the penalty to be imposed be adjourned to 10.00 am on 18 May 2011 at the Brisbane Registry of the Family Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3211/2008

Ms Wold

Applicant

And

Mr Kleppir

Respondent

REASONS FOR JUDGMENT

1. On the 4 June 2010 evidence was taken in relation to three contravention applications which had been brought by the Applicant (“the father”).  The father was represented by his solicitor on that occasion.  The Respondent (“the mother”) was not legally represented.

2. The mother had brought contempt charges against the father but for reasons I gave at the time the contempt charges were summarily dismissed.

3. The father had initially filed four contraventions but through his solicitor he indicated he would not be proceeding with the fourth contravention which related to telephone calls said to have been made on the 4 January 2010 (refer transcript page 20).

4. The orders which were said to be breached were orders made on the 27 October 2009.  The relevant orders are in the following terms:

   “…

   2.Mother and Father have equal, joint parental responsibility for the long term and short term care of the welfare of the children.

   3.The Father spend time with the children at all such times as the parties may agree in writing but failing agreement then as follows:

   a.        from 9.00 am Saturday until 5.00 pm Sunday, each      alternate weekend.

   …

   12.      The children shall attend [R School] in 2010 and shall continue to attend this school until the Mother and Father agree in writing to a change of schooling.”

5. The contraventions were in the following terms:

   “i.In early November 2009 the Respondent Mother enrolled the children in [S School], [Town 1] for 2010 instead of [R School], [Town 2] without the Father’s consent.

   ii.In contravention of the terms of paragraph (3) of the Orders of the 27 October 2009 for the weekend of the 21 November to 22 November 2009 the Respondent Mother withheld the children from the Applicant Father.

   iii.In contravention of the terms of paragraph (3) of the Orders of this Court of the 27 October 2009 for the weekend of the 5 December and 6 December 2009 the Respondent Mother withheld the children from the Applicant Father.”

6. In each instance the mother admitted that the order had not been complied with but claimed she had a reasonable excuse.  The onus of establishing the reasonable excuse rested on her.

Witnesses

1. In the father’s case he adduced evidence from two police officers, a Constable R and a Constable F, who had been called to the Mother’s residence on the weekend in December 2009.  Evidence was also called from Ms F who was the enrolments officer at R School College who produced documents and gave oral evidence.

2. The parties themselves gave evidence in the matter.

Oral Evidence of Constable R

1. Constable R gave evidence that accompanied by Constable F, he attended at the Father’s home at S Street, Brisbane Suburb 1 at about 11.00 am on the 5 December 2009.  He spoke to the father who informed him that the two children were at the next door neighbour’s place.  The witness advised the father that the mother was on her way from her home to the father’s home to collect the children as the children had reported to her that they were frightened.

2. The mother said to the Constable that she had been contacted by the neighbour who had reported to her that the children were frightened.  The police officer’s evidence was that they remained at the premises for about an hour and a half, “to try and sort the matter out”.

3. The police officer’s evidence was that he had not actually spoken to the neighbour to obtain her version of events nor does he recall her name being disclosed.

4. The police officer’s evidence was that during the time that he saw them on this occasion the children appeared, “normal to me”.  “They were happy while playing with the other children”.

Oral Evidence of Constable F

1. At transcript page 33 Constable F noted:

   “From my notes that I made on that day the kids had disclosed nothing that we were immediately concerned about.  I am aware that we had had things raised to us by yourself [the Mother] but I don’t believe the children raised anything like that.”

Findings of Credibility Re: Police Officers

1. I have no reason to doubt the veracity of the evidence given by the two police officers.

2. The onus of proof was on the mother to establish a reasonable excuse.  She elected not to call evidence from the female neighbour to support what she was saying.  She informed the Court the neighbour did not wish to become involved.  It appears the children may have been a little unsettled at the prospect of having to go to a family member’s home for a gathering but to my mind that was not sufficient reason for the mother to interfere with the father’s time with the children on the 5 December 2009.  At no time during the balance of the weekend did she seek to return the female child to the father’s care as she was required to do in accordance with the Court Order of the 27 October 2009.

Evidence of Ms F

1. As the enrolments officer at the R School, Ms F gave evidence that she had spoken to the mother but had never met her previously.  When she had spoken to her it had been the mother phoning seeking confirmation of an enquiry she had made to R School at an earlier period in time.

2. Her evidence (transcript page 35) was that there had been no application for enrolment of either of the children at the school.  Further at transcript page 35 the witness’ evidence was that the school has a policy that they do not turn any enrolments away.

Findings Generally

1. Having perused the transcript of the 4 June 2010, I note that at pages 64 to 66 I made findings on the evidence given by the parties themselves and I dismissed the Mother’s plea of reasonable excuse in relation to each contravention.  I incorporate the reasons given on that occasion into these reasons.

2. On that occasion I adjourned outstanding issues of costs.  The father was seeking costs incurred in prosecuting the contravention applications.  The mother sought the costs of an application heard and determined by the Principal Registrar on the 25 March 2010 when she filed an application seeking orders to permit the sale of the former matrimonial home to be completed.

3. At that time as the mother’s application for costs had not been brought to the father’s solicitor’s attention, I adjourned the matter for determination to the

   
   

   27 August 2010.

4. On the 27 August 2010, for reasons given at the time, I made no order as to costs holding that the respective costs were approximately equal and could be set off one against the other.  The orders that issued at that time did not incorporate the costs order.  I have now directed an amended order to issue.

5. In relation to the imposing of any penalty for the three contraventions I observed:

   “3.It is not appropriate on today’s date to determine penalty until full reasons for making the findings for the three contraventions established have been delivered, and to do that I need a transcript and I do not see any difficulty with adjourning the issue of delivery of those reasons and the issue of penalty to a date to be fixed.  I issue a caution to the Respondent that the attitude to penalty will be very much governed by her ability to comply with Court orders between now and the adjourned date.

   4.I also strongly recommend in relation to contraventions 2 and 3 which related to the interruption of the Father’s time with the children in not spending time with the children, that the Court has power to, and it is commonly done, to order make up time.  If between now and then the Mother communicates in whatever form with the Father whether by way of text messages, email, phone, letter and proposes some holiday time or some additional weekend time, then that would be seen as a positive gesture on her part to lessen the impact of the contravention breaches, particularly contravention breaches 2 and 3.”

6. Shortly prior to the hearing on costs on the 27 August 2010, the mother had filed an application in a case on the 19 August 2010 seeking an order that the previous order of the 27 October 2009 be varied to allow the two children to attend the S School, which they were at that time attending.

7. On the 27 August 2010 the father, through his legal representative, conceded that it was appropriate for the children to continue to attend the S School until the end of the year.  On the 27 August 2010 I made orders, the effect of which were that if the children were not enrolled at R School for the commencement of the 2011 school term or such other school as the parties may mutually agree in writing, then the Father was to have sole responsibility for making decisions on the children’s education.

8. On the 21 April 2011 the mother filed a notice of discontinuance of her application of the 19 August 2010, although the notice of discontinuance does not appear to have been personally signed.

9. I proceed on the basis the children are attending the R School or if they are not, they are attending a school agreed to by the parents.

10. The only remaining issue is that of penalty.

11. I propose to set this matter down for hearing (yet again) on the 18 May 2011.

12. I have previously heard the submissions on penalty.  I will allow an opportunity for further submissions on the adjourned date.

13. As I previously indicated in relation to contraventions 2 and 3 (being the non-attendance of the children on the weekends commencing 21 November and

    
    

    5 December 2009 respectively) my attitude to penalty would be very much influenced by any arrangement the mother has made to provide the father with make up time as compensation for the missed time.  My attitude to penalty will also be influenced by the degree of compliance with existing orders since the hearing on the 27 August 2010.

14. In relation to the first contravention I previously expressed the view that the nature of this contravention was such that I was prepared to make a finding that this constituted a serious contravention.  In the event I am to impose a penalty of a fine, a bond, a community service order or a sentence of imprisonment, I would need to be satisfied the contravention was established beyond a reasonable doubt.

15. Having regard to the findings made on the 4 June 2010 confirmed by the observations made in these reasons, I am prepared to make the finding that the contravention has been established beyond a reasonable doubt.

16. In considering any issue of penalty, I will hear submissions as to the current schooling of the children, and how that decision was reached.

17. I am only too conscious of the extraordinary amount of costs incurred by the parties to date, particularly the mother.  I am also only too conscious that seemingly since the 27 August 2010 there has been no further litigation between the parties and it is to be hoped that the level of communication has significantly improved.

18. The penalty I have in mind for the first contravention is if I make the appropriate findings of full compliance with Court Orders, a bond for say eighteen months in an amount of $500 to be conditional upon further compliance with Court Orders would be appropriate.  In the event a more severe penalty would be imposed I would consider imposing a community service order, but the difficulty with this is the mother has the care of the two children and as I understand it works full time.

19. I understand arrangements can be made for community service to be carried out on weekends – presumably weekends when the Father has the care of the children.

20. It is to be hoped that this option will not be necessary.

21. It is equally hoped that there will be no allegations that the father has behaved in some way to be obstructive to ensure in some way a harsher penalty is to be considered.

22. After the hearing of submissions on the 18 May 2011, final orders will issue.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 6 May 2011.

Associate: 

Date:  6 May 2011