Yates and Turner

FAMILY COURT OF AUSTRALIA

YATES & TURNER

[2009] FamCA 393

FAMILY LAW – CONTRAVENTION – whether there is a case to answer with respect to alleged contraventions by the mother of both parenting and property settlement orders

Family Law Act 1975 (Cth) ss 60B, 61B, 61D & 79

APPLICANT:

Mr Yates

RESPONDENT:

Ms Turner

FILE NUMBER:

ADF

1176

2005

DATE DELIVERED:

7 May 2009

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

7 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Self-Represented

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Croydons Barristers and Solicitors

Orders

No orders made.
Application dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1176 of 2005

MR YATES

Applicant

And

MS TURNER

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

I am asked now to rule on the question of whether the mother has a case to answer in relation to some of the allegations in relation to the contraventions of the Court orders. I will attempt to deal with them in the order in which they are filed.
The first contravention application which relates to the submission of no case to answer is contained in document 186, being contraventions filed by the father on 12 September 2008.
Specifically, that contravention application alleges that the mother has contravened the order of 23 May 2008, paragraph 5, on 10 September 2008 and 3 September 2008, by not facilitating what is described as “access to ordered telephone contact by not ensuring that the mobile phone that was supplied by the father was on or in a working condition”.
The application also relates to the 4 June 2008 and 28 May 2008 so far as the paternal grandparents are concerned, and 28 May in relation to the father.
The contravention filed on that day also includes an assertion that the mother has contravened the Family Court orders of 17 July 2008, paragraph 1(b), that order being the order of the Court in relation to financial property settlement matters.
It is alleged that on 5 August 2008 she breached the order by telling the Child Support Agency that she is entitled to:
“My property and moneys, after consenting to orders that state in paragraph 1(b) that, subject to paragraphs 1(c) and 2, the husband shall retain all assets and resources which he has, whensoever and howsoever acquired, including what is described as perspective property, and the wife shall have no claim against the husband with respect to property retained by him.
Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit, absolutely, his savings, his investments, furniture, furnishings and all other articles of personal and domestic use and ornament presently in his possession, power or control, his perspective superannuation entitlement, his vehicle and his personal effects.”
I understand the father's allegation is that the mother filed an application with the Child Support Agency (which they received after this Court order was made) in which she laid claim to an increase in child support payable by the father on the basis that he had received a WorkCover payout and in relation to other matters.
In relation to the orders so far as they relate to the father having communication with the child by way of mobile phone supplied by the father, that is paragraph 5 of the order of 23 May 2008, paragraph 5, which specifically says:
“That the husband have telephone communication with the child between 7.30 pm and 8 pm each Wednesday, when the child is in the wife's care, on a mobile phone provided by the husband to the child, with the call to be initiated by the husband.”
I have heard the evidence of the father in relation to his attempts to telephone the child after that Court order was made in May 2008. I have heard his oral evidence on oath and have seen his affidavit material in that regard. The fact that there may not be available to the Court at the time the father gave his evidence particular documents from the supplier of the mobile telephone does not mean that I should not accept the father's oral evidence and written evidence on oath that he attempted to telephone the child on the telephone number on the occasions to which he has sworn.
I therefore say, on that basis, there is a case to answer for the mother in relation to the steps that she took to ensure that the child was available, with the mobile phone provided by the husband to the child, at the appropriate times.
The issue of whether the mobile phone was in working order, however, is a step which has to be taken because it would appear from the evidence of the father that he acknowledges that, on the Father's Day weekend, he found out that the mobile phone which he had supplied was not in working order. Therefore it is established on the evidence provided by the father that the mother did not have a mobile phone provided by the father which was in working order at that time that relates to the period after the Father's Day period.
I propose to direct that the mother give her evidence in reply to the father's allegations concerning the calls made by the father to the child prior to the Father's Day weekend in September.
The only evidence I have in relation to the grandparents failing to have telephone contact with the child is that of the father. In view of the nature of these proceedings, I do not accept that the evidence of the father sufficiently establishes the failure of the mother to provide telephone contact with the grandparents on the occasions alleged as the evidence of the father is, of its very nature, hearsay and does not establish, at this stage on the necessary degree of proof that the orders were not obeyed.
I take into account that if there was something wrong with the mobile phone, and that was the only number the grandparents had, the telephone communication which the orders anticipated, which is in paragraph 8 of the order of 23 May 2008; namely:
“That the paternal grandparents have telephone communication with the child each alternate Wednesday, between 8 pm and 8.30 pm, when the child is in the wife's care, with the call to be initiated by the paternal grandparents.”
may not have been possible.
I therefore find that there is no case to answer in relation to the contravention insofar as it relates to the paternal grandparents having telephone communication with the child.
In the other aspects in relation to the contravention filed on 17 September 2008, the application relates to the alleged breach of the order of 17 July 2008, paragraph 1(b). That was a consent order made by Registrar Dore which was described as:
“In full and final settlement and satisfaction of either party's claims against the other for all time, for division of property, for alteration of property interests and pursuant to Part VIII of the Family Law Act 1975 as amended.”
Then it sets out in specific detail the orders to be made. In particular, the father has referred to paragraph 1(b), which provides:
“That he shall retain all assets and resources which he now has, whensoever or howsoever acquired, including perspective property, and the wife shall have no claim against the husband with respect to property retained by him. Including but without limiting the effect hereof, the husband shall retain for his sole use and benefit absolutely – ”
Then it refers to those assets to which I have previously referred.
Paragraph 1(c)(i) refers to a payment being made from the husband's WorkCover entitlement to Legal Services Commission and the trust account of the wife's solicitors. That is not of significance.
The father claims that the mother has breached that order by making a claim to the Child Support Agency for a change in the assessment of the child support based upon the receipt by the father of WorkCover payments and other specific items. The claim by the mother to the Child Support Agency is set out in the document filed on 14 April 2009, document 218. The annexures thereto include the application for a change of assessment related to the mother becoming aware that the father had recently received a lump sum payment in the sum of $55,000 as a result of a WorkCover claim against his employer.
It then refers to other matters, including allegations that the applicant receives moneys from various other entities. (I refer to paragraph 4 of reason 8 on page 16 of 35 of the Child Support annexed documents; it is not a numbered paragraph but it is the fourth paragraph on that page).
The mother submits that there is no case to answer on the basis that the application she signed was dated 9 July 2008 and therefore preceded the order of 17 July 2008. The father in reply points out that the Child Support Agency describes the document as having been received on the day after the Family Court order was made.
Those factors are irrelevant. The order of 17 July has to be read and seen in its context. The order of 17 July does not restrain the mother from making any claim in relation to child support. It purports to be an order which finalises the property settlement and financial issues so far as they relate to section 79 orders in the Family Court and do not in any way specifically prevent the mother from making a further application in relation to a change of child support.
In particular, the order which I have read out specifically refers to the matter being in full and final settlement of either party's claims in relation to division of property or alterations of property interests and pursuant to Part VIII of the Family Law Act1975 (Cth) as amended. It specifically refers to the husband retaining his assets and resources, and that the wife shall have no claim against him with respect to the property retained by him, but it does not specifically refer to the question of an assessment of child support and the significance of any of that property being retained by either party for the purposes of concluding any future child support assessments.
The application by the father in relation to the alleged contravention of the order of 17 July 2008 is misconceived and is not appropriate. I find therefore, that there is no case to answer in relation to that contravention, so far is it relates to the order of 17 July 2008.
The next contravention application, document 189, filed on 30 September 2008 deals with further allegations that the mother has breached the order of 23 May 2008, paragraph 5, in relation to telephone communication between the father and the child. It specifically refers to 17 September 2008 so far as the paternal grandparents are concerned and 17 and 24 September 2008 so far as the father is concerned.
Consistent with the comments I have already made, I am not satisfied that the father has established a case to answer in relation to the grandparents' telephone communication with the child, nor the conditions that would exist to make it necessary to establish a prima facie case in relation to telephone communication with the father after the Father's Day weekend.
The remaining contravention to be considered in relation to that contravention application is the allegation that the mother has not complied with the Family Court orders of 23 May 2008, paragraph 1, in that she has not fulfilled her obligations in relation to the “safe and responsible care of the child” resulting in behavioural problems at school.
The allegation itself continues to specify particulars referring to the child’s suspension from school and what is described as the mother's “actions of throwing [the child] out of his home twice and her letter to the school principal as clearly demonstrating a lack of parental responsibility and control” and allegations that the child had been left alone and had access to content that was not suitable.
Paragraph 1 of the order of 23 May 2008 specifically is headed Children's Issues:
(1)The parties shall retain equal shared parental responsibility for the child of the relationship, […], who was born on […] September 1994.
The allegation of the contravention does not provide a date or time of the alleged contravention but merely refers to the place as P.
The implication from the contravention application is, however, clearly that the father alleges that the mother has not fulfilled her obligations over a period of time since 23 May 2008, and prior to the contravention being filed on 3 September 2008.
The father refers the Court to section 60B in relation to the responsibilities of parents. He says that the mother has breached paragraph 1 because she has not exercised her parental responsibility. He highlights that by describing the behaviour of the child, using police documents and other factors to establish the problems in relation to the child’s behaviour which occurred after the order of 23 May 2008.
The question remains, however, whether the father has established a case to answer in relation to a failure of the mother to exercise her parental responsibility as he alleges.
Section 60B is headed "Objects of Part and principles underlying it." It describes:
The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
They are the objects of the part of the Act, which is Part VII, headed “Children”. That part of the Family Law Act now contains 235 sections and many, many subsections.
Section 60B continues to describe the principles which underlie the objects of the Act, these presumably being the principles which Parliament has decided form the basis of the objects of the legislation. It includes a principle that the parents jointly share duties and responsibilities concerning the care, welfare and development of their children, except when it is or would be contrary to a child's best interests.
Subsection (d) specifically says that, except where it will be contrary to a child's best interests, parents should agree about the future parenting of their children. It is most regrettable that it is clear that the parents of this child are unable to agree about the future parenting of the child and have resorted to many, many applications and hearings in this Court over a period of many years.
The objects, and the principles underlying those objects, have therefore not been met by the parents of the child in this case, clearly to the extent that they have been unable to agree about the future parenting of the child.
Division 2 is headed "Parental responsibility". Section 61B provides:
In this part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61D states:
A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
It is clear from paragraph 1 of the order of 23 May 2008 that the father and mother retain equal shared parental responsibility for the child. Equal shared parental responsibility of its very nature includes all the duties, powers, responsibilities and authority which parents have in relation to children. Obviously one of the duties parents have in relation to children is to ensure that they have a proper, safe, adequate upbringing.
The material before me provided by the father suggests it is clear that there are concerns about the child’s behaviour, both in relation to school and other matters. However, I am not satisfied that the evidence supplied by the father establishes that it is a failure by the mother to exercise her duties or responsibilities which has caused the behaviour by the child. There is not sufficient evidence to attribute what the mother has done or failed to do as the cause of that behaviour.
There is clearly a large amount of material already on file which would cause anybody to have a concern about both parties' ability to provide appropriate care for the child, particularly because of the ongoing litigation in relation to this child. However, specifically so far as it relates to the contravention application brought by the father, I am not satisfied that merely raising the issue of the child’s difficulties requires me to make an assumption that they have been caused by the mother's failure to attend to her duties and responsibilities as a parent, which she has undertaken by consent, pursuant to the order of 23 May 2008 (and which she would have had in any event, pursuant to the provisions of division 2 of Part VII of the Family Law Act in, if there had been no contrary order).
I therefore find that there is no case to answer in relation to the allegation in relation to the breach of the Family Court order in relation to parental responsibility.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 15 May 2009

[2009] FamCA 393

7 May 2009

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Abuse of Process

Stay of Proceedings