Yates and Turner (No. 2)
[2009] FamCA 757
•21 August 2009
FAMILY COURT OF AUSTRALIA
| YATES & TURNER (NO. 2) | [2009] FamCA 757 |
| FAMILY LAW – ORDERS – CONTRAVENTION – applications by the father alleging the mother contravened orders for the father to communicate with the child and to supply the child’s personal effects to the father – not established on the balance of probabilities that the mother intentionally failed to comply or made no reasonable attempt to comply with the order for the father to communicate with the child – mother contravened the order to supply the child’s personal effects to the father without reasonable excuse |
| Family Law Act 1975 (Cth) ss 64B(2)(i), 65NA, 70NAC, 70NAD, 70NAE & 70NAF |
| LGM & CAM (Contempt) (No 2) (2008) FLC 93-355 |
| APPLICANT: | Mr Yates |
| RESPONDENT: | Ms Turner |
| FILE NUMBER: | ADF | 1176 | of | 2005 |
| DATE DELIVERED: | 21 August 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 21 April 2009 and 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 |
Orders
As previously indicated to the parties I will adjourn the matter to enable the parties to consider my reasons and prepare submissions to me as to the orders which should thereafter follow.
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 YEATES |
Applicant
And
| MS TURNER |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant father, Mr Yates, filed an application in which he alleges that the mother, Ms Turner, has contravened orders of the Court.
He alleged that the mother did not facilitate “access to ordered telephone contact with the father by not ensuring that the mobile phone that was supplied by the father was on or in a working condition” on various dates (see document 186).
By ex-tempore judgment on the 7 May 2009 I found there was no case to answer in relation to that application for contravention filed on the 12 September 2008 (document 186) other than the times when the father alleges there were contraventions prior to Father’s Day weekend in 2008. (Father’s Day was on the 7 September 2008).
The other outstanding contravention before the Court is the contravention application filed by the father on the 11 March 2009 in which the father alleges that the mother contravened the orders of the Court in that she “did not supply the personal effects including clothes, medication, games, etc of the child […] as specified in paragraph 7 of the said order” (see the father’s contravention application document 209 paragraph 7).
The orders alleged to have been contravened.
On 23 May 2008 the Consent Order was made which provided:
“That the husband have telephone communication with the child between 7.30 pm and 8.00 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.”
On 10 December 2008 orders were made by the Honourable Justice Burr which, inter alia, provided in paragraph 7 (during the period of the adjournment to 26 March 2009) that:
“By 8.00 pm on Sunday 14 December 2008 the mother do provide to the father [the child’s] personal effects, clothing, prescribed medications, mobile telephone and charger, computer games and other games.”
The contraventions
The specific allegations to be considered therefore are that the mother contravened paragraph 5 of the orders of the 23 May 2008 on the 28 May 2008, 4 June 2008 and 3 September 2008 because she “did not facilitate access to ordered telephone contact with the father by not ensuring that the mobile phone that was supplied by the father was on or in a working condition”. (Father’s contravention allegation in document 186).
The specific contravention in relation to the order of the 10 December 2008 (paragraph 7) is that by 7.30 pm on the 14 December 2008 “The respondent did intentionally … breach the orders made by Justice Burr on Wednesday 10th December 2008 and did not supply the personal effects including clothes, medication, games, etc of the child …” (Father’s contravention allegation in document 209).
The hearing
The hearing of the contravention applications commenced before me on the 21 April 2009 and finished on the 7 May 2009. The mother was represented by Ms Lee of Counsel. The father appeared unrepresented.
At the hearing before me the father relied on the contravention application and his affidavits filed in support of those contravention applications together with his oral evidence and exhibits tendered and received by the Court. The father also relied on the evidence of his friend Mr J.
The mother gave oral evidence and also relied upon exhibits provided to the Court.
The Law
Division 13A of Part VII of the Family Law Act1975 (Cth) contains the sections relevant to this matter. The heading for that Division is “Consequences of failure to comply with orders, and other obligations, that affect children”. The order for telephone communication between the father and the child made in paragraph 5 of the orders of the 23 May 2008 is such an order.
Section 70NAC is headed “Meaning of Contravened an Order” and states:
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;
Paragraph 70NAD(c) states:
(a) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order;
Section 70NAE is headed “Meaning of reasonable excuse for contravening an order” and provides:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
…
(6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
…
Section 65NA provides:
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.
(2) A person must not:
(a)hinder or prevent a person and the child from communicating with each other in accordance with the order; or
(b)interfere with the communication that a person and the child are supposed to have with each other under the order.
Section 70NAF is headed “Standard of Proof” and provides:
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The court may only make an order under:
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.
Contraventions in relation to telephone communication between the father and the child.
Correspondence passed between the father and the mother’s solicitors shortly after the order was made on the 23 May 2008. The mother’s solicitors informed the father that the mother had not received a sealed copy of the orders of the 23 May 2008 until late in the week immediately preceding the 10 June 2008. An email from the mother’s solicitors to the father dated 10 June 2008 says:
“We refer to the above matter and your correspondence of the 29 May 2008. We apologise for the delay in replying to you, however we had not been able to contact our client until late last week. We confirm now that our client has a copy of the sealed orders. In relation to your queries, we confirm that up until late last week our client did not have a copy of the orders, nor had we been able to advise her verbally of the orders made.
However, this has now been rectified.”
When cross-examined by the father, the mother admitted that although she was not present in Court on the 23 May 2008 when the Court orders were made by consent, she was aware of the specific detail in the Court orders to be made that day and that they were to be made by consent. She said that she could not recall whether she had a telephone conversation that day with Ms Lee.
I am satisfied therefore that whilst the mother may not have received a sealed copy of the orders of the Family Court made on the 23 May 2008 before approximately the 5 or 6 June 2008 the inference can readily be drawn that the mother was at all times after the 23 May 2008 aware of the order and its terms (being a consent order made on her instructions on the 23 May 2008). (See LGM & CAM (Contempt) (No 2) (2008) FLC 93-355).
I am therefore satisfied on the balance of probabilities that the mother was aware of the order and the specific terms of the order:
“That the husband have telephone communication with the child between 7.30 pm and 8.00 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.”
The 28 May 2008, 4 June 2008 and 3 September 2008 were all Wednesdays.
The father swore an affidavit on the 11 September 2008 which was filed in the Family Court on the 12 September 2008 in which he said:
“2. That on the 28th May 2008, at 7.30 pm I did attempt to have telephone contact with my son [the child] as stipulated in family court orders dated 23rd May 2008. The mobile phone that I supplied for this contact was switched off at this time. This allocated time was proposed by [the mother] and agreed to by myself in consensual orders that were finalised on the 23rd May 2008.
…
6. That on the 4th June 2008, at 7.30pm I did attempt to have telephone contact with my son [the child] as stipulated in family court orders dated 23rd May 2008. The mobile phone that I supplied for this contact was switched off at this time. This allocated time was proposed by [the mother] and agreed to by myself in consensual orders that were finalised on the 23rd May 2008.
…
13. That on the 3rd September 2008, at 7.30pm I did attempt to have telephone contact with my son [the child] as stipulated in family court orders dated 23rd May 2008. The mobile phone that I supplied for this contact was switched off at this time. This allocated time was proposed by [the mother] and agreed to by myself in consensual orders that were finalised on the 23rd May 2008.”
During his oral evidence he was not significantly challenged about this evidence.
When the mother gave evidence before the Court her evidence about what occurred on the 28 May 2008 and the 4 June 2008 was inconsistent. Initially, her evidence was that she had a personal diary note which said that the father had a five minute conversation with the child on the 28 May 2008, but she was not sure about what happened on the 4 June 2008. She said there were many occasions when the father had not contacted the child. Later she said that she was not sure whether the father contacted the child on the 28 May 2008 and had a conversation with the child or not. She was not sure whether he did have a conversation with the child on the 4 June 2008.
The wife said that she understood that the terms of the orders were such that the father was to provide a mobile telephone which she was to make sure was available to the child at the time specified in the Court order.
The mother’s evidence was that on the 3 September 2008 the child was given the telephone and went to his room about five minutes before 7.30 pm. She said that the child then came out and told her that he had locked the telephone and was unable to unlock it. The mother was also unable to unlock the telephone.
When cross-examined by the father the mother said that she did not have her diary with her in Court. The mother did not admit that on the relevant occasions in May and June 2008 she was aware that the mobile telephone for the child to use was turned off.
Whilst the father produced records from the telephone company concerning calls in September 2008, he did not produce any documentary evidence confirming attempted calls on the 28 May or the 4 June 2008.
Having carefully considered all of the evidence concerning the alleged contravention of paragraph 5 of the order of the 23 May 2008, I am not satisfied on the balance of probabilities that the father has established that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order.
Evidence in relation to the alleged contravention in the delivery of the child’s personal effects
On Wednesday 10 December 2008 His Honour Justice Burr noted that the child was then residing with the father and adjourned the matter to the 26 March 2009. He ordered that the child live with the father.
In paragraph 7, His Honour ordered:
“By 8.00 pm on Sunday 14 December 2008 the mother do provide to the father [the child’s] personal effects, clothing, prescribed medications, mobile telephone and charger, computer games and other games.”
In the contravention application filed by the father on the 11 March 2009 the father asserted that the mother contravened that order saying:
“The respondent did intentionally and with total disregard to the Family Court of Australia’s authority breached the orders made by Justice Burr on Wednesday 10 December 2008 and did not supply the personal effects, including clothes, medication, games etc of the child […] as specified in paragraph 7 of the said order.”
I am satisfied that this order falls within the definition of parenting orders set out in section 64B(2)(i) “any aspect of the care, welfare or development of the child …” The alleged contravention therefore falls within Division 13A.
Annexure “D” to the affidavit of the father filed on the 15 December 2008 set out an SMS message between the mother and the father on the 13 December 2008 as follows:
“Time16:01
Mother:U can collect [the child’s] things from stateliner bus terminal in Adelaide
Time17:47
Father:What time? What day?
Time17:50
Mother:Its there now. Chow”
The father and his witness, Mr J, both gave evidence that they attended at Central bus terminal on the 14 December 2008, but were told by a clerk at the bus terminal that there was nothing for them to collect. They were told that nothing had been booked on the Monday or Tuesday bus, even though the father had been informed by the mother that the child’s personal effects were there to be collected.
Also annexed to the father’s affidavit is a note signed by a person apparently working for Premier Stateliner (the bus company) saying:
“As at 10.09 am Sunday we here in Adelaide Terminal were not holding any freight or luggage for [Yates] or [Turner].”
This note is handwritten and dated 14 December 2008.
The father admitted that later in early January 2009, he collected some belongings from the Bus Terminal but at that time had still not received other items which he considered to be the child’s personal belongings.
When the mother gave evidence she said that she was aware of the order. She said that on the 12 December 2008 at about 4.00 pm or 4.30 pm in the afternoon she went to the Stateliner Bus Depot and directed that items be sent to Adelaide for the child. She said the items were in a shopping bag sealed down. It contained two shirts, two shorts, card games, tamagotchi games, prescription medicine and some computer games. Exhibit 4 is a receipt which was produced by the wife. It shows a date in December 2008 at 16.51. The actual day in December is however not legible, although it may have a handwritten “6” in very faint writing before the “12”.
During cross-examination by the father the mother was referred to her affidavit filed on the 29 April 2009 in paragraph 6 which states:
“On the 11th day of December 2008 I telephoned my solicitor’s office and instructed them that I would provide some of [the child’s] belongings to him.”
The mother was asked by the father what reason she had decided to send some but not all of the child’s belongings (my emphasis). The mother’s reply was that the Judge had not ordered “all” of his belongings.
The mother’s case is that the parcel which she delivered on the 12 December 2008 to the Stateliner Office, arrived in Adelaide on the 15 December 2008. However, the mother was expecting the parcel would have been there by the morning of the 14 December 2008.
The mother’s case is also that she decided that the order did not provide for all of the child’s belongings to be sent and that the order was capable of being interpreted as referring to just “some” of the child’s belongings.
Having heard the evidence, and in particular the cross-examination of the mother and the text messages sent by the mother, I am satisfied that the mother had a reasonable belief that the parcel which she sent by Stateliner Bus would arrive in Adelaide by 8.00 pm on the 14 December 2008.
However, the mother admits that she did not deliver to the child the following items which were in her possession. (See Exhibit 6).
“Items on Annexure ‘B’ which belong to [the child] in her possession or control
·Clothes and shoes
·Playstation 2 console
·Controllers, Eyetoy and all cabling
·Playstation games including but not limited to: Jack 3, Simpsons Hit & Run, Sims 2, Pimp my Ride, Grand Theft Auto, Vice City Stories, Lego Star Wars, Star Wars Battlefront 1, Mortal Kombat, World Scariest Police Chases, 3 Playstation 2 Games Demo discs, Crash Bash, Crash Tag Team, Crash Team Racing, Crash Twinsanity, Need for Speed High Stakes, Pirates of the Caribbean – legend of Jack Sparrow, Eyetoy Play 2 games, Spy toy the game
·DVD player (gift from paternal grandparents)
·DVD Star Wars Episode 3
·Portable DVD Player
·Push bike and helmet
·Lego and Knex
·Computer games – all games on the list apart from Sim Instruction Manual
·All board games as outlined on [the child’s] list apart from Backgammon
·All toys on the list apart from Air Hockey table and toy box
·MP3 player – USB MP3 for music and data storage.”
I am satisfied that all of these items fall within the description of the child’s personal effects being specifically referred to in the order of Justice Burr as “personal effects, clothing, computer games and other games …”.
I do not accept that it is a reasonable interpretation of the order (or a reasonable excuse for the mother) to assert in the circumstances that she could choose to deliver up only those personal effects, clothing, computer games and other games which she decided should be delivered.
The evidence, including the letter of the mother’s solicitors and the mother’s oral evidence, satisfy me that the mother made no reasonable attempt to comply with the order relating to many items in her possession by the time prescribed namely, by 8.00 pm on Sunday 14 December 2008. At the time of the hearing in April and May 2009 the mother had not yet delivered those items.
The mother has conceded that she did not deliver items belonging to the child which clearly fall within the description of “computer games and other games”. The mother did not provide any explanation for not delivering items such as the child’s DVD player, push-bike and helmet.
The mother’s assertion that the order could be interpreted to relate to some, not all, of the child’s personal effects does not establish, on the balance of probabilities that she did not understand the order, nor does it establish a reasonable excuse for failing to obey the order.
The mother has therefore contravened the order of the 10 December 2008 without reasonable excuse.
It is necessary to hear submissions on the orders to be made in relation to this contravention. It will also be appropriate to consider submissions in relation to the contravention alleged, but not established, in relation to telephone communication.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe
Associate:
Date: 21 August 2009
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