Z and G
[2003] FMCAfam 25
•13 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| Z & G | [2003] FMCA fam25 |
| FAMILY LAW – CHILDREN – Contact – contravention – reasonable excuse for contravention – child aged 10 years – application in respect of contravention of order since discharge – little utility in proceeding in respect of a contravention said to have occurred almost two years before the application was commenced – abuse of process – parents have positive obligations. ORDERS – Contravention. WORDS AND PHRASES –“reasonable excuse”. Family Law Act 1975 (Cth), ss.70NBA, 70NE O’Brien (1992) 16 Fam LR 723; (1993) FLC 92-396 |
| Applicant: | K L Z |
| Respondent: | K J G |
| File No: | PAM 4517 of 2002 |
| Delivered on: | 13 February 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 3 February 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Papantoniou & Associates |
| Solicitor for the Respondent: | Ian Harper & Co |
ORDERS
Count no. 3 of the Application filed on 25 November 2002 alleging that the Respondent contravened Order 3 made on 28 February 1997 is withdrawn.
Count No. 2 of the said Application alleging that the Respondent contravened Order 1(a) made on 5 December 1997 is dismissed.
The allegation contained in Count No. 1 that on 9 November 2002 the Respondent contravened Order 4(a) made on 22 January 2001 is found proved.
The respondent has not established that she had a reasonable excuse for the above contravention of the said Order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4517 of 2002
| K L Z |
Applicant
And
| K J G |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father to have the mother dealt with by the court for contravention of contact orders made by the Family Court of Australia at Parramatta. The orders were:
a)consent orders made on 5th December 1997; and
b)consent orders made on 22nd January 2001.
In his Application, which was filed on 25th November 2002, the Applicant had also alleged that the Respondent mother had contravened an earlier order on 8th August and 18th October 1997. The Applicant’s solicitor withdrew this allegation before the hearing commenced.
Background
The orders concerned relate to the Applicant father’s contact with the parties’ daughter, A L K Z, who was born on 8th December 1992. The child lives with the mother, and has done so at least since Orders were made by consent in the Family Court on 28th February 1997.
In his Application, the father alleges, first of all, that the mother contravened an Order originally made on 28th February 1997 and varied by consent on 5th December 1997, providing that the father should have contact with the child on alternate weekends, commencing at 10.00 am on the Saturday morning. The allegation is that the mother did not make the child available for contact on the morning of Saturday 9th December 2000. The mother denied that allegation.
The other allegation is that the mother contravened an order made on 22nd January 2001 which provided that the father should have contact with the child on alternate weekends commencing at 8.30 am on the Saturday. The father claims that the mother did not make the child available for contact on the weekend commencing 9th November 2002. The mother denied that allegation, also.
The mother made an application at the outset that the Application should be dismissed, as the affidavit material did not show that there was a case to answer in respect of either allegation. This application was unsuccessful.
The basis for the application in respect of the allegation of a contravention of the Order made on 5th December 1997 was that the Order had been discharged by virtue of the later Orders made on 22nd January 2001, and that the allegation of a contravention was not made until 25th November 2002, after the relevant Order had been discharged. I found that the allegation was that there had been a contravention of the Order on 9th December 2000, at which time the Order was in force. The provisions of s.70NBA of the Family Law Act do not apply, as no court had made any order in respect of that alleged contravention before the commencement of Division 13A. It follows that the legislation has retrospective operation in respect of an alleged contravention before the commencement date of an order made before the commencement date.
The mother also claimed that the evidence showed that the father had not attended to collect the child at the appointed starting time of that contact, being 8.30 am and that, therefore, she could not be shown to have contravened the Order. I was not persuaded by that argument, as the Order provides for contact to extend for the entire weekend, and there is evidence that the father attended at the mother’s home and sought contact with the child at 2.30 pm on the Saturday. The father alleges that the mother said to him “You will be waiting a long time, as April is not going to your house this weekend”.[1]
[1] Applicant’s affidavit sworn 19.11.2002, paragraph 17.
Issues
The allegation of the contravention of the earlier order on 9th December 2000 concerns issues of fact. The father claimed in his affidavit that he arrived at the mother’s residence on the morning of 9th December 2000 to find that no-one was home. The mother gave evidence that she had been out, but arrived home at well before 10.00 am, when contact was due to commence. In respect of the second allegation, there was evidence of an informal agreement to vary the times to take account of the child’s dancing lessons, but on that particular day a slight additional variation could not be agreed upon. When the father arrived on the Saturday afternoon, the mother deposed in her affidavit that the child told him “I don’t want to come” and “I’m not coming”.[2]
[2] Respondent’s affidavit sworn 3.2.2003, paragraphs 13 and 14.
The mother argues either that, faced with the child’s refusals, she either did not contravene the order or that she had a reasonable excuse for doing so.
Principles to be considered in contravention proceedings
Section 70NC of the Family Law Act provides that a person is taken to have contravened an order 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.”
Section 70ND(b) provides that “a contact order is taken to include a requirement that people act in accordance with section 65N in relation to the order.”
Section 65N(2), for its part, provides as follows:
“[Person must not hinder, prevent or interfere with contact]
A person must not:
a) hinder or prevent a person and the child from having contact in accordance with the order; or
b) interfere with the contact that a person and the child are supposed to have with each other under the order.”
A person may establish that he or she had a reasonable excuse for contravening an order (section 70NE). The standard of proof to be applied in determining whether the person had a reasonable excuse for the contravention is proof on the balance of probabilities (section 70NEA).
The allegation of the 9th December 2000
The father relies on his affidavit originally sworn on 13th December 2000 and annexed to his affidavit sworn on 19th November 2002. He gives no detail in his affidavit as to when in the morning he arrived at the mother’s residence seeking to exercise contact, only to say “I got a lift to A’s place Saturday morning 9th December 2000 with no one at home”. The mother in her evidence said that she had been out but had arrived back with the child well before 10.00 am, which is the time the order specified that contact should commence.
On that evidence, I cannot be satisfied to the requisite standard that the mother did in fact contravene the order. There would need to be evidence that the father had arrived at the appropriate time, and the father’s affidavit does not provide this evidence. This allegation will therefore be dismissed.
I would comment that it is difficult to see what useful purpose is served by commencing contravention proceedings in respect of weekend contact almost two years after the alleged contravention had taken place. The evidence shows that the parties had negotiated consent orders relating to contact on 22nd January 2001, after the alleged contravention, and that contact had taken place more or less in accordance with those orders since that date. A litigant who seeks to proceed with an application in respect of an incident that happened nearly two years before runs the risk of having that proceeding declared to be an abuse of process of the court.
The allegation of contravention of the order of 22 January 2001
There is evidence that there had been informal variations of the order to meet the requirements of the child’s dancing lessons, but the parties were unable to negotiate a specific arrangement for the weekend commencing on Saturday 9th November 2002. It is not a defence to an allegation that a party did not have contact for an entire weekend to say that the party did not attend at the time set for the commencement of contact and therefore contact for the entire weekend is forfeited. There is evidence that the father attended at the mother’s residence on the Saturday afternoon seeking to exercise contact, and that contact did not take place. The mother gives evidence that the child said “I’m not coming” and went into the house and slammed the door. The mother said “It’s obvious that she doesn’t want to go and we can’t make her”.[3]
[3] Mother’s affidavit, paragraph 14
Parents have positive obligations in relation to contact. They must genuinely comply with orders by encouraging contact (O’Brien (1992) 16Fam LR 723; (1993) FLC 92-396). It is not a reasonable excuse to say that a child aged 10 years refused to go on contact if the parent with the responsibility to encourage that contact meekly accedes to the child’s refusal.
In this case, it is clear that the mother did not take any positive step to encourage the child to go on contact with the father. I am satisfied that the mother has contravened the Order and has not shown a reasonable excuse for that contravention.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 5 February 2003
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