Zorba and Kassem - [2009] FMCAfam 368

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZORBA & KASSEM

[2009] FMCAfam 368

FAMILY LAW – Contravention of orders.

Applicant:

MS ZORBA

Respondent:

MR KASSEM

File Number:

PAM 2196 of 2005

Judgment of:

Halligan FM

Hearing date:

3 April 2009

Date of Last Submission:

3 April 2009

Delivered at:

Parramatta

Delivered on:

3 April 2009

REPRESENTATION

Counsel for the Applicant:

Mr Rich

Counsel for the Respondent:

Mr Hanrahan

Solicitors for the Respondent:

Bond Lawyers

ORDERS

The mother’s contravention application file 23 October 2008 is dismissed.
The matter is listed for final hearing at 10am on 14 August 2009 in relation to the part heard contravention proceedings. Estimated hearing time 1hr.
The mother shall file and serve affidavit evidence in support of her parenting application not less than 6 weeks prior to the adjourned date.
The father shall file and serve his response and affidavit evidence not less than 2 weeks prior to the adjourned date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2196 of 2005

MS ZORBA

Applicant

And

MR KASSEM

Respondent

REASONS FOR JUDGMENT

This is the hearing of the mother's application alleging that the father on 9 August 2008 contravened parenting orders that were made in these proceedings on 16 August 2007 by not making the child, [C], the youngest of the parties' three children, available to her for spending time in accordance with the orders. The father denies the allegation.
I have set out the orders allegedly contravened in some detail in reasons for decision delivered on an earlier contravention application by the mother against the father and will not repeat that detail now.
In relation to the current contravention application, the father delivered the child to the mother at [M] police station, the agreed changeover point, at the due date and time under the orders and left. The mother then sought to leave with the child and the boy ran away, leaving in the opposite direction to the father. There is no suggestion that the father was in any way complicit in the boy running away. There is no suggestion that he was privy to any plan by the boy to run away and there is no suggestion that he was involved in making any plans for the boy to run away.
Ultimately the boy was found by a male family acquaintance who recognised him. The boy was found distressed in a street in [M]. The boy was taken to this gentleman's home. He eventually succeeded in contacting the father who by then had returned to the police station after being contacted by the police and being advised that his son was missing. At the request of the police, this gentleman returned the boy to the [M] Police Station. Thereafter the child spoke to the mother in a room at the police station in the presence of a police officer. The mother said that the boy was reluctant to go with her. She said that the boy eventually reluctantly agreed to go with her and they commenced to leave the premises.
The mother said that the father was present outside the entrance to the police station and was loudly remonstrating with the police. She said that when she got to the front of the premises the boy grabbed hold of the railing and would not let go. It seems that nobody was able to persuade the boy to let go except the father when he invited the child to leave with him. The boy then left with the father.
The mother contends that the father's conduct on this latter occasion, not when he first successfully delivered the child to the mother, was the source of the problem and amounts to a contravention of the orders. Certainly the father's obligations under the order are not exhausted simply upon him delivering the child to the mother. If the child subsequently comes into his care during time the child is due to spend with the mother, he has an obligation to do all that he reasonably can to ensure that the child returns to the mother's care if that is where the child should be under the orders at that time.
The evidence of the gentlemen who found the child was that when he returned the child to the police station he first saw the father. The boy immediately went to his father and I am therefore prepared to proceed upon the basis, though it may be subject to some controversy, that at that stage the child was effectively in the control or care of the father.
From there, as I understand it, the criticisms of the father are that he failed to comply with requests made of him more than once by the police to leave; the police forming the view, it is suggested, that the father's presence was making the task of convincing the boy to go with his mother more difficult. The father is criticised for not leaving in accordance with the request of the police. It is said that the police - and this is correct - were independent people present at the time. They were not infected by subjective involvement in the proceedings as each of the parents were, or for that matter, as each of the elder two siblings who the father had with him and who are ill-disposed to the mother were.
But it is not to say that therefore the police's view is unarguably correct. It was conceded in submissions on behalf of the mother that bearing in mind the boy ran away when first delivered to her, that the prospect of the boy running away again was foreseeable, though not inevitable, on the second occasion. The father in fact said that the risk of the boy running away again was the reason he remained. He was concerned, he said, to make sure that before he left, the boy was securely in the mother's care and that as best he could determine it, at least at the police station, there was not a risk of the boy running away again.
For a boy of this age, nine, running away on his own is clearly something that exposes him to risk. I do not understand there is any argument about that. For neither of the parents to know where the boy is, where he has run off in a busy shopping centre, is clearly a problem for the boy's welfare. To suggest that the father had no legitimate concern for the child at that stage, in my view, is simply unsustainable. At that point the father had ample reason for grave concern for the child's welfare and in my view, his remaining to ensure that the boy's welfare was not endangered as it had been earlier that morning was entirely appropriate.
Certainly there have been problems with the father's behaviour at changeovers under these orders in the past but that cannot inform the decision on this occasion. I am certainly prepared to proceed upon the basis that on the evidence that I have heard in the current contravention application, on the hearing of the proceedings that resulted in the current parenting orders, and in another contravention application where I have found the father has on three occasions breached these self-same orders in 2007, that there are significant difficulties in relation to the relationships between the parents and in having these orders carried into effect. But those problems cannot overwhelm the evidence of what actually occurred on this particular occasion. It is this occasion I am concerned with and on which I must rule.
On this occasion it was foreseeable, as was conceded in submissions on behalf of the mother that the boy would run away again. It was therefore foreseeable that this child's welfare may have been placed at fundamental risk. It was quite reasonable therefore, I am satisfied, for the father to remain until he was satisfied, as best he could, that the child was at least safely in the mother's care, not that that would necessarily preclude the boy running away from the mother's home when she got home, or jumping out of the car when she stopped on the next occasion, for example, at traffic lights in the middle of a busy street. It certainly did not remove all the risks to the boy.
But so far as criticism of the father remaining on this occasion, I am satisfied that he was entirely justified in doing so and what he did cannot be categorised as a breach of the orders.
The mother said that the father was remonstrating with the police and making statements to the effect that under no circumstances would he let the child leave with the mother. The father denies making such statements. There would have been witnesses that the mother could have called to bolster her contention in relation to these matters. There were two police officers immediately involved in attempting to have the boy go with the mother on the second occasion. Neither was called as witnesses in the mother's case. There is no explanation why.
One might expect that there would be records made by the police of their involvement in this matter, as extensive as it was and as troublesome as it was on this occasion. No such records have been placed in evidence before me. No explanation has been given why not.
But even putting those matters aside, which do go to the issue of whether the Court should be persuaded to the mother’s version of events, I cannot be satisfied that it is more likely than not that the mother is telling the truth and the father is not.
In those circumstances, the mother has failed to prove, on the balance of probabilities, but to the level of satisfaction required in a matter of this seriousness, that the father said what she asserts the father was saying on this occasion. Therefore her application fails.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 30 April 2009