Zorba and Kassem

[2008] FMCAfam 1510

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZORBA & KASSEM [2008] FMCAfam 1510

FAMILY LAW – Contravention of orders – reasonable excuse.

Applicant: MS ZORBA

Respondent: MR KASSEM

File Number: PAM 2196 of 2005

Judgment of: Halligan FM

Hearing date: 24 July 2008

Date of Last Submission: 24 July 2008

Delivered at: Parramatta

Delivered on: 24 July 2008

REPRESENTATION

Counsel for the Applicant: Mr Henness

Solicitors for the Respondent: Father In Person

ORDERS

1. Find that the father contravened parenting orders made by this court on 16 August 2007 without reasonable excuse on 19 August 2007, 16 September 2007 and 14 October 2007.

2. Stood over part heard before me at 10am on 19 March 2009 to determine what orders if any should be made consequent on the finding of contraventions against the father, estimated hearing time ½ day.

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

1. This is the hearing of the mother's application against the father alleging that on three occasions he has contravened parenting orders made in relation to the youngest of the parties' three children, [C]. 

2. The orders in question were made on 16 August 2007 by me after a defended hearing.  I note that those orders have been subject to an unsuccessful appeal by the father.

3. The contraventions that are alleged by the mother against the father are that the father contravened the orders by refusing to allow the mother to spend time with the child, [C], in accordance with those orders on three dates, 19 August 2007, 16 September 2007 and 14 October 2007.  The father has denied each of the three allegations.

4. The orders provide that [C] live with the father, that the parents have equal shared parental responsibility for him, and that [C] spend time with the mother each Sunday from 1.00 pm to 3.00 pm at [S] Shopping Centre, [M] for four Sundays commencing the first Sunday after the making of the orders in the absence of the mother's current husband, Mr Z, then each Sunday from 1.00 pm to 5.00 pm for four Sundays commencing on the fifth Sunday after the making of the orders in the absence of Mr Z.  It is these orders that are relevant. 

5. The orders go on and provide that the mother then spend time with the child each Sunday from 1.00 pm to 5.00 pm for four Sundays commencing on the ninth Sunday after the making of the orders with no requirement that the time be spent in the absence of Mr Z.  Then the mother is to spend time with [C] each Sunday from 9.00 am to 5.00 pm for four Sundays commencing on the thirteen Sunday after the making of the orders and thereafter from 9.00 am to 5.00 pm on both Saturday and Sunday of each alternate weekend commencing on the seventeenth Saturday after the making of the orders.  The child is also to spend time with the mother from 9.00 am to 5.00 pm on Mother's Day if the child is not otherwise spending time with her, for a period of at least two hours on the child's birthday and for a period of at least three hours each Christmas Day and each Easter Sunday.

6. The orders provide that the changeover occur at the [S] Shopping Centre unless otherwise agreed between the parents.  The mother's time with the child was suspended on Father's Day.

7. It is common ground that on the second of the dates that I am now concerned with under the alleged contraventions, the parties reached an agreement that thereafter changeovers would occur at [M] Police Station. 

8. The basic evidence is not in issue.  That is; that the father has taken the child to the appropriate changeover point on each of the three dates in question.  There is no issue in relation to the first relevant date,

   
   19 August 2007

   that the father delivered the child to the mother and the mother proceeded to move towards another area of the mall with the child. However, having done that, the father then intervened and the child left with the father.  The father suggests that the reason why he intervened was because the child was looking back to him and calling out to him and that as he perceived it; the mother had a firm grip of the boy and was dragging him along.  He said that he therefore intervened and told the mother that the boy did not want to go with her and he said that the mother then swore at him and he said:  "Well I'll call the police."  The police were called and they attended at the shopping centre and ultimately the boy left with the father and the mother left without the boy.

9. At that point, that is a clear breach of the Court orders by the father.  The only question can be whether or not the father had a reasonable excuse for doing so.  The father appeared unrepresented and although he did not clearly articulate it, I have to look to see whether on the evidence there may be some reasonable excuse.  I certainly did explain to the father very clearly that if he wished to raise a reasonable excuse it was for him to prove it, not for the mother to disprove it. 

10. The only matters that the father could point to would be his suggestion that he observed the boy looking around to him and calling out to him and saw what he described as the mother dragging the child.  I pause to observe that that fact is in dispute but I will assume that it is correct for present purposes.  The father should have immediately left the vicinity upon the boy passing into the care of the mother.  He should not have remained. 

11. The father's position was that this boy did not want to spend time with the mother.  The orders were nonetheless made.  The father therefore knew that he had a boy that he needed to persuade to spend time with his mother.  The father must do all that he reasonably can to ensure that the time that the Court ordered the boy spend for his own good with his mother in fact takes place. 

12. For that reason, as soon as the father had delivered the boy into the physical care of the mother as he successfully did, he should have immediately turned around and left.  He did not do so.  He stayed.  In those circumstances, if the boy had any reluctance at all, it is likely that the father's remaining was likely to elicit some degree of anxiety and heighten any reluctance in the boy.  And that is exactly what happened.  The father remained and not only remained but pursued the mother and the boy.  And at that point the arrangement fell apart.  The father took the child back and he breached the order.  I am satisfied he had no reasonable excuse for doing so.

13. On 16 September 2007, being the first occasion when the mother was not limited to spending her time at the mall with the boy; again the father delivered the child to the mother and the mother left the mall.  She was walking down the street between the mall and the car park when the father followed her and stopped her and took the boy - and I use the term advisedly.  I have seen the video which is in evidence.  And after a short discussion with the mother he turned away with the boy and left.  That again is a clear breach of the Court order. 

14. The only question can be whether the father has proven a reasonable excuse.  He said on this occasion that he erroneously believed that the mother was not entitled to leave the mall with the boy. Nonetheless he suggested that that was not the reason why he followed the mother.

    
    

    He said that whilst he was in the mall he noticed that somebody appeared to be videoing him. He said that that concerned him. But it is inexplicable that that could possibly have caused him to follow the mother. He said he left the mall and was crossing the street but then he espied the mother's red motor vehicle in the car park and in it saw Mr Z. At that point he said that he followed the mother and retrieved the boy.

15. At the point that the father retrieved the boy from the mother; the mother had not taken the child into contact with Mr Z. The father apparently made an assumption in relation to what he feared was going to happen; assuming of course that he did in fact see Mr Z.  That fact is in hot dispute.  But again, I need not determine that particular fact to find in this particular matter. Accepting what the father said for one moment to be the fact without so finding, I am not satisfied that it amounted to a reasonable excuse. 

16. The father's evidence of leaving the shopping centre the way he did and the reasons he advanced for following the mother and going across the road towards the car park is difficult to reconcile with his evidence that in fact when he retrieved the boy and was going back to his own car he went back where he had come from and proceeded to an entirely different place in the car park near the mall.  That means that although the father said that in going to the exit the mother and child left through he was leaving the vicinity, in fact he was not, he was following the mother.  And I am satisfied his own evidence proves that fact.  I am satisfied that he was following the mother before any opportunity arose for him to see Mr Z if in fact he did see him.

17. But accepting all that the father said and bearing in mind that the video is inconsistent with various aspects of the father's evidence, and even preferring the father's evidence over the unarguable vision contained in the video that I have seen, again, the father fails to prove any reasonable excuse.

18. I repeat, as I did in relation to the August contravention; the father would not be surprised at the boy having some reluctance to go with the mother.  The father's obligation was to do all that was within his power and to use all his powers of positive persuasion upon this boy, aged nine, who is in the father's day to day care, to ensure that something that is in the child's best interests in fact occurs.  Whether the father accepts it or not, the fact is that the Court has made a determination that it is in this boy's best interest that he spend the time with his mother. 

19. The situation can be equated to, for example, the boy being reluctant to go and spend time with other members of the father's family, or being reluctant to attend for appropriate childhood inoculations. It is for the father to persuade him to that course of action and to have it happen if in fact it is best for the boy. And the Court has found that spending this time with the mother is best for the boy, regardless of what the father says the boy wants to do. What the boy wants to do is not the point.  The boy is nine. The father's obligation is to have what the Court ordered occur.

20. So far as the father's suggestion that this boy is resisting going in ways that the father cannot overcome, I do not accept his evidence. Despite the father asserting that he has consistently sought to encourage the boy to go with the mother, the only evidence of the father having done so is all in terms of heavily emphasising the burden of compliance with the order and the punitive consequences that might flow to the father if the boy does not go. That is not what is required. What is required is positive encouragement. And to the extent to which the father suggested or witnesses in his case suggested that the boy expressed some concern about Mr Z, it was for the father to point out to the boy that certainly initially Mr Z was not to be present but otherwise the Court had found that Mr Z was not in fact a risk to the boy. This has been fully ventilated before the Court and the Court has made a finding.  Again, whether the father likes it or not, that is the finding and that is the order.  He will have to comply with it.

21. On this particular occasion I repeat; the father's following the mother with the boy instead of turning around and leaving in the opposite direction as he should have done, clearly interfered with the mother's time.  In then approaching the mother and taking hold of the boy when the mother was doing what she was entitled to do under the order, is the most blatant of contraventions of the Court order.  There is simply no evidence to indicate that the father had any colourable reasonable excuse for his actions. 

22. In relation to the third of the events, the 14 October, the evidence was that the father drove to the police station, which had by then become the changeover point, with [C] and with his then 17 year old older brother, [J], in the car in the back seat, [C] being in the front passenger seat.  The father said that when he arrived at the police station the boy would not get out of the car when the father asked him to.  The father said that on the car trip the boy had expressed reluctance to go and expressed, according to the father, a fear of both the mother and Mr Z or according to [J], a fear of the mother with Mr Z.

23. Of course on this occasion the orders did provide that the mother's time with the child was to be spent in Mr Z's absence. There is no indication that the father sought to reassure the boy in any way at all that under the order Mr Z would not be present and he had no need to fear. And that was what was required of the father to comply with the order on this occasion.

24. The father asked more than once in this hearing “what on earth was he to do”. He suggested that when he got to the police station on this occasion he went into the police station and virtually washed his hands of his obligation to pass the child to the mother and sought to fob that obligation off onto the police by inviting the police to come out and see if they could talk the boy into getting out of the car.  That was not an appropriate course.  It was the father's obligation to get the boy out of the car, not the police.  Further, the father's suggestion that he invited, through the police, the mother to talk to the boy and to get the boy out of the car, begs the issue.  And that is, that it was not for the mother to get the boy out of the father's car either.  It was for the father to get the boy out of the father's car.  And even though the father on this occasion had the older boy, [J], with him, he did not seek to enlist the assistance of [J] to achieve what he had to do. 

25. When I put this to the father during submissions he suggested that it would have been inappropriate, in essence, because it would have involved the older sibling in the conflict. But of course the older sibling was already involved in the conflict by the father bringing him to the changeover point in the first place. The reason why [J] was there, in any event, was not explained. He is now over 18 and gave evidence in the father's case. If [J] was not there to witness what went on or to assist the father in carrying the order into effect then I cannot understand why he was present. There may have been some other reason but it has not been explained.

26. But I put that issue aside. I simply note how far the evidence goes.  And the evidence indicates that the father did not get the boy out of his car and he did not seek the assistance of [J] to get the boy out. The father's evidence was that he tried and simply could not get the boy out.  He suggested that in the circumstances it would have required physical force upon the child to get him out of the car.  But of course the matter must be looked at in context.  It was in the context of the car trip to the changeover point when the boy expressed a concern that the father made no effort to reassure or assuage. 

27. In those circumstances, I am concerned that in fact what the father was doing here, consciously or not, was to set this arrangement up to fail.  Bringing the boy along without reassuring him, leaving him in the car out the front of the police station, and inviting others to do what the father himself was obliged to do, in my view, is setting something up to fail. I am not satisfied the father has demonstrated, on the evidence, sufficient justification for not being able to get the boy out of the car.

    
    

    I am not suggesting that it is appropriate for the father to physically abuse the child to comply with the order, but nor do I accept that it was necessary, on the evidence, for him to do so.

28. I am satisfied that there were other options and techniques that the father could have adopted but he did not do so. The father suggested of course that he had run out of options. He could not think of anything else to do. But there is no evidence that bearing in mind the problems that he had had on prior dates, he took any steps to seek any professional help in developing other more appropriate strategies to encourage the boy to go.  He simply kept on doing what he had been doing before - things which, according to him, had failed. 

29. In those circumstances the evidence clearly cannot establish a reasonable excuse for the father's failure to comply and I find all three contraventions proven on the father's own evidence without any reasonable excuse.

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate:  Deanne Bush

Date:  30 April 2009