COURT DETERMINES WHETHER THE FATHER SUFFICIENTLY PROVED THAT THE MOTHER DID CONTRAVENE THE COURT ORDERS
Habbal & Jamar [2021] FCCA 486 (17 March 2021)
This is an application intervention filed by the father against the mother where the latter alleged that she used her best endeavors to facilitate telephone communications between the children and their father and a determination whether the mother discussed family court proceedings and marital issues with the children which is a contravention to the court order.
Facts:
On 13 May 2020, the Court made final parenting orders in respect of the parties’ two children, X born in 2012 and Y born in 2014. On 8 September 2020, just under 5 months after the making of final orders, the father filed an Application-Contravention.
The father alleges that the mother:
(1) did not use her best endeavors to facilitate the children communicating with the father;
(2) failed to provide to the father the children’s “iTunes account” thus failing to use her best endeavors to facilitate the children communicating with the father using electronic communication using their own electronic devices; and
(3) discussed the Family Court proceedings or the parties’ marital issues with the children, all being said to be in breach of the final orders.
As to the first and second allegation, the mother’s affidavit sets out the details of her usual attempts at encouraging the children to speak to the father and in general what happens when the father calls to speak to the children. She speaks to reminding the children each evening that they need to communicate with their father, ensuring that the children’s daily routine is completed so that they are available to communicate with the father at the scheduled time and ensuring that the children’s relevant devices are available and sufficiently charged in order for that communication to occur.
The mother then requested that if the father proposed to provide the children with personal devices and accounts “namely an iPad and iTunes account” that he can use to contact the children whilst they are with the mother, that due to her privacy concerns, he provides the mother with the requisite funds and she would then purchase those devices.
As to the last charge, the father alleged that whilst the children were spending time with the father, the mother spoke to them, and that part of the conversation between X and the mother occurred whilst the phone was off loudspeaker and which the father could not hear. During that same phone call, the mother had a conversation with the father and offered to pick the children up.
Issue: Did the mother contravene with the court orders?
Law:
- Evidence Act 1995 S.140
- Family Law Act 1975 SS.70NAA, 70NAF, 70NAC
Analysis:
The father, who has the onus, was not able to say, except in a very general way, that he telephoned the children on those particular days but that they did not answer. Even with the mother’s evidence as to her usual practice of not answering telephone calls from the father at the scheduled time, but rather asking the children to do so, the evidence is insufficient to prove on the balance of probabilities, that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order as alleged.
There is evidence that the children have their own iPads at the father’s home and that the mother does not permit them to bring these devices to her home, it appears due to similar privacy and safety concerns. The father, who has the onus, provides no evidence of his own attempts to facilitate communications using electronic devices or of the children not being able to do so. His evidence is limited to requests made by the mother for the children’s iTunes account details (which the children do not have). The evidence in the father’s case is grossly insufficient to prove, on the balance of probabilities, that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order as alleged.
As to the last charge, the evidence is again, grossly insufficient to prove, on the balance of probabilities, that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order as alleged.
Conclusion: The court orders that the application be dismissed.