ADAM & TAN

[2019] FamCA 964

FAMILY COURT OF AUSTRALIA

ADAM & TAN [2019] FamCA 964

FAMILY LAW – ORDERS – Contravention – Where the respondent is found to have contravened the relevant order without reasonable excuse on two occasions – Where the applications for both contraventions were petty and unwarranted – Where the remaining counts of contravention are dismissed – Where no sanction is imposed – Where the order is not varied as proposed by the applicant – Where the applicant has been at least substantially unsuccessful and must pay the respondent’s costs of and incidental to the Contravention Applications fixed at $2,750.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Lenova & Lenova (Costs) [2011] FamCAFC 141

APPLICANT: Mr Adam

RESPONDENT: Ms Tan

FILE NUMBER: BRC 9801 of 2017

DATE DELIVERED: 13 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 6 December 2019

REPRESENTATION

FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Armstrong Legal

Order

1. The contraventions of paragraph 24 of the Order made 20 March 2019 alleged to have occurred on 5 May 2019, 2 June 2019, 9 June 2019 and 16 June 2019 be dismissed.

2. The contraventions of paragraph 25 of the Order made 20 March 2019 alleged to have occurred on 5 May 2019, 9 June 2019 and 16 June 2019 be dismissed.

the court having made the following findings

(a)       The respondent mother contravened paragraph 25 of the Order made 20 March 2019 without reasonable excuse by failing to fulfil her obligation to ensure the child X born … 2008 was available to receive communication from the father on 2 June 2019.

(b)       The respondent mother contravened paragraph 34(b) of the Order made 20 March 2019  without reasonable excuse by failing to provide the father with not less than 60 days’ notice of proposed travel from Country B on 19 April 2019.

It is further ordered that

1. No sanction against the mother be imposed.

2. The father contribute to the mother’s costs of and incidental to the Contravention Application filed 17 July 2019 and the Contravention Application filed 12 August 2019 fixed in the sum of $2,750 within 30 days.

3. The father’s application for costs be dismissed. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adam & Tan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9801 of 2017

Mr Adam

Applicant

And

Ms Tan

Respondent

REASONS FOR JUDGMENT

1. Mr Adam and Ms Tan are the parents of X aged 11. The mother and child live in Country B and the father lives in Australia. The child spends holiday time with the father and communicates with him via an ‘App’ called C on which he and the child can message each other in ‘real time’ and engage in an audio call or a video call. It is common ground that the father and child have a good relationship. 

2. On 20 March 2019, the parents agreed to the terms of a final parenting order (“the primary order”). The father now alleges that the mother has contravened that order without reasonable excuse. The mother denies that she has contravened the order or, if she has contravened the order, she says she had a reasonable excuse.

3. Before turning to consider the father’s Contravention Application filed 17 July 2019, I note that at the commencement of the hearing the father’s second Contravention Application filed 12 August 2019 was dismissed. The evidence relied upon by the father did not establish that the mother had contravened the order. Additionally, the contraventions alleged to have occurred on 21 April 2019 and 19 May 2019 contained in the Contravention Application filed 17 July 2019 were dismissed because the evidence relied upon by the father did not establish that the mother had contravened the order. The father conceded the dismissal of the alleged contravention on 19 May 2019.

4. During the hearing a number of concessions were made by the father.  Firstly, he has not always called the child on Sunday as he is permitted to do pursuant to the order. Secondly, when the child was visiting him in June/July 2019 she told him that the mother had not called her but when he checked the child’s phone he established that she was mistaken. Thirdly, the father informed the mother by email on 16 June 2019 that he had been unable to contact the child reliably for some time. Fourthly, since that time, the child has been calling the father on Sundays, although the father has not always been available to take the call.

What contraventions are alleged against the mother?

1. The allegations against the mother are as follows:

   a)That the mother contravened paragraph 34(b) of the order made 20 March 2019 in that on 19 April 2019 at 14.16 hours in Country B “the [mother] without reasonable excuse failed to meet the requirements to notify of international travel with the child which requires notice of no less than 60 days prior to the child’s departure. Child travelled to Country D with notice made only on the day of departure from Country B”;

   b)That the mother contravened paragraphs 24 and 25 of the order made 20 March 2019 in that on 5 May 2019 at 20:00 hours “the [mother] without reasonable excuse failed to facilitate required contact with Child”;

   c)That the mother contravened paragraphs 24 and 25 of the order made 20 March 2019 in that on 2 June 2019 at 20:00 hours “the [mother] without reasonable excuse failed to facilitate required contact with Child”;

   d)That the mother contravened paragraphs 24 and 25 of the order made 20 March 2019 in that on 9 June 2019 at 20:00 hours “the [mother] without reasonable excuse failed to facilitate required contact with Child”; and

   e)That the mother contravened paragraphs 24 and 25 of the order made 20 March 2019 in that on 16 June 2019 at 20:00 hours “the [mother] without reasonable excuse failed to facilitate required contact with Child”.

Parenting order made 20 March 2019

1. The relevant paragraphs of the primary order are as follows:

   24.      That the parties keep the other party informed of a mobile telephone number at which communication between the child and the other party will occur.

   25.      That during periods that the child is in the Mother’s care, the Father be at liberty to telephone/C the child between 7pm and 8pm (AEST) each Sunday and the Mother is to ensure the child is available to receive such communication.

   …

   34.      That each party be at liberty to remove the child from Country B for the purposes of a holiday on the following terms:-

   (a)      …

   (b)      That the travelling party provides to the other party, by email, no less than 60 days prior to the child’s departure, an itinerary which provides full details of the child’s flights and dates of travel;

   (c)      …

   (d)      …

Determining a contravention application that affects children

1. Before turning to consider the specific counts of alleged contravention, I note that an alleged contravention of an order that affects children is governed by Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”). There are three distinct questions to consider in determining such an application:

   a)Has an order been contravened within the meaning of s 70NAC?

   b)If so, does the respondent have a reasonable excuse within the meaning of s 70NAE? and

   c)What sanction or other order should be made, if any? (Subdivisions B, C, D, E or F).

2. An order is contravened if the person bound by the order has intentionally failed to comply with the order or has made no reasonable attempt to comply with the order (s 70NAC).

3. The onus of proof rests upon the applicant to establish that the respondent has contravened the order on the civil standard i.e. on the balance of probabilities (s 70NAF(1)) unless the sanction to be imposed is of a specified type (s 70NAF(3)) and, in such circumstances, the standard of proof is beyond reasonable doubt.

4. If it is found that the respondent has contravened the order then the respondent must establish that she had a reasonable excuse on the balance of probabilities (s 70NAE and s 70NAF(2)).

5. Depending upon the findings made and whether the contravention is dealt with under subdivision E (less serious contravention) or F (more serious contravention) of the Act, the Court has a range of options in terms of possible sanctions or orders. The imposition of a sanction or the making of an order is discretionary.

What evidence is relied upon to establish each contravention

Travel from Country B - 19 April 2019

1. It is common ground that the child travelled to Country D from Country B for the weekend commencing 19 April 2019 and that notice of the travel was provided to the father by email two hours prior to the proposed departure on 19 April 2019. It is also common ground that the mother obtained a visa for the child to travel to Country D on 2 April 2019.

2. On 19 April 2019 at 2.16pm the mother sent the father and email in which she said:

   Dear [Mr Adam]

   I seem to have overlooked letting you know where X will be this weekend. I do apologize as I thought I had done so already.

   I am taking X to a resort in E City and she will be staying at a hotel.

   @F Street, Suburb G from 19-22 April.

   She has her phone and will be available if you wish to contact her.

   Kind regards,

   [Ms Tan]

3. The father responded at 3.52pm:

   Noted. It’s a pity your attitude is not to stick to a deal agreed to in writing, and now you are already contravening the Orders.

   I expect a proper and facilitative answer to my questions about sorting out the binding child support orders by Tuesday. No lawyer signed up and authority in writing the below will be addressed accordingly.

4. The father, when cross-examined, said he did not object to the child’s travel but that he had raised specifically that the mother had not given him the required 60 days’ notice. His email does not raise the issue of insufficient notice specifically but does allege the mother is in contravention of the order. The father says that the purpose of notice is to involve him as much as possible with the activities of the child and enable the proposed travel to be a topic of conversation.

5. The mother says that at the time the order was made on 20 March 2019, this trip was already planned and she thought that the order applied to future travel. In any event, she says it was not possible to give 60 days’ notice given that only 29 days had passed since the date of the order. The father responds that if the required notice was not able to be given, the travel should not have occurred. He says that he did not know of the planned trip at the time of the March 2019 order, although he concedes there was mention of travel with the child to Country H for Easter. The evidence does not establish that the trip was planned prior to the primary order or that the father knew about it.

6. While it is true that the mother would not have been able to give 60 days’ notice of the trip, the ability to travel is conditional on notice being given in accordance with the order. Accordingly, if the required notice could not be given the travel should not have occurred. Nevertheless, I note that the travel was only for a weekend to a place relatively close to the child’s residence (it is common ground that the destination was a short ferry or train ride away). Notwithstanding the trivial nature of the contravention, the strict terms of the order have not been complied with and with some regret I must find that the mother contravened the order. I am unable to find that the mother had a reasonable excuse for contravening the order.

Sunday, 5 May 2019

1. While the father alleges a contravention of paragraph 24 of the primary order, there is no evidence of contravention of this paragraph.

2. In relation to the alleged contravention of paragraph 25 of the primary order, the father called the child via the C App on two occasions on 5 May 2019 at 7.17pm. The child did not answer his calls. The child did call the father at 9.19pm and her call was not answered and again at 9.45pm when she and the father spoke for 26.03 minutes.

3. The mother’s evidence in relation to each alleged contravention of paragraph 25 of the order is that, in compliance with the order, she ensures that the child is settled; that she is generally in her bedroom; that she has her phone charged and turned on; has the volume turned up on her phone; and she instructs the child to answer the call when it rings. She says that she usually sits with the child for a period but because of other commitments e.g. getting dinner, she is unable to sit with the child for the entire hour during which the father may call.

4. In relation to the specific contravention alleged on 5 May 2019, the mother points to the difference in the evidence appearing in exhibit 2 in relation to calls that are ‘cancelled’ as opposed to ‘call wasn’t answered’ and submits that on 5 May, the father can only establish that he made a call which was cancelled not that it was not answered. In any event, she says that she did all that was required of her to have the child available for the father’s call.

5. I accept the mother’s evidence that the child was available to receive the communication as required by the order. It follows that the father has failed to establish that the mother contravened the order as alleged.

Sunday, 2 June 2019

1. While the father alleges a contravention of paragraph 24 of the primary order, there is no evidence of contravention of this paragraph.

2. In relation to the alleged contravention of paragraph 25 of the primary order, the father says that on 2 June 2019 he called the child and his call was not answered. The mother says that on this date the child was at a birthday party but was home by 7.30pm (AEST).

3. Exhibit 2 establishes that the father called the child at 7.13pm and the call was ‘cancelled’. At 7.44pm the father received a message from the child saying as follows:

   Hey dad

   I’m at a baking workshop so I can’t answer u but u can call me if u want

4. Notwithstanding that there were still 16 minutes for the call to be received in the time frame provided for in the primary order, the father did not call the child as invited.

5. Contrary to the mother’s evidence that the child was at home by 7.30pm (AEST), exhibit 2 indicates that the child was not at home at the time of the father’s call but at a baking workshop. The mother did not explain this discrepancy. The child’s message to the father at 7.44pm indicates that the child could not answer the father when he called at 7.13pm. 

6. Although the father could have called the child as invited, and still within the time provided for in the primary order, I must find that on a strict reading of the primary order the mother has not ensured that the child was available to receive the father’s communication between 7.00pm and 8.00pm as required by the order.

7. Given the child’s age, the fact that the child told the mother that the father had not called does not provide a reasonable excuse for not making the child available as required.  

Sunday, 9 June 2019

1. While the father alleges a contravention of paragraph 24 of the primary order, there is no evidence of contravention of this paragraph.

2. In relation to the alleged contravention of paragraph 25 of the primary order, on 9 June 2019 the father made two calls at 7.27pm and then sent a message saying:

   X missed you yet again we do not have Wi-Fi after 540 your time[1]

   [1] It is common ground that 5.40pm would have been 7.40pm AEST.

3. The father nevertheless called again at 7.42pm. Exhibit 2 does not establish that the call was unanswered, only that a call was made by the father and cancelled. Unlike the evidence relied upon for the contravention on 2 June, the evidence falls short of establishing that the child was unavailable to receive the communication as required by paragraph 25 of the primary order. 

Sunday, 16 June 2019

1. While the father alleges a contravention of paragraph 24 of the primary order there is no evidence of contravention of this paragraph.

2. In relation to the alleged contravention of paragraph 25 of the primary order, exhibit 2 establishes that on 16 June 2019, the father called the child on three occasions at 7.25pm, 7.40pm and 7.54pm and the calls were cancelled. Exhibit 2 does not establish the length of the call before it was cancelled. Unlike other parts of exhibit 2, the evidence does not establish that the call went unanswered. In addition, the child messaged the father at 9.46pm and said:

   Hi Dad

   Sorry my phone didn’t ring

   Calling u now

3. Accordingly, the father has failed to establish that the mother has failed to ensure the child was available to receive the communication.

What sanction/order should be made?

1. Prior to reserving my decision, I received submissions on what sanction or order was appropriate depending upon the findings I might make. The father submitted that the mother should be fined but made no submission as to quantum. When it was pointed out to the father that a fine was not available for a first offence unless the contraventions were found to be ‘more serious’, the father submitted that such a finding should be made. The father, although being self-represented at the hearing, also submitted that his legal costs for seeking advice about the Contravention Applications should be paid by the mother. The quantum of those costs were said to be $4,400. The father also submitted that paragraphs 25, 34 and 34(b) should be varied but was unable to articulate what variations should be made during his submissions. Subsequent to the hearing, and at the invitation of the Court, the father’s email and attachments (being letters and invoices between the father and a solicitor) were forwarded to the Court by the mother’s solicitor and have been marked as an exhibit in the proceedings. 

2. The father submits a variation to the primary order as follows:

   25.      That during periods that the child is in the Mother’s care, the Father be at liberty to telephone/C the child between 7pm and 8pm (AEST) each Sunday and the Mother is to ensure the child is available to receive and that the Mother facilitates such communication.

   …

   34.      That each party be at liberty to remove the child from Country B for the purposes of a holiday on the following terms:-

   (a)      …

   (b)      That the travelling party provides to the other party, by email, no less than 60 days prior to the child’s departure, an itinerary which provides full details of the child’s flights (or other means of travel), address whilst outside Country B, and dates of travel;

3. The invoices from the father’s solicitor do not establish that the father incurred any costs in relation to the Contravention Applications.

4. The mother submitted that even if any of the contraventions are established, no sanction should be imposed against the mother or, if a sanction is imposed, it should only be for the mother to undertake a parenting program. The mother also submitted that the father should pay the mother’s costs of both Contravention Applications. As no schedule of costs was available, costs were sought in a sum agreed and failing agreement to be assessed. The mother opposes any variation to the primary order.

Conclusion

1. I have found that the mother contravened paragraph 34(b) of the primary order without reasonable excuse by failing to provide the required notice prior to travel. However, I do not intend to impose any sanction. As already noted, the travel was for one weekend to a place in relative proximity to the child’s residence. The application by the father was, in my view, petty and unwarranted.

1. I have found that the mother contravened paragraph 25 of the primary order without reasonable excuse on 2 June 2019 by failing to ensure the child was made available for the father’s communication. However, I do not intend to impose any sanction. The mother was told by the child that the father had not called her (although she was mistaken) and, upon becoming aware of the father’s difficulties with contacting the child, the mother has taken steps since 16 June 2019 to remedy the situation. The child now calls the father on Sundays. I note also that the father was invited by the child to call her again on 2 June 2019 within the allocated time frame but did not do so. In my view this application was also petty and unwarranted.

2. I do not propose to vary the primary order as requested by the father, or at all. The additional words sought to be added to paragraph 25 of the primary order are not necessary because paragraph 23 already requires the mother to facilitate the call. I see no need to make the other requested amendments relating to travel and information to be provided. As demonstrated in the mother’s email to the father dated 19 April 2019, she provided the father with relevant information.   

3. The father has been substantially unsuccessful. While two counts of contravention have been found in his favour I have not imposed any sanction or made any order. I have also dismissed the remaining counts of contravention alleged in his Contravention Application filed 17 July 2019 and dismissed his Contravention Application filed 12 August 2019.

4. The father also opposed the mother giving her evidence by electronic means, which required a separate hearing and the father’s objection was dismissed.

5. In circumstances where a contravention is alleged but not established, s 70NCB provides that an order may be made that the applicant pay some or all of the costs of the other party.

6. Additionally, where a contravention is established but no sanction or order is made, the Court may order the applicant to pay some or all of the costs of the respondent (s 70NEB (1)(g)).

7. I consider that an order for costs against the father is warranted in the circumstances of this case. As noted, the father has been at least substantially and arguably wholly unsuccessful in that not only were most of the alleged contraventions dismissed, the two that were established did not attract any sanction against the mother nor variation to the March 2019 order. I have found the father’s conduct in relation to the proceedings to have been petty and unwarranted.

8. Although the mother submitted that the costs should be agreed and only assessed if agreement is not reached, I hold little confidence that agreement will be reached. If costs are not fixed the mother will no doubt incur further costs which, given the history of this dispute, may well exceed the costs already incurred to date.

9. In setting a fixed sum I have had regard to the schedule of fees applicable for such proceedings as provided in the Family Law Rules 2004 on a standard basis. While I have no evidence before me in relation to each party’s financial circumstances, impecuniosity is of itself not a bar to a costs order.[2] Accordingly, I propose to order that the father contribute a fixed sum of $2,750 towards the mother’s costs.

   [2]Lenova & Lenova (Costs) [2011] FamCAFC 141.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 December 2019.

Associate:

Date:  13.12.19