ALCOCK & SWEENEY
[2015] FCCA 3190
•4 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALCOCK & SWEENEY | [2015] FCCA 3190 |
| Catchwords: PRACTICE AND PROCEDURE – Procedural fairness – where one party not legally represented. PRACTICE AND PROCEDURE – Annexures to affidavits – annexures must be paginated and marked in alphabetical order. PRACTICE AND PROCEDURE – Use of the term “The Honourable” – Judges of the Federal Circuit Court are not to be referred to as “the Honourable”. |
| Legislation: Family Law Act 1975, ss.70NAC, 70NAE,70NAF, 70NEA, 70NEB, 70NEC Federal Circuit Court of Australia Act 1999 (Cth), Sch.1, Part 1 |
| Cases cited: Caballes & Tallant [2014] FamCAFC 112; (2014) FLC 93-596; (2015) 52 Fam LR 125 Hayes & Stapleton [2015] FCCA 1948 In the Marriage of O’Brien (1992) 16 Fam LR 723; FLC 92-396 SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 |
| Applicant: | MR ALCOCK |
| Respondent: | MS SWEENEY |
| File Number: | SYC 6437 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 25 November 2015 |
| Date of Last Submission: | 25 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms McIntosh (direct brief) |
| Respondent: | In person |
ORDERS
The Applicant Father has established a prima facie case that the Respondent mother has contravened Order 3 made by consent on 26 June 2014 on the following dates as set out in Counts 1, 3, 4, 5 and 6 of the Application-Contravention filed on 23 September 2015:
(a)25 December 2014;
(b)21 February 2015;
(c)16 May 2015;
(d)2 July 2015; and
(e)23 July 2015.
Count 2 of the Application-Contravention filed by the Father on 23 September 2015 is dismissed.
The Father did on 7 June 2015 contravene Order 3 made on 26 June 2014 in that he did not deliver or return the child X to the Mother at the conclusion of the time specified by the said Order.
The Mother has established a prima facie case that the Father has contravened Order 3 made by consent on 26 June 2014 on the following dates as set out in Counts 2 and 3 of the Application-Contravention filed on 9 November 2015 on the following dates:
(a)19 October 2014; and
(b)15 March 2015.
Count 4 of the Application –Contravention filed by the Mother on 9 November 2015 is struck out.
The parties are each granted leave to file and serve a further affidavit setting out the facts upon which they seek to rely in support of any defence that they wish to establish or any contention that they wish to make that they had a reasonable excuse for all or any of the above contraventions within fourteen (14) days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Alcock & Sweeney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 6437 of 2013
| MR ALCOCK |
Applicant
And
| MS SWEENEY |
Respondent
REASONS FOR JUDGMENT
Application
There are two Applications by the parents of a boy called X, each claiming that the other has contravened interim parenting orders made by consent on 26th June 2014. The Applications have been heard together.
The first Application was filed by the Father on 23rd September 2015. In that Application he claims that the Mother has, on no fewer than six occasions, contravened Order 3 made by this Court on 26th June 2014. The Mother has denied all six allegations.
A short summary of the Father’s case is that between 25th December 2014 and 23rd July 2015, the Mother without reasonable excuse did not deliver the child to him or do anything to facilitate the child spending time with him in accordance with the Order.
The second Application was filed by the Mother on 9th November 2015. In her Application the Mother claims that the Father has contravened that same Order on four separate occasions. The Father admitted the first of the four allegations but claimed that he had a reasonable excuse for contravening the order. He denied the other three allegations.
It was conceded by the Mother at the hearing that the fourth count in her Application was defective in its drafting so that the Court had no alternative but to strike it out.
A short summary of the Mother’s case is that between 19th October 2014 and 7th June 2015, the Father either did not return the child to the care of the Mother or took the child away from the care of the Mother at a time that was not provided by the Order as a time when the child was to spend time with the Father.
Law and Procedure
The meaning of the word “contravened” in the sense of contravening a court order is defined in s.70NAC of the Family Law Act 1975 (Cth), which says, relevantly:
A person is taken for the purposes of this Division to have contravened an order under this Act affection 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.
The standard of proof to be applied in determining whether a person has contravened an order is proof on the balance of probabilities (s.70NAF(1)).
If the Court is satisfied that a person has contravened an order, that person may still establish that he or she had a reasonable excuse for the contravention (s.70NEA(1)(c)). Again, the standard of proof to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities (s.70NAF(2)).
The procedure at a hearing of such an application is set out in Rule 25B.04:
At the hearing of the application, the Court must:
(a) inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e) determine the proceeding.
It is important for a Court to follow this procedure and inadvisable to depart from it, especially where one or both of the parties does not have the benefit of legal representation. This issue was discussed by the Full Court of the Family Court in Caballes & Tallant[1], where Strickland J held at [17]:
…applications such as these are common, and given their quasi-criminal nature, I consider it important that the process in hearing and determining them be applied appropriately and transparently, and particularly where neither party has legal representation. Shortcuts should not be taken, and where orders are alleged to be contravened within the meaning of s 70NAC of the Act, that needs to be addressed by affording each party procedural fairness.[2]
[1] [2014] FamCAFC 112; (2014) FLC 93-596; (2015) 52 Fam LR 125;
[2] [2014] FamCAFC 112 at [17]; (2014) FLC 93-596 at 79,370 [17]; (2015) 52 Fam LR 125 at 129 [17]
The Hearing
The Father was represented by counsel on a direct brief. The Mother appeared for herself. The Mother sought an adjournment until the final hearing of the parenting proceedings, scheduled for 4th and 5th April 2016. This was not granted. Contravention proceedings must by their very nature be given priority and should be dealt with as soon as is reasonably practicable.
The allegations in the Father’s Application were put to the Mother individually. She informed the Court that she either denied them all or that some allegations did not constitute a contravention of the Order. They were all recorded as denials.
The allegations in the Mother’s Application were put to the Father. His Counsel, Ms McIntosh, told the Court that her instructions were to admit the allegation in the first count but with a reasonable excuse and to deny the other three. Ms McIntosh raised the issue that the fourth count was defective in its drafting and the Mother conceded that the defect could not be remedied. This count was struck out as defective.
The Father relied on his affidavits of 19th July and 11th September 2015 in respect of the contravention Application and a further affidavit of 16th November 2015 which essentially goes towards his assertion of a reasonable excuse. It was discussed with the Father’s counsel whether there was any prejudice to the Father in his being cross-examined on his evidence towards establishing the contraventions in his Application at the same time as his cross-examination on the contents of his evidence going to a reasonable excuse in respect of the Mother’s Application. Counsel for the Father took instructions and subsequently told the Court that her client consented to all his cross-examination taking place at the one time.
The Mother relied on her affidavit of 1st November 2015.
Each party prepared a Case Outline Document.
The Applications
As there are two Applications, I will consider them in order, commencing with the Father’s Application, which is the earlier of the two.
The Application filed on 23 September 2015
In his Application, the Father sets out his allegations in six separate counts. They all relate to an interim parenting Order made by consent on 26th June 2014 that says:
3. The child X born (omitted) 2009 is to spend time with his father in week one, on Saturday for six hours, and in week 2, from 7:30 am on Saturday to 9.00 am on Sunday, and overnight each Thursday, unless otherwise agreed between the parties.
There were no other parenting orders made on that occasion. All the other orders are procedural. Presumably, the references to “week one” and “week 2” refer to the first and second weeks of a fortnightly cycle, commencing the following Monday, 30 June 2014.
All of the contraventions alleged are said to have occurred at the (omitted) Shopping Centre in Sydney.
Count 1 claims that at 3:30 pm on Christmas Day 25th December 2014 at 3:30pm the mother without reasonable excuse did not deliver the child X to the Applicant Father on Christmas Day nor did the Mother do anything to facilitate the child to spend time with the Father “pursuant to Court Orders”.
Count 2 appears to contain two separate allegations, although I made it clear to the parties that the contravention alleged was clearly contained within the first allegation and the second allegation was no more than a further particular of the allegation.
Count 2 claims that at 3:30pm on 1st January 2015:
The respondent without reasonable excuse or permission did not deliver the child X to the Applicant Father nor did the Mother do anything to facilitate the child to spend time with the Father pursuant to Court Orders.
The Respondent Mother without reasonable excuse or permission removed the child from the Sydney Metropolitan area during the time the Father was to spend with the child (Father did not see child on 1/1/2015 and 3/1/2015).
Clearly, the contravention alleged is in the first sentence of the count. Order 3 does not contain any prohibition on the child being removed from the Sydney Metropolitan area.
Count 3 claims that at 7:30 am on 21st February 2015:
The respondent without reasonable excuse or permission did not deliver the child X to the Applicant Father nor did the Mother do anything to facilitate the child to spend time with the Father pursuant to Court Orders. The Respondent Mother without reasonable excuse or permission removed the child from the Sydney Metropolitan area during the time the Father was to spend with the child.
The same comments apply in respect of this count.
Count 4 claims that at 7:30 am on 16th May 2015:
The respondent without reasonable excuse or permission did not deliver the child X to the Applicant Father nor did the Mother do anything to facilitate the child to spend time with the Father pursuant to Court Orders.
Count 5 claims that at 3:30 pm on 2nd July 2015:
The respondent without reasonable excuse or permission did not deliver the child X to the Applicant Father nor did the Mother do anything to facilitate the child to spend time with the Father pursuant to Court Orders. The Respondent Mother without reasonable excuse or permission removed the child from the Sydney Metropolitan area until 24 July 2015 during the time the Father was to spend time with the child.
Again, there is no prohibition or restriction in the Order relating to taking the child out of the Sydney Metropolitan area.
Count 6 claims that at 3:30 pm on 23rd July 2015:
The respondent without reasonable excuse or permission did not deliver the child X to the Applicant Father nor did the Mother do anything to facilitate the child to spend time with the Father pursuant to Court Orders. The Respondent Mother without reasonable excuse or permission removed the child from the Sydney Metropolitan area during the time the Father was to spend with the child (from 2 July 2015 until 24 July 2015).
Most of the evidence in support of the six counts in the Application can be found in the Father’s affidavit of 19th July 2015.
The evidence in support of Count 1, claiming that the Mother did not permit the child to spend time with the Father on Christmas Day 2014, is to be found at paragraphs 43 and 44 of the Father’s affidavit of 19th July 2015, along with annexures “G” and “H” of the affidavit.
The Father prepared his own affidavit. For some inexplicable reason, he has chosen to annex documents to his affidavit in this order – 1, O, P, Q, R, S, T, U, A, B and C (together), D, E, F, G, H, I and J (together), K and L (together), M and N (together), N.
The annexures are not paginated.
The Federal Circuit Court Rules 2001 at Rule 15.28 set out the way that documents are to be annexed to an affidavit. Sub-rules (3) and (4) provide:
(3) An annexure must:
(a) be paginated; and
(b)bear a statement signed by the person before whom the affidavit is made identifying it as the particular annexure mentioned in the affidavit.
(4)If there is more than 1 annexure, the pagination must be consecutive until the last page of the annexures and identified by page number in the affidavit.
Example:
For an affidavit with 10 annexures totalling 100 pages, the first page of the first annexure is page 1 and the last page of the last annexure is page 100. An annexure would be identified in the affidavit in the following way: Annexed and marked with the letter G (pages 72-81) is a copy of the agreement for sale’.
It should be obvious that annexures should be marked in alphabetical order. The alphabet normally in use in this country commences with the letter “A”.
The Father deposes at paragraph 43 that the Mother’s then solicitors sent his then solicitors a letter proposing that:
a)The Father would spend time with the child from 3:30pm on Christmas Day until 3:30pm on 27th December;
b)The additional time would be “an exchange for the afternoon of January 1 and overnight January 1”;
c)The Mother and the child would be away between 2nd January and 5th January 2015;
d)The time missed out on 3rd January would be made up on Friday 9th January;
e)The Father would collect the child from (omitted) college at 3:30pm on 8th January and the child would remain in his care until 3:30pm on 10th January.[3]
[3] Letter dated 16 December 2014 from Moylan Family Lawyers to Marsdens Law Group forming Annexure “G” to affidavit of Mr Alcock 19.7.2015
The Father deposed at paragraph 44 that he attended at the changeover location at (omitted) Shopping Centre at 3:30pm on Christmas Day but the Mother did not attend with the child. The Father annexed to his affidavit an email chain where he inquired of the Mother why she had not attended with the child and received the reply:
Stop playing games Mr Alcock You did not provide evidence of the transfer as requested, neither have you agreed to the telephone communication, neither have you indicted what time we are changed to re today and your birthday. This is your own doing Mr Alcock.[4]
[4] Annexure “H” to affidavit of Mr Alcock 19.7.2015
At paragraph 45 of his affidavit, the Father deposes in respect of Count 2, an allegation that the Mother did not make the child available on 1st January 2015, that the Mother did not deliver the child to him for his time with the child on 1st and 3rd January 2015.
Count 3 refers to the Father’s claim that the Mother contravened the Order on 21st February 2015. The Father’s evidence at paragraphs 47 and 48 of his affidavit is that the Mother sent him an email on 20th February 2015 saying that she needed to go to Melbourne urgently because her mother was ill. The child did not spend time with the Father on 21st February 2015.
Count 4 contains the Father’s claim that the Mother did not make the child available to him at 7:30am on 16th May 2015. The evidence in support of that claim is set out in paragraphs 52 and 53 of the Father’s affidavit. He deposes that the Mother sent him a number of text messages on 15th May 2015 saying that if he did not send her proof that he had put the child on his health insurance policy he would not be spending time with the child. He deposes that the Mother did not make the child available on Saturday 16th May 2015.
Counts 5 and 6 relate to the Father’s claim that the Mother did not make the child available on 2nd July and 23rd July 2015. The Father deposed at paragraphs 16 to 18 of his affidavit that the Mother sent him an email saying that she intended to take the child away on holidays from Thursday 2nd July to Friday 24th July 2015. A printout of the email forms Annexure “O” to the affidavit. The email says:
The days missed will therefore be:
Thursday 2nd July overnight
Saturday 4th July day/overnight
Thursday 9th July overnight
Saturday 11th July daytime
Thursday 16th July overnight
Saturday 18th July overnight
Thursday 23rd July overnight.[5]
[5] Affidavit of Mr Alcock 19.7.2015 Annexure “O”
The email went on to set out to offer various dates for make-up time.
It is the Father’s evidence that he did not consent to these arrangements.
What must be established is whether the Father has made out a prima facie case in respect of these allegations, that is, a case which the Mother should be called on to answer.
The evidence is replete with communications between the parties and the parties’ solicitors about specific arrangements and allegations that the Mother resiled from these arrangements. However, in order to establish that the Mother has contravened the Order, it must be shown that the Father was due to spend time with the child on that particular day in accordance with the Order.
It already appears clear that the interim consent Order made on 26th June 2014 is inadequate for parties who appear from the evidence to be in high conflict. The Order does not deal with holiday arrangements or special occasions such as Christmas or (omitted).
What the Order provides is that the child will spend time with the Father:
a)For a period of six hours on the first and third Saturdays of each month;
b)From 7:30am on Saturday to 9:00am on Sunday of the second and fourth weekends of each month; and
c)Each Thursday night.
These arrangements all bear the condition “unless otherwise agreed between the parties”.
The Mother, in her written Case Outline, submits that the Counts are so fundamentally defective that they could not succeed, for the following reasons:
a)They are imprecise and lacking in requisite particulars;
b)They misconceive the orders;
c)The relevant order imposes no obligation upon the mother to deliver the child to the father at the (omitted) Shopping Centre or anywhere else; and
d)The affidavit evidence in support is inadequate.
In my view, the argument that the Order imposes no obligation on the mother to deliver the child to the Father for the purpose of his spending time with the child should be rejected. Parties have a positive obligation to comply with orders to the effect that the child should spend time with the other parent (In the Marriage of O’Brien[6]).
[6] (1992) 16 Fam LR 723; FLC 92-396
What has to be shown in respect of each count is that the Father did not spend time with the child:
a)at a time specifically provided by the Order; or
b)at another time to which the parties had agreed.
As to Count 1, Christmas Day 2014 fell on a Thursday. The evidence is that the parties, through the Mother’s solicitor, had agreed that the child would spend time with the Father on Christmas Day but, whether or not there was an agreement, the Order provided for the child to spend time with the Father “overnight each Thursday”. The Father’s evidence is that this did not happen.
The Father has established a prima facie case of a contravention in respect of Count 1.
As to Count 2, New Year’s Day, 1st January 2015, was also a Thursday. The evidence suggests that there was an agreement that the child would spend Boxing Day and most of 27th December 2014 with the Father to make up for 1st and 3rd January 2015. The Father deposes:
Ms Sweeney did offer me makeup time which I took.[7]
[7] Affidavit of Mr Alcock 19.7.2015 at [45]
I am satisfied that there is evidence of an agreement about this time, s provided by the Order, which says “unless otherwise agreed between the parties”.
The Father has not made out a prima facie case in respect of this count and it will be dismissed.
Count 3 relates to Saturday 21st February 2015. The Father’s evidence is that this arrangement was cancelled by the Mother unilaterally the day before and he did not agree. As he said:
I was not given an option.[8]
[8] Ibid at [47]
The Father has made out a prima facie case that the Mother contravened the Order.
Count 4 relates to Saturday 16th May 2015. The Father’s evidence is that the child was not made available on that day and he did not consent to this arrangement.
The Father has made out a prima facie case that the Mother contravened the Order on 16th May 2015.
Counts 5 and 6 relate to a period of time between 2nd July and 23rd July 2015 inclusive. The Father claims a contravention of the Order on both of those dates. His evidence is that the Mother unilaterally cancelled those arrangements but that he did not agree.
The Father has made out a prima facie case of a contravention of the Order on 2nd July and 23rd July 2015.
It is, however, open to the Mother to lead evidence that:
a)She did not, in fact contravene the Orders; or
b)If she did contravene the Order, she had a reasonable excuse for doing so.
In the long run, the Court must be satisfied on the balance of probabilities that the Mother contravened the order on those five occasions as alleged without a reasonable excuse.
The Application filed on 9 November 2015
In her Application-Contravention filed on 9th November 2015, the Mother originally alleged four separate contraventions but, as mentioned at [5] above, Count 4 was struck out as defective.
The Father has admitted the allegation contained in Count 1 but claims that he had a reasonable excuse for doing so. That assertion will be dealt with on the next occasion, when the Court will consider any other claims of reasonable excuse.
Count 1 claims that on 8:00am on 7th June 2015 at (omitted) Shopping Centre:
The Father without [9]reasonable excuse or permission did not deliver the child X to the Mother nor did the Father do anything to facilitate the child to spend time with the Mother pursuant to Court Orders. The Father without reasonable excuse removed the child from the Sydney Metropolitan area during the time the Mother was to spend time with the child.
Again, the alleged contravention is set out in the first sentence. There is no prohibition in Order 3 on taking the child out of the Sydney Metropolitan area.
The Father denies Counts 2 and 3.
Count 2 is rather problematic in its wording. It alleges a contravention by the Father at 9:00am on 19th October 2014 at (omitted) in that:
The Respondent Father did on 19 October 2014 without reasonable excuse contravene the above order by taking the child X away from the Applicant Mother to spend time with the child at a time that was not provided by the said Order as a time when the child X was to spend time with the Father (Sunday mornings until 15/3/2015).
Count 3 is similar, in that it alleges a contravention by the Father at 9:00am on 15th March 2015 at (omitted) in that:
The Respondent Father did on 15 March 2015 without reasonable excuse contravene the above Order by taking the child X away from the Applicant Mother to spend time with the child at a time that was not provided by the said Order as a time when the child was to spend time with the Father (Sunday mornings from 19/10/2015[10] ).
[10] sic
The evidence in support of these two Counts is contained in paragraphs 17 to 21 of the Mother’s affidavit of 1st November 2015. Her evidence is that X commenced as a member of the (hobby omitted) program at (omitted) on 19th October 2014. The Mother is the (hobby omitted) for the child’s age group.
The Mother deposes that on each Sunday the Father has been attending (hobby omitted) and participating in the activities with the child, not only making it uncomfortable for the child’s half-sister A, who also attends, but taking the child away from the Mother at the conclusion of the (hobby omitted) program for the morning. The Mother deposes:
Mr Alcock’s behaviour during (hobby omitted) prevents both A and me from spending substantial and significant time on a weekend with X.
Counsel for the Father, Ms McIntosh, queried in her submission whether the Father’s actions in seeking to spend time with the child on an occasion that is not a specific time when the child is to spend time with him is in fact a contravention of the Order at all. The Order does not impose a prohibition on the Father spending time with the child on other occasions.
Ms McIntosh referred the Court to the decision in Hayes & Stapleton[11] and submitted that the actions of the Father alleged by the Mother could not, taking the evidence at its highest, establish a contravention of the Order.
[11] [2015] FCCA 1948
The Order does not contain any restraint or prohibition on the Father spending time with the child at any other time. Spending time with the child must involve something more than being present at the same venue as the child.
In this case, however, the Mother’s evidence is that the Father has taken the child away from the Mother at the conclusion of the (hobby omitted) program. As I held in Hayes & Stapleton at [36]:
It appears clear that if the Respondent were to spend time with either or both of the children outside the times specified by the Order, it would only constitute a contravention if that time were to hinder or prevent the children from living with or spending time with the Applicant.[12]
[12] [2015] FCCA 1948 at [36]
That is, in fact what the Mother is claiming in her evidence. I am of a view that the Mother has made out a case to answer against the Father in respect of Counts 2 and 3.
There is, however, a concern in respect of Count 2, which alleges a contravention of the Order said to have taken place on 19th October 2014, more than a year before the mother filed her Application on 9th November 2015. There is no explanation for the delay in seeking relief.
In Hayes & Stapleton at [82]-[88] I considered the question of exercising the Court’s discretion to refuse relief if there has been an unwarrantable and unexplained delay in seeking relief. Whilst I am satisfied that there is evidence of a contravention such as to constitute a prima facie case, the question of the consequences of delay in seeking relief can be argued on the next occasion if it is established that the Father contravened the order without reasonable excuse.
There is no such delay in Count 3, which refers to a contravention said to have taken place on 15th March 2015.
Reasonable Excuse for the Contraventions
Subsection 70NEA(1) of the Family Law Act 1975 provides that Subdivision E of Division 13A applies if:
a)A primary order has been made;
b)A court having jurisdiction under the Act is satisfied that a person (i.e. the Respondent) has committed a contravention of the primary order;
c)The person does not prove that he or she had a reasonable excuse for the contravention; and
d)Either subsection (2) or (3) applies.
What s.70NEA(1)(c) requires is that the person found to have contravened the order must prove that he or she had a reasonable excuse for the contravention. It is not incumbent on the applicant to disprove reasonable excuse; the Respondent is required to prove it. The standard of proof to be applied is proof on the balance of probabilities (s.70NAF(2)).
Section 70NAE sets out what a reasonable excuse for a contravention may be, without being an exhaustive definition. Subsections 70NAE(2) and (4) to (7) set out what is a reasonable excuse.
Subsection 70NAE(2) provides that it is a reasonable excuse if:
a)The respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person that was bound by it; and
b)The court is satisfied that the respondent ought to be excuse in respect of the contravention.
Subsections 70NAE(4), (6) and (7) do not appear to be relevant to the circumstances of this case.
Subsection 70NAE(5) provides:
A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health and safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
In my view, if either party wishes to establish that he or she has a reasonable excuse for the contraventions, he or she must not only be given an opportunity to do so but must be given the information to enable him or her to present evidence of a reasonable excuse in a way that can be accepted by the Court.
This is particularly so in the case of the Mother, who is not legally represented in these proceedings. It will not do for either party to be left with the impression that he or she can establish a reasonable excuse on the balance of probabilities other than by giving evidence on affidavit and undergoing cross-examination on the contents of the affidavit (SZRUR v Minister for Immigration and Border Protection[13]).
[13] [2013] FCAFC 146
The Father has already provided affidavit evidence and been cross-examined in respect of his asserted reasonable excuse for contravening the Order as set out in Count 1 of the Mother’s Application. He should be given the opportunity to provide affidavit evidence of a reasonable excuse, if he wishes to claim one, for the contraventions alleged in Counts 2 and 3 of the Mother’s Application.
Of course, the Father should also have the opportunity to provide affidavit evidence to contradict the Mother’s case that he contravened the Order at all.
Similarly, the Mother should have the opportunity to provide affidavit evidence in respect of the contraventions in Counts 1, 3, 4, 5 and 6 of the Father’s Application either to establish that:
a)She did not contravene the Order on those occasions; or
b)She had a reasonable excuse for doing so.
Consequences that may flow from a finding of contravention of the Order
Each party needs to be aware of the consequences that may flow from a finding that he or she contravened the primary order without a reasonable excuse. Section 70NEB of the Act empowers the Court to do all or any of the following:
a)make an order requiring the party to attend a post-separation parenting program;
b)make further parenting order that compensates the other party for time that the other party did not spend with the child;
c)adjourn the proceedings to allow either or both parties to apply for a further parenting order;
d)make an order requiring the party to enter into a bond in accordance with section 70NEC; or
e)make an order that the party should pay some or all of the other party’s costs of the proceedings.
Procedural Fairness
Procedural fairness requires that each party who is the respondent to a contravention Application must be made aware of:
a)his or her right to provide affidavit evidence that would contradict the other party’s case that a contravention of the order has been committed;
b)his or her right to seek to establish that he or she had a reasonable excuse for all or any of the contraventions;
c)the procedure required to bring evidence before the Court; and
d)the consequences that may flow if he or she fails to establish a defence or a reasonable excuse for the contraventions.
I propose to find that the Father has established a prima facie case in respect of the contraventions in Counts 1, 3, 4, 5 and 6 of his Application. I also propose to find that the Mother has established a prima facie case in respect of Counts 1, 2 and 3 of her Application.
I will grant each party leave to file and serve an affidavit setting out the facts upon which they seek to rely in their defence, whether by way of contradicting the other party’s case or by way of establishing a reasonable excuse for the contraventions.
The proceedings will be adjourned to a suitable date for further hearing.
I might note that the parties in their Applications have referred to the Judge who made the original Order by the title “The Honourable”. Judges of the Federal Circuit Court are not referred to by that honorific, which is applied to judges of the Family Court and the Federal Court. A judge of this Court is to be referred to as “Judge” or “his or her Honour Judge” (see Federal Circuit Court of Australia Act 1999 (Cth), Sch.1, Part 1).
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 4 December 2015
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