ANDERSON & GEDDES

[2015] FamCA 719

FAMILY COURT OF AUSTRALIA

ANDERSON & GEDDES [2015] FamCA 719

FAMILY LAW – CHILDREN – two counts of contravention alleged by mother – two allegations of the father failing to facilitate a telephone call between the child and the mother on the child’s birthday and the children and the mother on the mother’s birthday – contraventions proven on the basis of making no reasonable attempt to comply with the order - satisfied no reasonable excuse for the contravention.

Family Law Act 1975 (Cth), div 13A, pt VII, ss 70NAC, 70NAE, 70NAF, 70NEA and 70NEB
Family Law Rules 2004 (Cth), r 21.08

APPLICANT: Ms Anderson

RESPONDENT: Mr Geddes

FILE NUMBER: MLC 5223 of 2013

DATE DELIVERED: 26 August 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 6 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Potter

SOLICITOR FOR THE APPLICANT: Peninsula Law

THE RESPONDENT: In person

Orders

THE COURT FINDS THAT

1. The applicant mother has established that the respondent father has contravened order 23 of final parenting orders made by consent on 17 February 2015, on two occasions being 16 and 17 May 2015, by making no reasonable attempt to comply with the order.

2. There is no reasonable excuse for the contraventions.

AND IT IS ORDERED THAT

1. That the parties attend before the Court to be heard on the question of any sanction to be imposed on 2 September 2015 at 9.30am.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC5223/2013

Ms Anderson

Applicant

And

Mr Geddes

Respondent

REASONS FOR JUDGMENT

Introduction

1. The mother brings an application for contravention alleging two counts concerning three children of the relationship.  The children are B aged 8, C aged 7 and D aged 4. The mother alleges that the father is in breach of final parenting orders made by consent on 17 February 2015 and in particular paragraph 23 of those Orders which provides the following:

   23. That the parents shall facilitate the children telephoning the other parent upon any reasonable request of the children or any of them and on each of the children’s and parents’ birthdays where they are not otherwise with that parent at 6.00pm.

2. The mother alleges that the father without reasonable excuse failed to facilitate a telephone call between D and the mother on D’s birthday at 6.00pm (Count 1).  The mother further alleges that the father without reasonable excuse failed to facilitate a telephone call between the children and the mother on the mother’s birthday at 6.00pm (Count 2).

3. The father denied the contraventions.

4. The mother relied upon her Application filed 18 June 2015 and paragraphs 23 to 26 of her Affidavit filed 18 June 2015.

5. The father relied upon his Affidavit filed 29 June 2015, paragraphs 2 to 6. 

Background

1. The mother is aged 42 and the father is aged 47 and is working part time.  He is a professional by occupation and the mother is not in paid employment.  The parties began living together in June 2006 and separated on 17 June 2013.  There has been a long history of litigation commencing in the Federal Circuit Court in June 2013 when the father filed an Initiating Application.  The family have been involved with numerous professionals including Family Consultants Dr E, Mr F, psychiatrist Dr G, psychologist Dr H and Regulation 7 Family Consultant, Ms I.

2. The proceedings were transferred to the Family Court and ultimately final parenting and property orders were made by consent on 17 February 2015.  Amongst other things those orders provided for the children to live with the mother and spend time with the father from Thursday afternoon to Tuesday morning on alternate weeks.  The children also spend time with the father for half of all school holidays and Order 23 provided for the parents to facilitate the children telephoning the other parent upon any reasonable request of the children and at 6.00pm on each of the children’s and the parents’ birthdays where they were not otherwise with that parent.

3. The mother has recently filed an Initiating Application on 18 June 2015 and the father has filed a Response to Initiating Application on 29 June 2015.  The Initiating Application and Response have not yet been determined and have been adjourned until after the determination of the contravention application. 

The law

1. Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) governs applications for contravention of orders made under the Act. The alleged contraventions here arise out of parenting orders made by consent on 17 February 2015.

2. Subdivision E of Division 13A of Part VII provides for circumstances where the contravention is found to have occurred without reasonable excuse and the contravention is “less serious”.

Meaning of “contravened” an order

1. Section 70NAC of the Act provides that:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting 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; or

   (b)otherwise – he or she has:

   (i)intentionally prevented compliance with the order by a person who is bound by it; or

   (ii)aided or abetted a contravention of the order by a person who is bound by it.

Standard of proof

1. Section 70NAF provides that:

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)The court may only make an order under:

   (aa)paragraph 70NEB(1)(da); or

   (ab)paragraph 70NECA(3)(a); or

   (a)paragraph 70NFB(2)(a), (d) or (e); or

   (b)paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

Less serious or more serious contravention

1. Section 70NEA of the Act sets out the manner in which a court may deal with a contravention in circumstances where it is considered “less serious”. Section 70NEB of the Act provides:-

   (1)If this Subdivision applies, the court may do any or all of the following:

   (a)make an order directing:

   (i)the person who committed the current contravention; or

   (ii)that person and another specified person;

   to attend a post-separation parenting program;

   (b)if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

   (c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

   (d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

   (da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;

   (e)if:

   (i)the current contravention is a contravention of a parenting order in relation to a child; and

   (ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

   (iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

   make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

   (f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

   (g)if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

Meaning of “reasonable excuse for contravening” an order

1. Section 70NAE of the Act provides for circumstances in which a person may be taken to have had a reasonable excuse for contravening an order under the Act affecting children but is not limited to those circumstances. Subsection 6 of section 70NAE provides the following:

   (6)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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

Procedure

1. Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outlines the procedure for the hearing of an application for contravention which was applied in this case.

The hearing

1. The father did not seek to cross examine the mother in respect of her affidavit material.  He admitted that the two telephone calls had not been made on 16 or 17 May 2015 when the children were in his care.  He conceded that at the time of the alleged contraventions he understood the obligations imposed by the order and that he was bound by paragraph 23 of the final orders made 17 February 2015.

2. The father deposed in his affidavit that he had always encouraged the children to maintain contact with their mother whilst in his care and at paragraphs 3 to 6 deposed:

   On the applicant’s birthday … 2015, I asked the children if they wanted to call her, but they refused the offer.  This also occurred on [D’s] 4^th birthday on … 2015.  [B], our 8 year old, has access to her mobile phone at all times, and is free to call the applicant any time, but refuses to do so.

   The applicant has denied me any contact via phone or otherwise with the children when they are in her care since February 2014. 

   The applicant has provided [B] with an iPhone 5.

   The applicant has told [B] not to give her mobile number to me.

3. On the basis of the mother’s evidence which was not challenged, I ruled that there was an arguable case to answer.

4. The father gave additional evidence in chief in the following terms.  He conceded that he was aware of his obligations and that he attempted to have the children telephone their mother on both nights.  He stated that:

   The little fellow was screaming and saying ‘no he didn’t want to’.  They were tired at that time of night and the girls refused to call.  They were reluctant to upset anyone despite the fact that I said it was fine and they are free to call their mother anytime.

5. In cross examination the father conceded that he did not refer to D screaming in his affidavit and he conceded that in hindsight he could have dialled the telephone number for the children and handed the telephone to them to speak to the mother.  He stated that he was reluctant to do so because he thought it would lead to a further complaint.  He denied that it was a poor reflection of his parenting ability that he was unable to assist the children aged 8, 6 and 4 to make a telephone call.  When it was suggested that the girls did not verbalise reluctance, the father stated “I said it’s ok and they can call their mother anytime and they haven’t taken that up once.” 

6. In cross examination the father insisted that he took all reasonable steps but ultimately conceded that the only extra thing that he could have done would have been to dial the number and hand the telephone to the children.  He stated that he wrote the number down and gave the phone to them but they did not make the call.  He stated that he thought that was what was required.  The father went on to complain about the mother having failed to facilitate telephone contact between him and the children for a period of two years.  When it was suggested in cross examination that he spoke to B on her birthday this year he stated that he could not recall.  He continued to complain that the children have not called him but that he had encouraged the children to telephone the mother when they were in his care but he was aware that they had not taken up that offer.

Determination of the contravention applications

1. There was no issue that the telephone calls which the father was obliged to facilitate pursuant to paragraph 23 of the final parenting orders were not made.  There is also no issue that the father was aware of his obligations under those orders. 

2. I am satisfied on the balance of probabilities that the father did not facilitate communication by telephone with the mother on D’s birthday and on the mother’s birthday between the children and the mother.  The communication on D’s birthday should have been between D and the mother. 

3. I am satisfied that on the balance of probabilities that the father did not make a reasonable attempt to comply with the orders on both days.  He conceded that he did not dial the telephone number for the children and hand the telephone to them.  His evidence that he provided the children with the telephone number and told them to ring was not sufficient to fulfil his obligation under paragraph 23 of the final parenting orders.  This is particularly so for children aged 8, 7 and 4. 

4. I am not satisfied that the father has on the balance of probabilities established that he has a reasonable excuse for failing to facilitate the communication with the mother on those two occasions.  This was virtually conceded by the father on his own evidence.

5. The father’s attitude during his evidence also indicated that he was focused upon blaming the mother for past conduct and his evidence had a punitive quality to it.  Although having made some concessions about failing to dial the mother’s telephone number on behalf of the children, the father did not appear to accept that he had failed in his obligation.

Discretion to order costs and any sanction

1. Any order for costs and any sanction are discretionary matters for the Court. Counsel for the mother sought that an order be made for costs on scale against the father. The father was unrepresented, the circumstances of these contraventions are not at the serious end of the spectrum, and I accept the evidence of the father that he asked the children to make the telephone calls. It is therefore appropriate that he be heard on the question of any sanction to be imposed, and the question of costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 26 August 2015.

Associate:

Date:  26 August 2015