Argyros and Argyros - [2011] FamCA 609

FAMILY COURT OF AUSTRALIA

ARGYROS & ARGYROS

[2011] FamCA 609

FAMILY LAW – CHILDREN – With whom a child spends time with – Orders – contravention – Where the mother took reasonable steps and the contravention continued for no longer than was necessary – Court finds the mother had a reasonable excuse for the contravention under s 70NAE – s 70NDB not applied and no provision made for make-up time
FAMILY LAW – COSTS – Circumstances justifying order under s 117(2) of the Family Law Act – Applicant wholly unsuccessful – Costs order made

Family Law Act 1975 (Cth)

Childers & Leslie (2008) FLC 93-356
Taikato v R (1996) 186 CLR 454
The Marriage of Lutzke (1979) 5 Fam LR 553

APPLICANT:

Mr Argyros

RESPONDENT:

Ms Argyros

FILE NUMBER:

SYC

1771

2010

DATE DELIVERED:

29 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

29 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Slade Manwaring

COUNSEL FOR THE RESPONDENT:

Mr Thorburn

SOLICITOR FOR THE RESPONDENT:

Mervyn Finlay Thorburn & Marshall

Orders

That the contravention application filed by Mr Argyros on 27 May 2011 is dismissed.
That the applicant pay the respondent’s costs of the above application in the sum of $1,600.00 within eight (8) weeks.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1771 of 2010

Mr Argyros

Applicant

And

Ms Argyros

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
These proceedings concern an application filed by Mr Argyros (“the father”) on 27 May 2011 seeking that Ms Agyros (“the mother”) be dealt with for a contravention without reasonable excuse of parenting orders.
The orders are those made on 17 September 2010, which incorporated orders made on 31 May 2010. They relate to the parties’ two children, B, born in 2007, and C, born in 2008 (“the children”).
The orders address, inter alia, the time the children spend with the father, circumstances under which they will spend time with him and how changeover will be facilitated.
The contraventions relate to the mother’s undisputed failure to facilitate the children’s time with the father on two occasions.
The father relies on his affidavit filed 27 May 2011 and his mother’s affidavit filed today.
The mother relies on her affidavit sworn 24 June 2011.
The parties, but not the paternal grandmother, were each cross-examined.

The applicable law

The consequences of a failure to comply with orders that affect children are set out in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
For contravention applications, the Court may find that a contravention is alleged to have occurred but is not established (Subdivision C); or that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
The meaning of “contravened an order” is found in s 70NAC of the Act which is set out below:
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.
It is subparagraph (a) with which we are concerned in this case.
The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities (other than when the Court is considering sanctions for serious contraventions) having regard to the gravity of the allegation. The contravention must be shown to be intentional though not requiring proof of contumacious behaviour. See s 70NAF of the Act and also Jets & Maker [2010] FamCAFC 55 per O’Ryan J at par 83.
If the contravention is proved, the onus shifts to the respondent to establish on the balance of probabilities a reasonable excuse for non compliance.
The meaning of “reasonable excuse” is found in s 70NAE of the Act which is set out below:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children 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 who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4)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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5)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 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 spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(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).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Section 70NAE was considered by Warnick J in Childers & Leslie (2008) FLC 93-356. At pars 22 - 24, Warnick J said:
22. As earlier seen, s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
23. The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
24. While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “…necessary to protect the health…” and “…not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
With these remarks I agree. They are a statement of the law which applies in this case.
Warnick J in Childers & Leslie went on to explain that the test of reasonableness is not simply whether viewed from some ill-defined concept of fairness or reasonableness a person’s actions can be excused. The position, as his Honour explained, with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. See, for example, in The Marriage of Lutzke (1979) 5 Fam LR 553.
In Taikato v R (1996) 186 CLR 454, the High Court (per Brennan CJ, Toohey, McHugh and Gummow JJ), in a different context, considered the meaning of “reasonable excuse” in relation to which they said:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception… (page 464, footnotes omitted)
…
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of parliament and give effect to their own ideas of what is a “reasonable excuse”… (page 466)

The Alleged Contraventions

The relevant orders are Order 2 of the consent orders made on 31 May 2010:
2. That the children B and C live with the father as follows:
a. From 10am to 5pm, each Wednesday;
…
c. Commencing 10 July 2010 each alternate week:
i    From 10am Saturday until 11am Sunday; and
ii In the other week from 10am Friday until 11am Saturday
…
and Order 3 of the orders made by Rose J on 17 September 2010:
3. That Orders are made in terms of Exhibit 1 as amended:
…6.     That notwithstanding any other Order herein:
…
6.3The children spend time with the father each Easter Sunday from 9.00am to 5.00pm.
….
It is agreed that pursuant to these orders, the father was to spend time with the children on Sunday, 24 April 2011, which was Easter Sunday, and the following Wednesday, 27 April 2011. The intervening days of 25 and 26 April 2011 were public holidays. That they were public holidays is a matter of some significance.
It is common ground that the father spent time with the children on Friday, 22 April 2011 overnight until Saturday, 23 April 2011 in accordance with the orders and that changeover occurred without incident.
The mother called police at approximately 9.45 pm that evening concerning allegations that the father had hit one of the children across the face that weekend. The police attended the mother’s home the next morning and took her statement. That morning, being 24 April 2011, the mother sent the father a text and an email in which she stated that she would not make the children available that day as required by the orders. She did not explain why.
It is common ground that the mother did not facilitate the children spending time with the father on Sunday, 24 April 2011 in contravention of the orders.
On 24 April 2011, police also attended the father’s home where he resides with his mother. At 5.45 pm, police interviewed the paternal grandmother in relation to the mother’s notification the previous evening. Because the father was not home, they asked her to make arrangements for him to attend the police station when he returned. This he did, and at 8.45 pm on Easter Sunday, the father was interviewed. The father and his mother denied the allegations that had been made.
The mother was informed of their denials and that no further action would be taken by police on Tuesday, 26 April 2011. Because 25 and 26 April 2011 were both public holidays, she was unable to obtain legal advice from those representing her in relation to what steps, if any, she should take. Thus, on 26 April 2011, she gave notice to the father that the children would not be made available on Wednesday, 27 April 2011.
The father was in contact with his lawyers promptly on 27 April 2011. They sent the mother’s solicitors a request for information about the details of her allegation, make-up time, and confirmation that the mother would thereafter make the children available in accordance with the orders.
On Thursday, 28 April 2011, the mother’s solicitors responded to the father’s solicitors in which particulars of the alleged incident were given and changes to the children’s behaviour which the mother said were out of character. The mother has since facilitated time between the children and the father in accordance with the orders.
Thus, it will be apparent that it is not in dispute that the mother contravened orders for the children to spend time with their father on 24 and 27 April 2011. The question becomes, then, whether she had a reasonable excuse for these contraventions? As both contraventions relate to the same factual substratum, they will be dealt with together.

Does the mother have a reasonable excuse?

It is, as I mentioned, common ground that the children were returned by the father to the mother on 23 April 2011 at the appointed time. There was no distress evident in the children at changeover, nor was any complaint made by either child at changeover about the father’s behaviour during the period of overnight time that had just been completed.
The mother’s evidence about what then occurred during the day is found at par 6 of her affidavit filed on 24 June 2011, which I incorporate into these reasons. Cross-examination did not result in any departure by the mother from her evidence about how the children had behaved during the day. Cross-examination, however, did reveal that the mother had previously given evidence of similar behaviour by the children, and thus, it was submitted by counsel for the father, her evidence that this behaviour was out of character should be treated with some caution.
The sense I had of the mother’s evidence about the children’s behaviour on the Saturday was that it was the degree to which these behaviours were present that caused her to describe it as being out of character, not that this type of behaviour had never previously been seen in the children. Accordingly, the degree of the behaviour according to her is something which she later viewed as significant. In par 7 of her affidavit, she sets out a conversation which occurred between her and the children at 9.00 pm on the Saturday evening. I incorporate that paragraph into these reasons. From that paragraph, it would appear reasonable for the mother to regard this as a spontaneous remark by C to the effect that because B had been naughty, the father hit him on the face. In response to a leading question from the mother, B agreed this is what occurred, at least insofar as he had been hit on the face by his father. Further context was not provided by B.
The parties’ communication is apparently poor, and they use a communication book to provide information to each other about the children. There was nothing in the communication book when the children returned that weekend which might have explained the children’s remarks. Thus, the mother says that in the context of there having been an apprehended violence order which included not only her but also the children as persons in need of protection, her evidence (which is presently untested) of family violence but which is corroborated to the extent that there is evidence from two other people that they saw bruises on her body which she said the father caused, she needed to protect the children and for their remarks to be investigated. The question is was it reasonable for the mother at that point to be concerned about the children’s safety? In my view, it was.
The mother, as I have already indicated, immediately contacted police, who activated an investigation of what she believed was a credible account by the children of B being hit by his father. Another option would have been for her to contact the father and/or his mother or other family members who had been involved that weekend and try to establish what had or had not occurred. Because the mother did not believe the father or paternal grandmother (with whom she has previously enjoyed a good relationship) could be relied upon to tell her the truth, in particular, if the father had hit B, she did not pursue this obvious line of enquiry. It is conceded by the mother’s solicitor that in a perfect world, it would have been reasonable to expect her to do so. That she did not do so, however, does not necessarily render the steps she took unreasonable. The point being she sought the assistance of skilled investigators to find out what occurred that weekend. As was anticipated by her, police spoke with her, observed but did not interview the children, if I understand the evidence correctly, and spoke with the father and the paternal grandmother.

It was reasonable for the mother to give careful consideration to the children’s remarks in the context of their behaviour that day. Also the context in which these remarks were made, that is, when informed by her they would return to their father the following day, there being no prior discussion, I infer, about the father behaving inappropriately and their demeanour during this discussion. In other words, it was reasonable for the mother to act to protect the children, who are two and three years old, from potentially being hit across the face for being naughty. This is a safety issue of the type contemplated in s 70NAE(5).
It was also reasonable for her to hand to others, that is, the police the task of investigating the children’s remarks and to not make the children available to spend time with the father while the investigation was underway and before she had the opportunity to obtain legal advice. In total, these processes took five days, the effect of which was the father was denied 15 hours with the children. In these circumstances, I am satisfied the contravention continued for no longer than was necessary. So that it is clear, I do not accept that the mother’s failure to commence an application to suspend or vary the orders belies a genuine belief by her that the father behaved in the manner described by the children as outlined in her par 7. It is, notwithstanding a person’s belief, appropriate for him or her to take advice and only activate a court process if there are reasonable prospects the Court may intervene. It is clear the mother took advice from her lawyer in relation to the incident. I do not infer that her failure to commence proceedings meant that she did not believe the father behaved as outlined in par 7 and that it was necessary to contravene the orders for a time to ensure the children’s safety.
The question which then arises is, the Court having found that an order has been contravened but that there was a reasonable excuse, whether to apply s 70NDB and nonetheless make an order which would compensate the father for the time he did not spend with the children. The orders provide that the children spend time with the father twice a week. Since February 2011, he has, without the need for another order, spent an additional half an hour each Wednesday with them. It is agreed this arrangement will continue. I am not confident that I know enough about the parties and the children to be satisfied that orders which they and/or the Court have recently determined are in the children’s best interests should be altered. In these circumstances, I am not satisfied that it is appropriate to vary the parenting orders to make provision for make-up time.

Costs

I took submissions in relation to costs, it being each party’s position that if they were successful, costs should be ordered in their favour, if unsuccessful, adverse costs should not be awarded. Section 70NDC of the Act is one of two sections concerning costs in the context of contravention proceedings under Division 13A and applies in circumstances in which a contravention has been established, but the respondent has shown that they had a reasonable excuse for the contravention.
Section 70NDC provides:
(1) If the court does not make an order under section 70NDB in relation to the current contravention, the court may make an order that the person who brought the proceedings (the applicant) pay some or all of the costs of another party, or other parties, to the proceedings.
(2) The court must consider making an order under subsection (1) if:
(a) the applicant has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NEB or 70NFB in relation to the contravention.
Thus, subsection (1) of s 70NDC provides that where a Court has not made an order for compensatory time, the person who brought the proceedings, that is, the applicant, can be ordered to pay some or all of the costs of the other party, that is, the successful respondent.
The provisions which otherwise relate to costs are found in ss 117(1), (2), and (2A) of the Act.
Section 117(1), (2) and (2A) of the Act provides:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
For a court to make an order for costs, the court must be of the opinion that there are justifying circumstances. Here the justifying circumstances are that the applicant has brought proceedings in which he has been entirely unsuccessful.
The factors that the Court would then look at are contained in subsection (2A). Dealing with those in order, the parties’ financial circumstances are not the subject of detailed evidence. The applicant father has after a period of unemployment returned to part-time work and since earlier this year has been working three days a week or so. He resides with his mother, and he does not pay child support. The respondent mother is unemployed, and supports not only herself but also the children. The evidence is insufficient for me to draw any distinction between the parties’ financial circumstances, and the application of the subsection is moot.
Subsection (b) is not relevant. Subsection (c) relates to the conduct of the parties and would not in this case be relevant. Subsection (d) relates to whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders. These proceedings have been initiated as a consequence of the mother’s failure to comply with orders, and the application of the subsection favours the father. Subsection (e) relates to whether any party to the proceedings has been wholly unsuccessful. The father has been wholly unsuccessful, and the application of the subsection favours the mother. Subsection (f) does not apply. Subsection (g) enables the Court to take into account such other matters as the Court considers relevant.
It is submitted by counsel for the father that an order for costs would not be made against him because this would have, in effect, a prophylactic effect and frighten off litigants who have orders in their favour which have been contravened. There is a deceptive attraction to the submission. In this case, however, one sees that the contravention occurred in late April 2011 and the contravention application was commenced four weeks later. In the intervening period, the allegations made by the mother had been investigated, the details of what was said to have occurred had been communicated, and contact between the children and the father had resumed. The point being that before the father initiated these proceedings, he was in possession of the facts and was not being denied ongoing time with the children.
Before a party presses an application, one would anticipate that they would take advice and reflect carefully upon their prospects of success. They would commence proceedings on the basis that it was possible that if unsuccessful, an order for costs may be made against them. There is no statutory indemnity against costs in applications of this type. I am not satisfied that an order which would require the applicant to pay costs would properly be interpreted by him (or others) as the Court giving scant regard to the obligations of those bound by orders to comply or frighten him or others in his circumstances from bringing meritorious contravention applications. I place considerably greater weight on the applicant being wholly unsuccessful, that he was in possession of the facts, time between him and the children had resumed and had been suspended for a period which was no longer than was necessary to enable the children’s remarks to be investigated in coming to the view that an order for costs should be made against the applicant. Some weight is attached to his recent return to work and that the proceedings were commenced as a consequence of the respondent’s failure to comply with orders.
The amount sought by the respondent is $1,600.00, which is similar but slightly less than the amount sought by the applicant, had he been successful. I am satisfied $1,600.00 is an appropriate amount for adverse costs in this case.
The question is the period of time which the applicant should have to pay the amount sought.
The applicant will have eight weeks to pay the costs.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 29 June 2011.

Associate:

Date: 29 June 2011