Atkins and Milburn

[2013] FCCA 2202

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATKINS & MILBURN [2013] FCCA 2202

Catchwords:
FAMILY LAW – Contravention of parenting orders by father – mother alleged that father fails to see children – father asserts parenting order is unenforceable – application dismissed – costs.

Legislation:  

Family Law Act1975 (Cth)

Bale-Sutch & Bale-Sutch (No. 2) (2007) FamCA 590

Applicant: MS ATKINS

Respondent: MR MILBURN

File Number: NCC 550 of 2007

Judgment of: Judge Coakes

Hearing date: 15 November 2013

Date of Last Submission: 15 November 2013

Delivered at: Newcastle

Delivered on: 15 November 2013

REPRESENTATION

Solicitor for the Applicant: Ms Brooks

Solicitors for the Applicant: Legal Aid NSW

Solicitor for the Respondent: Mr Butterworth

Solicitors for the Respondent: Schofield Muir Lawyers

ORDERS

1. The Orders are made in accordance with the terms of settlement handed up in Court today and marked with the letter “A” and attached herein.

2. The Solicitor for the Applicant is to file a clean certified typescript of the Terms of Settlement to be placed on the court file within forty eight (48) hours of today by email.

3. The father’s application for costs for today is refused.

4. The application for contravention filed by the mother on 11 March 2013 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Atkins & Milburn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT NEWCASTLE

NCC 550 of 2007

MS ATKINS

Applicant

And

MR MILBURN

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

(Edited from the Transcript)

1. In these proceedings, the mother brings an application for contravention asserting that the father did not spend time with the children the subject of these proceedings.  There are three children  X born (omitted) 2001, he is now 12 years and 2 months of age, and twin girls, Y, born (omitted), and Z, born the same day.  They are now 8 years and 9 months of age.  On 9 November 2012, final orders were made by consent which discharged the previous orders. 

2. The later orders – the current orders – provide that the parties have joint parental responsibility for all three children.  The children live with their mother and the children spend time with their father by agreement but failing agreement, as it is then set out in order 4.1:  During New South Wales school terms, from 6 December 2012, every fourth week from the conclusion of school on the Thursday until the commencement of school on the following Monday, and each fourth week in the same fashion. 

3. Order 4.2 provides: for one week of the New South Wales school holidays, at the conclusion of the holidays at the end of terms 1 or 2 or 3 as the father may nominate by giving six weeks’ notice to the mother.  And order 4.3: for two weeks in the term 4 Christmas school holidays and defined as the third and fourth week in odd-numbered years and the first two weeks in even-numbered year.  And order 4.4:  on Father’s Day, if the father is in New South Wales and is not a weekend when he would usually have the children. 

4. There are a number of other practical parenting orders which are made.  No useful purpose is served in my recounting or revisiting those orders for the purposes of these proceedings. 

5. The two contraventions alleged by the mother are that the father did not spend time with the children on 24 December 2012, in accordance with those orders, for a period of two weeks and, secondly, he did not spend time with the children pursuant to those orders on 28 February 2013.  That, respectively, amounts to alleged contraventions of orders 4.3 and 4.1 respectively and the mother’s application is supported by an affidavit setting out the circumstances. 

6. When the matter came before me on 6 May 2013 the first return day, the matter was adjourned to today for a final hearing and I requested, as a consequence of submissions made by Mr Butterworth at that time, that some written submissions be prepared by him and filed with the Court which was done. 

7. It is Mr Butterworth’s contention that the mother failed to establish a prima facie case at law and, in support of that contention, in his written submissions, he sets out a number of matters.  In particular, he refers to a case of Her Honour Bennett J in the Family Court Bale-Sutch & Bale-Sutch (No. 2) (2007) FamCA 590.

8. I have read that case as it is reported – I don’t think it is published, in its entirety.  And the extracts which Mr Butterworth has included in his written submissions are, in my view, the pertinent extracts from her Honour’s judgment. 

9. While I am not bound by Her Honour’s decision as sitting as a single Judge in the Family Court of Australia, nevertheless, it reflects what can be of difficulty sometimes in enforcing an order. 

10. The relevant order of 9 November 2012 is order 4, which is in these terms:

    “The children spend time with the father by agreement but failing agreement”

    and it is set out in orders 4.1 to 4.4 as I have referred.

11. That does not, in my view, create an obligation upon the father to spend time with the children.  The unfortunate consequence of the preparation of those orders or the drafting of those orders is, in my view, that it does not give rise to, within the meaning of section 70NAC, an order which the father can then be found to have contravened, and for this reason:  section 70NAC is in these terms:

    “A person is taken for the purpose of this division to have contravened an order under this Act affecting children if, and only if (1) 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 –

12. Subsection (b) doesn’t apply to the circumstance of this case.

13. So I find as a matter of fact on the material contained in the order that is not an order which binds the father to spend time with the children. 

14. And it seems to me there could be no other interpretation when it comes to consider contravention of that order as it was made.

15. Ms Brooks submits that section 65DA, which refers to parenting orders, and refers to that section applying when the Court makes a parenting order, that:

    (2) It is the duty of the Court to include in the order particulars of (a) the obligations that the order creates; and (b) the consequences that may follow if a person contravenes the order.

16. That is very different from the order as it is prepared amounting to an order enforceable against the father. 

17. Section 65DA is usually completed in a standard form and annexed to parenting orders as they are published by the Court and does set out the obligations that the order creates.  It does not create fresh obligations.  It only sets out the obligations that the order creates and sets out the consequences that may follow if a person contravenes the order.  So section 65DA does not assist the mother in this case because it comes back to the fundamental issue of whether or not there’s an order which a party is compelled to comply with and is bound by. 

18. In this case, as I say, the father is not bound by order 4 of the existing consent orders between the parties. 

19. Mr Butterworth supplements his written submissions by referring to section 55N, which deals with the general obligations created by parenting orders and deals with whom a child spends time and a reference to a person not hindering and so on.  Again, in my view, that does not amount to or does not assist the mother in the application which she brings today for contravention. 

20. It must be remembered that contravention proceedings are sometimes referred to as quasi criminal proceedings because of the ability to impose sanctions, and consequently the onus lies upon the applicant to establish the breach alleged. In my view any application for contravention is required to be proved strictly.  It cannot be a matter for discretion.

21. Mr Butterworth refers also to section 70NAB and section 70NAC in particular to which I’ve referred and section 70NAE(5) which deals with a reasonable excuse.  In my view, when I turn to Bennett Js judgment the order which is applicable in the case which came before her Honour, as it’s referred to in paragraph 20 of her Honour’s judgment, refers to the particular order which was the subject of one of the contravention applications and in part it says this:

    “The first count is that on 24 February 2007 the father failed to attend the changeover point at (omitted) Police Station at 12 midday.  It is alleged that the failure to attend was the contravention of paragraph 1(a) –”

    which should be 1(b) –

    “of orders made on 3 January 2007 pursuant to which the children are entitled to “spend time with their father from 12 midday on Saturday, 24 February 2007 until 6 pm on Sunday, 25 February 2007.”

22. Now, that’s on all fours with the operative order in this case;  that is the children spend time with the father by agreement but failing agreement as the order then provides with specific periods.  Her Honour goes on to point out in paragraph 24:

    “The relevant order is not, in my view, expressed in the term of mandatory injunction towards the father spending time with the boys.  It is expressed so as to define the rights of father as against the mother in relation to the time that they can have with the children.”

23. Her Honour goes on to set out:

    “It is of necessity supported by the obligations imposed by virtue of subdivision (c) of Part VII of division 6.”

24. And her Honour refers to section 65N, and then in paragraph 28 her Honour said this:

    “Were it the case that all of the children spend time with the father was a mandatory injunction –

    which I am comfortably satisfied it is not –

    the order itself would have to make it abundantly clear that it conferred a responsibility and obligation on the father to attend.”

25. And Her Honour then sets out - as Mr Butterworth sets out in his written submissions - the consequences. 

26. For all those reasons I am satisfied there is no mandatory obligation upon the father to spend time with the children pursuant to order 4.  Consequently the mother fails to establish a prima facie case and the mother’s application for contravention against the father filed 11 March 2013 is dismissed.

27. In these proceedings the father now seeks an order for costs against the mother in the amount of about $1700 in accordance with the Schedule prescribed by the Act.  The basis of that application is that the mother has been wholly unsuccessful with her application for a contravention, which for the reasons I gave earlier today I dismissed. 

28. Section 117 prescribes that each party to proceedings under the Act shall bear his or her own costs.  The provisions of division 13A require costs to be considered in certain circumstances, however, this is a case where the mother failed to establish a prima facie case, and there remains a discretion under that Part for the Court to make an order for costs.

29. I am satisfied in any event it’s appropriate to entertain the application for costs in the sense that it’s brought properly under either that Part or section 117.  Section 117(2) gives the Court a discretion to make an order for costs where there are circumstances that justify it in doing so.  I am satisfied the mother brought this application in good faith.  Her concern was that the father did not spend time with the children in accordance with the orders as she perceives they should operate. The mother gave evidence that the children were concerned about not being able to have that time with their father.

30. The mother sets out in her affidavit the consequence for them, and essentially she brought the application with a view to the father spending time with the children, as she perceived it to enable the children to benefit from the time with their father.  I am satisfied, therefore, the application was brought properly. 

31. The father was able to mount an argument as presented by Mr Butterworth that, in fact, the father could not be compelled to comply with the particular order because of the nature of the order, and there is some authority for that proposition and ultimately that is why the mother’s application was dismissed. 

32. However, it seems to me it would be entirely inappropriate to impose, therefore, an order upon the mother that she pay the father’s costs when she brings an application in good faith for the father to spend time with the children.  It could not be said to be in the children’s best interests at all for the mother to be liable to pay costs of that order, some $1700 or thereabouts.  The father has chosen a pathway which on one interpretation may be seen to be not in the spirit of what the parties agreed to for their children when those orders were made in November 2012. 

33. That is a factor which I take into account when the father brings an application for costs.  That being said, nevertheless the primary position is that each party pays their costs and I am not satisfied there is any reason to depart from the primary position under section 117(1) of the Act.  The application is refused. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Coakes.

Date:  15 November 2013