Bakal and Kapicic

[2017] FamCA 816

FAMILY COURT OF AUSTRALIA

BAKAL & KAPICIC [2017] FamCA 816

FAMILY LAW – ORDERS – CONTRAVENTION – Where the mother alleges the father failed to comply with parenting orders without reasonable excuse – where the mother pleas two counts where the father failed to make the child available to spend time with her – where in defence the father admits the contravention but pleas a reasonable excuse – Consideration of the father’s excuse –where the count is proven without reasonable excuse – where the proceedings are listed for sentencing submissions.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NEA 70NFA

Family Law Rules 2004 (Cth) r 21.08

APPLICANT: Ms Bakal

RESPONDENT: Mr Kapicic

FILE NUMBER: ADC 4291 of 2011

DATE DELIVERED: 13 October 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wabnitz

SOLICITOR FOR THE APPLICANT: Daniel John Lawyers

COUNSEL FOR THE RESPONDENT: Litigant in Person

SOLICITOR FOR THE RESPONDENT:

Orders

UPON NOTING that counts one and two of the Amended Application for Contravention filed 11 August 2017 are proven, it is ordered:-

1. That the Application for Contravention is set down for sentencing on 28 November 2017 at 9 am.

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

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

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4291  of 2011

Ms Bakal

Applicant

And

Mr Kapicic

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Amended Application for Contravention filed 11 August 2017 Ms Bakal (“the applicant”) alleges that Mr Kapicic (“the respondent”) has failed to comply with parenting orders made 26 May 2016 and that he did so without reasonable excuse.

2. The Application was supported by an affidavit of the applicant.

3. The respondent elected not to file an affidavit but rather gave oral evidence.

4. The applicant was represented by legal counsel whereas the respondent was self-represented.

Background

1. The parties are the parents of B born in 2005 (age 12) (“the child”). Proceedings were initially filed in 2011 and since that time the parties have been in almost constant litigation.

2. Proceedings were listed for a final hearing and by orders made 26 May 2016 the child was to live with the father and spend time with the mother as follows:-

   a)From 9 am Saturday to 5 pm Sunday on each alternate weekend;

   b)From 9 am until 5 pm on Mother’s Day should the child not otherwise be in her care provided that her time will be suspended from 9 am to 5 pm on Father’s Day;

   c)From 3 pm Christmas eve until 3 pm on Christmas day on even numbered years;

   d)From 3 pm on Christmas day until 3 pm on Boxing day on odd numbered years;

   e)For such other times as the parties may agree;

   f)In each of the short holiday periods at the end of term 1, 2 and 3 as agreed, and in default of agreement;

   i)For the first half in odd numbered years;

   ii)For the second half in even numbered years;

   g)During the Christmas school holidays in weeks 2 and 4 of the said holidays.

The Application

1. Whilst the applicant only pursued two counts, the allegations of breach were more extensive and in effect alleged a continuing and ongoing breach of the orders as and from 11 June 2016 to 5 August 2017.

2. The alleged breaches were therefore extensive and the applicant invited the Court to dismiss all matters except count one alleging a breach of paragraph 4(f) of the order on 8 July 2017 and count two alleging a breach of 4(a) of the order on 5 August 2017.

3. Whilst it was not relevant, the respondent acknowledged that since the making of the order on 26 May 2016 the child has spent no time with the applicant. Accordingly the respondent admits that there has not been compliance with the order but argues a reasonable excuse can be maintained on the evidence.

4. The counts that are proceeded with are in effect representative of the history of non-compliance.

5. Notwithstanding those observations, in dealing with the remaining counts I am not influenced by the several alleged breaches not proceeded with nor do I consider that the treatment of counts one and two should be considered as more serious simply because they were originally part of a more extensive complaint.

Count one

1. The alleged breach in respect of paragraph 4(f) of the orders is that on 8 July 2017 at 9 am the respondent without reasonable excuse failed to allow the applicant to spend time with the child.

Count two

1. The alleged breach is that in respect of paragraph 4(a) of the orders on 5 August 2017 at 9 am the respondent without reasonable excuse failed to allow the applicant to spend time with the child.

The Law

1. It is Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention for orders made under the Act. The alleged contraventions as set out arise from the parenting orders made on 26 May 2016.

2. Subdivisions C to F of Division 13A of Part VII provides the orders available to the Court that can be made in instances where:-

   a)the contravention has been alleged but not established (subdivision C);

   b)the contravention is established but reasonable excuse for the contravention is found (subdivision D);

   c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (subdivision E); and

   d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (subdivision F).

SECTION 70NAC – MEANING OF “CONTRAVENED” AN ORDER

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 a 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.

(b)…

SECTION 70NAE – MEANING OF “REASONABLE EXCUSE FOR CONTRAVENING” AN ORDER

(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 not limited to, the circumstances set out in (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 the 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 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 reasons 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 now follow if he or she contravenes the order.

(4)…

(5)…

(6)…

(7)…

SECTION 70NAF – STANDARD OF PROOF

(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 contravenes an order under this Act affecting children had a reasonable excuse for the contravention.

(3)The court may 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 exists.

1. Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered less serious.

2. In respect of a more serious contravention the provisions are to be found at s 70NFA of the Act.

3. Rule 21.08 of the Family Rules 2004 (Cth) (“the Rules”) outline the procedure for hearing of an application for contravention orders.

RULE 21.08 – PROCEDURE FOR HEARING

At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:

(a)inform the respondent of the allegation;

(b)ask the respondent whether the respondent wishes to admit or deny the allegation;

(c)hear any evidence supporting the allegation;

(d)ask the respondent to state the response to the allegations;

(e)hear any evidence of the respondent; and

(f)determine the case.

Application of the Law

1. Counsel for the applicant submits that the contraventions alleged in the application establish that there has been a contravention of orders without reasonable excuse. He seeks to have the Court consider the contraventions pursuant to subdivision F of the Act, namely that the contraventions should be treated as “more serious” contraventions and therefore allowing more serious penalty options to be available.

2. A contravention can only be found to be a more serious contravention if subsections 70NFA(2) or (3) applies. There has not been any previous order imposing a sanction or taking an action in respect of the contravention of an order by the respondent. Subdivision F can only apply if “the Court dealing with the current contravention is satisfied that the person has behaved in a way which shows a serious disregard of his or her obligations under the primary order” (subsection 70NFA(2)(b)).

3. I have a discretion not to apply the provisions of subdivision F if I consider that in any event it is more appropriate for the contravention to be dealt with under subdivision E pursuant to s 70 NFA(4).

Evidence and Submissions

Counts one and two

1. The applicant alleges that she has not spent any time with or communicated with the child since the orders.

2. The particulars of the alleged breaches are as follows:-

   [31]On Saturday 8 July 2017 at 9 am I attended at the [Suburb Z] Police Station to collect the child. I was to spend time with the child for a week commencing on that day, as it was during the July school holidays. The father failed to attend the police station and he did not send me a message to say that he would not be attending with the child. Nor did he subsequently provide me with an explanation for his non-compliance on this occasion.

   [32]On Saturday 5 August 2017 at 9 am I attended at the [Suburb Z] Police Station to collect the child. The father failed to attend the police station and he did not send me a message to say he would not be attending with the child. Nor did he subsequently provide me with an explanation for his non-compliance on this occasion.

3. The orders of 26 May 2016 provided for handovers to take place at the Suburb F Police Station. That station closed and the orders were subsequently amended on 10 March 2017 to reflect that handovers were to take place at Suburb Z Street Police Station.

4. The applicant considers that the respondent has “demonstrated a serious disregard” in respect of the orders.

5. As an indication of the respondent’s attitude the applicant refers to an affidavit prepared by a process server which recorded the respondent’s words upon him being served with the applicant’s notice of appeal in the following terms:-

   I don’t care what she does she wont get her son back…

6. The respondent admitted that he had not complied with the orders. The focus therefore was on whether the evidence supports a finding that the respondent’s non-compliance was borne of reasonable excuse.

7. The respondent tendered a note written by the applicant and given to a student at the child’s school. The purpose of the note is clear from the initial paragraph:-

   Dear [AA], would you please be kind enough to give the note inside this to [the child]. It is almost a year since he and I have been together and his Dad does not let him ring me or receive phone calls from me. Please give him the envelope at recess time, so he has time to read it…

8. The note was provided to the respondent. There are aspects of the note that give him concern. In particular the following appears:-

   As you know, your Dad has mobile tracking on my phone and on your phone and your watch, and possibly on something attached to your backpack so he can watch where we are and control us. I have a new phone. [BB’s] mum and [CC] know the new number and so [DD’s] mum. You can ask one of them to use their phone to ring me or ask anybody (a friend) to use their phone to call me…our phones cannot be tracked if they are turned off and the batteries are removed. There is a court order (intervention order) to protect me from your Dad. He is not allowed to come near me or my house because of his threats to harm me and the many times he has broken into my house and stolen things and vandalised my house, garden and car. He has also tried to have my house sold to make me homeless. The court has stopped this. I know he has told you and other people many many lies.

9. The respondent challenged the applicant as to the accuracy of the allegations in the exhibited letter but also that it was inappropriate correspondence.

10. The extension of the respondent’s argument is that the applicant’s behaviour as encapsulated in the note heightens the child’s anxiety about her when considered together with her behaviour in attending at the child’s school and attempting to involve his school friends, their parents and the police.

11. The applicant agreed that the letter was intended for the child and that she had gone to significant steps to ensure that he received it.

12. Whilst she admitted that there had been communication with other students and some parents she did not agree that it was intended to do more than to explore (perhaps with a level of desperation) methods by which she could make contact with the child given that there had not been any compliance with the order.

13. The respondent agreed that the child had not spent time with the applicant. He asserted that the applicant’s conduct had become so florid and exaggerated that the child was now fearful and possibly exasperated with the applicant’s conduct. He denied that he had attempted to in any way alienate the child from having a relationship with the applicant but strongly asserted his support for the child’s relationship with the applicant and his various attempts to persuade the child of the advantages of maintaining a relationship.

14. His efforts were apparently without success and it is his case that the child refuses to see the applicant with little ability on his part to persuade or induce the child to spend time with his mother.

15. The respondent’s position can be summarised by his assertion that notwithstanding his best endeavours to encourage the child to spend time with his mother all reasonable attempts have been unsuccessful. The resistance is therefore emanating from the child and not promoted by the respondent.

16. It is reasonable to find that the contents of the exhibited letter are inappropriate and not supported by evidence. The tenor of the letter is a plea to the child to make contact with her in circumstances where the order is without compliance.

17. The respondent asserts that it is not in the best interests of the child to spend time with the applicant. He conceded that inherent in the orders made 26 May 2016 the Court considered that it was of benefit to the child to spend significant and substantial time with the applicant.

18. The respondent’s evidence was unconvincing. He had no explanation for his failure to bring an application seeking to suspend the applicant’s time with the child pursuant to the order in circumstances where he was not able to comply given the child’s resistance.

19. The best that the respondent could say was that he was currently marshalling his resources to bring such an application but that has not yet materialised.

Conclusion

1. No evidence was presented on behalf of the respondent that evidences his contention that the child is resistant to seeing the applicant and when given an opportunity to present evidence from a teacher he was not able to do so.

2. I do not accept the respondent’s evidence that despite his best endeavours the child refuses to spend time with the applicant. Accordingly I find counts one and two proven. On the balance of probabilities the respondent has not made out a reasonable excuse. Accordingly the proceedings will be further listed on 28 November 2017 at 9 am for sentencing submissions.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 October 2017.

Associate: 

Date:  13 October 2017