BAMKIN & TATE

[2015] FCCA 779

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMKIN & TATE [2015] FCCA 779

Catchwords:
FAMILY LAW – Children – parenting orders – contravention of parenting orders – where father claims that mother contravened parenting orders on nine occasions – where five contraventions without reasonable excuse established – reasonable excuse – whether mother has established a reasonable excuse – where reasonable excuse established in respect of one count.

Legislation:
Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NAF, 70NEA, 70NEB

Federal Circuit Court Rules 2001, r.25B.04

Applicant: MR BAMKIN

Respondent: MS TATE

File Number: SYC 1276 of 2008

Judgment of: Judge Scarlett

Hearing date: 20 March 2015

Date of Last Submission: 20 March 2015

Delivered at: Sydney

Delivered on: 20 March 2015

REPRESENTATION

Solicitor for the Applicant: Mr Davis

Solicitors for the Applicant: Robertson Saxton Primrose

Solicitor for the Respondent: Mr Reeve

Solicitors for the Respondent: Marsdens Law Group

ORDERS

1. The Respondent mother did on 17 October 2012 without reasonable excuse contravene Order 8 made on 3 August 2009 by refusing to inform the Applicant father that the child X born (omitted) 2001 was ill and had been hospitalised.

2. The Respondent mother did on 5 July 2013 without reasonable excuse contravene Order 2(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the said child X during the school holiday period.

3. Count 20 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother during the second half of the half of the 2013-2014 Christmas school holiday period of Order 2(a) made on 14 May 2012 is dismissed.

4. The Respondent mother did on 2 February 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.

5. Count 22 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother on 15 February 2012 of Order 1(a) made on 14 May 2012 is dismissed.

6. The Respondent mother did on 16 February 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.

7. The Respondent mother did on 16 March 2014 without reasonable excuse contravene Order 1(a) made on 14 May 2012 by refusing to allow the Applicant father to spend time with the child X.

8. The Respondent mother has established a reasonable excuse for contravening on 29 March 2014 Order 1(a) made on 14 May 2012.

9. Count 29 of the Application – Contravention filed on 22 July 2014 alleging a contravention by the Respondent mother on 13 April 2014 of Order 1(a) made on 14 May 2012 is dismissed.

10. The Application is adjourned to Thursday 16 April 2015 for mention at 10:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 1276 of 2008

MR BAMKIN

Applicant

And

MS TATE

Respondent

REASONS FOR JUDGMENT

1. The proceedings before the Court relate to allegations by the father that the mother has, without reasonable excuse, contravened orders made first by consent on 3 August 2009 and modified by orders made ex parte on 14 May 2012.  These orders are parenting orders relating to the parties’ son X, a boy who was born on (omitted) 2001.  He is the parties’ only child, and he lives with the mother, and the orders relate to X spending time with his father and the circumstances of it.

2. The standard of proof to be applied in determining whether a person has contravened an order is proof on the balance of probabilities.  If the Court is satisfied that a person has contravened an order, then the person may still establish that he or she had a reasonable excuse for the contravention, and again, the standard of proof to be applied in determining whether that person had a reasonable excuse for doing so is proof on the balance of probabilities. 

3. The procedure at the hearing is set out in rule 25B.04, and I have endeavoured to follow that procedure today with the assistance of the solicitors for the applicant and respondent.  Both parties are legally represented.  The father originally brought a significant number of contravention applications, but his legal advisors have wisely elected to proceed on a number of allegations and have chosen not to proceed on many others. 

4. There are nine allegations out of the original 29 upon which the applicant has proceeded.  They relate to various allegations said to have taken place between 17 October 2012 and 13 April 2014.  The allegations fall into three main categories:  (1) a contravention of an order requiring the mother to inform the father of any serious illness or injury sustained by the child;  (2) contraventions of orders relating to school holiday time between the father and the child;  (3) contraventions of order relating to the father spending weekend time with the child.

5. The evidence has not been entirely clear-cut;  indeed, Mr Reeve for the mother has referred to a lot of the allegations as being of the ‘he said, she said’ variety.  I have had the opportunity and the advantage of hearing both parties in the witness box under cross-examination and formed impressions of their credibility.  To some extent, matters have been confused during this period of time due to the lamentable lack of communication between the parties. 

6. It is clear that there is a significant degree of conflict between the parties, and thus, the Court has a high degree of conflict and a low degree of communication to deal with.  What communication there has been has been in the form of text messages, a number of which, on each side, have been impolite, to put it mildly, and in many cases, abusive.  The mother, in answer to questions from the bench, had the grace to admit that she was embarrassed by the nature of some of the communications, but sought to explain that by the long history of acrimony between the parties.  

7. I cannot see that the high degree of acrimony and the low degree of communication between the child’s parents has been at all in this boy’s best interests.  I’ve heard submissions from the solicitors for the applicant and respondent, as to whether the various allegations have been made out, and I will deal with those matters in order. 

8. The first allegation is the only one of its type relating to an allegation of a contravention of order number 8, made on 3 August 2009.  That order provided that each party notify the other as soon as possible, and in any event, within 12 hours of any serious illness or injury suffered by the child whilst in the care of that party.  The allegation is that the respondent, without reasonable excuse, refused to inform the applicant that the child, X, was seriously ill and had been hospitalised.  The circumstances and the evidence were that the child had been complaining of symptoms of nausea and abdominal pains, and the mother took the child to see a general practitioner.  The general practitioner formed the view that this boy may well have been suffering from appendicitis, and it was decided that an ultrasound should take place. 

9. On 17 October, the child was taken to emergency at the Sydney Children’s Hospital.  The following morning, the ultrasound took place, and he was diagnosed with appendicitis, which led to surgery in due course.  The mother, on receiving the diagnosis of appendicitis, informed the father.  The father claims that he should have been informed the day before.  The evidence shows that there had been communication between the mother and the father the day before.  The mother had inquired of the father by text message from 3.12 pm onwards:

   Does he have private insurance like you said in court?  What is the number?

10. That was repeated at 3.25:

    Does X have private health insurance or not?

11. The father replied at 6.59:

    X does not have private insurance. 

12. The mother said at 7.01 pm:

    You told the court you were paying for his private health insurance, you lying prick.

13. At 7.02, the father said:

    I was at the time.  No need to insult.

14. The mother at 7.03 pm:

    You are full of bullshit.

15. On the 18^th, the mother sent the father a message 12 noon saying:

    You should have advised me that you were not paying health insurance for your son.  You’ve placed your son’s life at risk, and if anything happens to him, I will hold you responsible.  He has appendicitis and will be operated tonight when they have availability.  If you come here and make a scene, I will call the police.  I’ve advised the staff about your background.  He is at the public children’s hospital, (omitted). 

16. It is submitted for the father that the mother should have advised the father the afternoon before.  For the mother, it is submitted that when she received the diagnosis on the Sunday, that she did advise the father and therefore complied.

17. Of course, in dealing with this order, one needs to make a value judgment as to what is a serious illness.  At the time the mother commenced her communication with the father asking about the private health insurance that the child now does not have, arrangements had been made for the child to be taken to emergency at the children’s hospital for an ultrasound with suspected appendicitis.  The following day, when the mother did advise the father that this diagnosis had been concerned, she said, “you have placed your son’s life at risk, and if anything happens to him, I will hold you responsible.  The child is in hospital,  he’s having tests,  he has been admitted to hospital, and he may need to have surgery”. 

18. In my view, the orders required the mother who was in communication with the father on the Saturday afternoon about private health insurance to have informed the father, that the child was at Sydney Children’s Hospital.  There are tests being carried out.  They thought that he may have appendicitis.  I am satisfied that the contravention in count 3 has been made out. 

19. Count 13 is one of two that relates to school holiday time, although as will be seen, there is some confusion about that.  However, the order that is relevant is order 2 that was made by his Honour Federal Magistrate Kemp, as His Honour then was, on 14 May 2012 discharging orders 3(d) and 3(e) made on 3 August 2009 by consent and providing orders 2(a) and (d), 2(a) being the relevant one saying: 

    During mid year school holiday and Christmas periods, for one half of such period as agreed and in default of such agreement that the first half in even-numbered years and the second half in odd-numbered years for the child to spend time with the father from 9 am to 7 pm every day. 

20. The allegation is that the respondent without reasonable excuse for the June/July school holidays in 2013 refused to allow the applicant to spend time with the child.  The circumstances in respect of this allegation have been described by Mr Reeve for the mother as “messy” and, with respect, it seems to be a somewhat accurate description of the circumstances.  Certainly, the mother’s evidence is that the father has a long history of changing arrangements or not complying with arrangements and that it is very difficult for her to ascertain when he does want to see his child or not. 

21. It is the father’s evidence that, for the July 2013 school holidays, he understood that his half of the holiday period was due to commence on 5 July, sent a text message to the mother that day saying: 

    X was to start his second half of his holiday with me today.  You did not bring him to (omitted). 

22. There were further text messages over the next few days.  The mother replied, saying: 

    I am working, so stop the harassment.  Call him tonight, 7 pm.  The police can ring me if you want. 

23. It is the mother’s evidence in respect of that particular allegation that in accordance with the orders of 14 May, the father was due to spend time with the child in the second half of the holidays in odd-numbered years.  As she said in her affidavit, the halfway point of this holiday period was Wednesday, 3 July or Thursday, 4 July.  She drove X to the agreed changeover point, (omitted) station, at 9 am on Wednesday, 3 July.  The father did not turn up.  The mother went home.  She drove the child to (omitted) station the following day at 9 am, 4 July.  Again, the father did not turn up. 

24. It is the father’s evidence that it was his belief that the midpoint of the school holidays when his time started was the Thursday, 5 July.  It seems to me to be unreasonable, noting the circumstances of the holidays and the arrangements, to have expected the mother to have turned up every day of the school holiday period.  It is astonishing that the mother did not inquire of the father as to his intentions to exercise time with the child when, on her own evidence, she was unsure as to when that time was to be, whether it was the Wednesday the 3^rd or whether it was to be 4 July. 

25. It was the father’s view that it was a different day entirely.  The father, as I said, contacted the mother on 5 July.  It seems to me that if the mother was unsure on her reading of the orders of when the time was to start that she should have some inquiry from the father to the effect of saying, It is my belief that your school holiday time starts on 3 July. Please inform me if you intend to spend time with your son on that day. If so, I will bring him to the changeover point.” Please inform me if you intend to spend time with your son on that day.   This case is very much indicative of a confusion between the parties brought about by lack of communication. 

26. On the balance of probability, however, I am satisfied that the father has made out the case and I find the contravention made out.

27. Count number 20 alleges that the mother without reasonable excuse refused to allow the applicant to spend time with the child during the second half of the 2013/2014 Christmas holiday period.  In my view, if the mid year school holiday could be described as a messy arrangement, this one is even more so.  The father said that he did spend time with X on 7 December but did not spend time with him on 8 December or during the second half of that school holiday period. 

28. There was an exchange of text messages which were not particularly polite.  There were exchanges between the parties as to what the father’s home address was.  There was a reference to solicitors’ messages.  There was a huge amount of messaging without a great deal of communication.  I am not satisfied that count number 20, where it does appear to me that there was at least a partial compliance, has been made out. 

29. Count number 21 refers to a weekend.  Certainly, it has been put that this is very much a “he said, she said” case.  Each party said, “I turned up at the appointed time and the other party wasn’t there.”  It is the father’s evidence – and, in my view, not answered by the mother – that on the day, 2 February, he had communicated with the mother by text from eight, nine, and 10 on the Saturday night, having spent time with the child on the Saturday, in which he said: 

    X prefers to come to (omitted) at 9.30 tomorrow.  For me is no problem.  So please confirm that he’s coming tomorrow and at what time.  Thank you. 

30. There were then messages about addresses and phone numbers.  It is the father’s evidence that he went at the appointed time on the following day and the mother did not attend.  It is the mother’s evidence that she did drive X to (omitted) station at 9 am on 2 February and waited for about 20 minutes and Mr Bamkin did not come to collect X.  On the father’s evidence, he had told the mother that the child wanted to be collected at 9.30, not 9 o’clock.  In my view, the father has made out the allegation and I find that contravention proved. 

31. The next one, count 22, relates to 15 February.  Again, there are cross-claims about the mother saying she turned up at 9 o’clock and the father was not there, the father saying that he turned up at 9 o’clock and the mother was not there.  The mother deposed because X had (hobby omitted) that day at (omitted), she waited for about 10 minutes and then she drove him to (omitted).  There is evidence from both parties which appears to be the first communication that either had – was at 10.14 am, nearly an hour and a quarter after the pickup time, the father then sends a text message to the respondent saying: 

    Where is X? 

32. It seems to me astonishing that if pickup time was supposed to be at 9 o’clock that he waited for an hour and a quarter before inquiring where the child was.  I am not satisfied on that evidence.  Count 22 has not been made out and will be dismissed. 

33. Count number 23 refers to the following day, Sunday 16 February.  It is the father’s evidence that he made inquiries of the mother by text from 6.48 pm and at 6.49 pm sought confirmation that the mother would bring X to (omitted) at 9 o’clock the following morning. 

34. The father has given evidence that he provided an address at (omitted).  The mother says that that address was false in that it was a holiday letting and not a permanent residential address.  The father’s evidence is, however, he did not see the child on Sunday 16 February.  The mother said that she did drive X to (omitted) station, waited for about 20 minutes.  The father did not turn up to collect the child.  If there had been that exchange the night before, why didn’t the mother send a text message saying, “I am here with the child.  Where are you?”  I am satisfied on the balance of probabilities that that count has been made out. 

35. Count number 26, again, relates to weekend time on 16 March.  Again, the mother said that she did drive the child X to (omitted) station at 9 am, waited for about 20 minutes, and the father did not attend.  The father’s evidence was that at 4.51 pm the day before, he had sent a text message to the respondent saying: 

    Are you bringing X to (omitted) tomorrow? 

36. He did not receive a reply.  He sent a further text message at 8.10 pm that night saying: 

    Are you bringing X tomorrow?  He wanted to do sport tomorrow. 

37. It is his evidence that at 9.15 pm on the 15^th, he sent a message saying: 

    Please reply so I can organise things for X.  I only need a “yes” or “no”.  Thanks. 

38. His evidence was he did not see the child on 16 March.  I am satisfied that that contravention has been made out.

39. Count  Number 27 relates to the weekend of 29 and 30 March 2014.  It is the mother’s evidence that the child came home from school on the Friday complaining of a sore throat and told her that he did not want to go to his father’s place that weekend because he wanted to stay home and get better and had sent his father a text to that effect.  The father, at 9 am on the 29^th, said that he sent a text, typing there in it to the effect:

    Through X, I got to know that you’re not letting him see me today.  Are you letting him see me tomorrow?

40. There is no issue as to the fact of the mother’s reply, in which she said – confirmed X was sick.  The text message said:

    Stop lying.  He told you he was sick.  And stop the bullying.  You know perfectly well that you refuse to give me your address and landline.

41. As I put to the mother in her evidence, it would have been far more appropriate for her to have sent a measured and polite text to the father to the effect of the fact that the child had come home sick from school on the Friday and that it would be better for him to have had a quiet weekend at home so that he could get over his sore throat and alternative arrangements could have been made. 

42. Against this, notwithstanding the fact that no medical certificate was provided, I am satisfied that it appears to me that the child did have a sore throat.  I find the contravention made out, but I am satisfied on the balance of probability that the mother has made out a reasonable excuse.

43. Count 29, the final one, relates to 13 April 2014.  It was the father’s evidence the child had spent the Saturday 12 April with him and on 13 April, the Sunday, at 9.01 am the father texted the mother saying:

    Where is X?  You didn’t bring him to (omitted).  This was my weekend with him.  You contravened orders again.

1. He inquired again at 9.22:

   Where's X?  I am waiting.  You dropped him off yesterday on time at (omitted).  Is there a problem?  I can pick him up from your place.

2. The mother’s reply was, unhelpfully:

   Stop your games or I call the police.  I will not tell you again of your responsibilities.

3. The father said that:

   This is my weekend.

4. He apparently did not receive a reply and then inquired again:

   What dates are you allowing X to be with me this school holiday?

5. The point has been raised that this was school holiday time.  It was, in fact, the first weekend after the end of the school term at the boy’s school.  It is put, however, by the solicitor for the father that the school holidays technically did not start till the Monday, whereas Mr Reeve for the mother has pointed out that the normal view would be that the school holidays start once the term ends and that what is alleged is a breach of the wrong order;  a contravention of order 1(a) of the orders of 14 May 2012 rather than order 2(a) relating to school holidays.

6. In my view, the submission on behalf of the respondent should be preferred.  Commonsense indicates that school holidays are usually regarded as commencing once school term finishes, if that be on a Friday, even though technically one can argue that the child would not have been required to attend school on the Saturday or the Sunday.  In my view, the applicant has not made out that claim and that contravention has not been made out.

7. That, in summary, indicates that five of the nine contraventions have been made, and I am satisfied that no reasonable excuse has been established.  One has been made out with a reasonable excuse and three have not been made out.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  1 April 2015