Barton and Lasloe

[2008] FamCA 152

FAMILY COURT OF AUSTRALIA

BARTON & LASLOE [2008] FamCA 152

FAMILY LAW – CONTRAVENTION – Application by husband of a trivial nature in circumstances where his institution of the proceedings demonstrated impatience – Although contravention made out, application dismissed and no penalty recorded.

Family Law Act 1975 (Cth) (as amended) s 112AB(1) and s 112AC(2)
Family Law Rules 2004 (as amended) Rule 21.08
Evidence Act 1995 (Cth) s 140(1)

Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANT: Mr Barton

RESPONDENT: Ms Lasloe

FILE NUMBER: MLC 10091 of 2007

DATE DELIVERED: 3 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 3 March 2008

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the said Application filed on 15 February 2008 be otherwise dismissed AND THAT no penalty be imposed.

2. That the ex tempore judgment delivered this day be transcribed and when transcribed a copy be placed on the Court file and made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10091  of 2007

Mr Barton

Applicant

And

Ms Lasloe

Respondent

REASONS FOR JUDGMENT

1. I have before me a contravention application brought by the father and filed on 15 February 2008.  The application is carefully drawn, and alleges that the respondent, the mother, failed to "ensure and facilitate the child […] who was born […] August 1999 telephoning him either between 7.30 am and 8 am on the scheduled day or after school that day but prior to 7 pm."  The application is supported by an affidavit in short form in which the applicant claimed that at 7.08 pm on Thursday 14 February 2008 he endeavoured to telephone his daughter in accordance with paragraph 4(c) of the orders of 30 November 2007.  He deposed that the phone was unanswered and that he left a message advising he had telephoned to speak to the child.  He then pleaded the fact of the alleged contravention.

2. Paragraph 4 of the orders made by Senior Registrar FitzGibbon on 30 November 2007 are part made by consent and part by order of the court.  Those orders deal with the applicant's contact with his daughter, and by paragraph 4 certain orders were made by consent concerning what I could describe as the holiday periods.  That paragraph however goes on to provide for orders made by the court in the following terms:

   “(c)By telephone each Monday and Thursday and on the said child's birthday between 7.00 and 7.30 pm with the father to phone the said child at the mother's home;

   (i)Except in the event that the said child is to be unavailable for phone contact that the mother ensure and facilitate the said child telephoning her father either between 7.30 am and 8.00 am on the scheduled day or after school that day but prior to 7.00 pm.”

3. At the commencement of the proceedings this day I explained to the respondent the procedural disposition for the hearing. She was informed of the allegation pursuant to Rule 21.08 of the Family Law Rules 2004 (as amended) and asked whether she wished to admit or deny the fact. In response, it seemed to me appropriate to take a plea of not guilty in the light of her explanation of what happened on the day it is alleged the contravention occurred. In the circumstances, and given that both the applicant and the respondent were appearing in person, I conducted the procedural disposition of the hearing this day precisely in accordance with Rule 21.08.

4. Both the parties gave evidence.  The evidence of the applicant was to affirm his affidavit as being true and correct.  He was somewhat colourful in his use of descriptive terminology referable to the wife, describing her evidence in paragraphs 1 and 2 of her affidavit as "possibly dishonest", and otherwise paragraph 3 of her affidavit as being "an outright lie".  Much of the material deposed in the respondent’s affidavit was irrelevant to the central thrust of the allegation.  I made it clear to both parties that I was dealing with the events of the contravention alleged to have occurred on 14 February 2007.  Events prior and subsequent thereto may be, if appropriate, matters of narrative record and at best going to penalty. 

5. I have listened carefully to the matters complained of by the applicant in the course of his oral evidence which were largely in denial of what the respondent deposed to in her affidavit.  It appears that in the result he did speak to the child, as he said, at 7 pm on Saturday 16 February 2008 highlighting, in his words, “48 hours later”.

6. The respondent caused to be filed her affidavit, relied upon it in court and gave evidence before me.  Her evidence was that she left from western Victoria with their eldest son on Wednesday 13 February 2008 in order to travel to Melbourne and to accompany him to his final entrance interview with his new employer.  She deposed that as this son was only just turning 17 on 23 April 2008, and he was the last of her children leaving home, his acceptance into the army and imminent departure gave rise to "some very strong emotions" for the family.  I accept that such was the case. 

7. The respondent further deposed that she did not return home to western Victoria until 9 pm Thursday, 14 February 2008 when she collected the child from a family with whom she had been left prior to her departure to Melbourne on 13 February 2008.  She denied that the applicant left a message on the home telephone.  On the other hand, the applicant claims he did.  In the whole of the circumstances I do not think it is necessary for me to make a finding one way or the other on this issue. 

8. The respondent complained for example that the child attempted to telephone her father at approximately 8 am on Friday, 15 February 2008, but the telephone rang out without going to a message bank.  In the course of his evidence the applicant said that could not be so, because he has a message bank and if a call had been made, it would have been recorded as such.  Again, it seems to me that in the whole of the circumstances it is not important that I find one way or the other as to whose version is correct on that issue. 

9. In any event the respondent deposed that the child attempted to call her father back on Saturday morning and finally made a connection later that afternoon and during which they had a lengthy conversation lasting in excess of 30 minutes.  In her affidavit, she went on to depose:

   “6.It should be noted that, as per the court order of 30/11/07, point 4)c)(i) [the child] had until 7 pm on Friday February 15th to return [the father’s] call.  However, [the father] filed his Application for Contravention and Affidavit on the day of February 15th before the expiration of the time, THUS pre-empting any contravention.”

10. In relation to that, the applicant said that he filed his application about midday on 15 February 2008.  It is plain to me that the respondent had misread the terms of the order, and that her belief as described in paragraph 6 of her affidavit is quite mistaken.  There are other matters referred to in the affidavit of the respondent that are not relevant to the application before me.

11. The Family Law Amendment (Shared Parental Responsibility) Act 2006 enacted a new Division, being 13A of Part VII of the Family Law Act 1975 (as amended) (“the Act”). That division deals with proceedings for contravention of a child related order. Subdivision A of the new Division 13A contains a simplified outline of the Division and provides for the application of the Division and defines "contravened an order", (see, section 112AB(1)) and "reasonable excuse", (see, section 112AC(2)).  It is noted that definitions have generally been moved to section 4 of the Act, but some terms are defined by reference to a section elsewhere.

12. Subdivision B of the Act also confers power to vary a primary order in all contravention cases under Division 13A whether or not a contravention is established.  The phrase "primary order" is defined in section 4.  It is the order to which a Division 13A contravention case relates.  Subdivision E prescribes the court's powers in addition to the power to vary subdivision B for less serious contraventions without reasonable excuse.  Subdivision F sets out the court's powers in addition to the power to vary the subdivision B for more serious contraventions without reasonable excuse. 

13. Accordingly, a court may vary an order under the Act affecting children in any case where it is alleged a person contravened the order, whether or not the court is satisfied of the contravention.  If an order being varied is a parenting order, then the order varying is also a parenting order, and section 60CA of the Act, that is “the best interests” of the child being paramount, applies.  I only raised the issue of the capacity for the court to vary a court order in the event that a variation may be an answer to the problem confronting both of them.  They did not seem to grasp that concept with any show of enthusiasm.

14. Subdivision E of the Act, as I have said, deals with less serious contravention without reasonable excuse.  Under the new Division 13A for less serious contraventions without reasonable excuse, I may vary the order contravened and require the respondent (or subject to conditions both respondent and the applicant) to attend a post-separation parenting program, make a compensatory parenting order, adjourn the contravention proceedings to allow either or both parties to apply to discharge, vary or suspend the relevant order or to revive an earlier parenting order.  I may also require the respondent to enter into a bond, compensate a person for all or some expense and make a costs order.  I note that before requiring a party to attend a post-separation parenting program, I must consider seeking the advice of a family consultant about the services appropriate to the party's needs.  I just raise these various options in order to make it clear that I have addressed my attention to the various alternatives that are available to me. 

15. Section 70NAF of the Act deals with the standard of proof.  Subsection (1) provides that:

    “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.”

16. That standard, which is known as the requisite standard of persuasion, is also prescribed in section 140(1) of the Commonwealth Evidence Act 1995 and is in effect a statutory prescription of the rule laid down by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. Accordingly, in coming to my determination on this issue, I have regard to the contents of the affidavit material filed by the parties and their oral evidence given before me this day.

17. For the clarification of the parties, it seems to me appropriate to record into these short extempore remarks the objects and principles underlying Part VII of the Act when dealing with the welfare provisions.  Section 60B(1) provides that the objects are to ensure that the best interests of the children are being met, and goes on to set out the underlying principles.  It is plain that the child has a right to know and be cared for by both her parents.  She has a right to spend time on a regular basis with and communicate on a regular basis with both her parents and other people significant to her care welfare and development.  The principles also provide that parents jointly share duties and responsibilities concerning the care, welfare and development of their children, and should agree about their future parenting.

18. The applicant was somewhat emotional in the giving of his evidence and submissions, referring to various parts of the wife's affidavit to which I have earlier alluded.  The respondent presented herself in a calm and dignified manner and was prepared to make concessions when it was appropriate to do so.  It appears to me that whilst there is an explanation for the respondent’s inactivity and not advising the husband that the child would not be available to take his phone call on 14 February 2008, and that her attention was diverted by the emotional circumstances surrounding their son leaving home, there was notwithstanding an opportunity to simply advise him of the events of 13 and 14 February 2008 which may have alleviated the proceedings this day.  For example an SMS message would have sufficed.

19. It is clear that the respondent's understanding of the terms of the relevant order was incorrect, and that more diligence in reading paragraph 4(c) would have led her to that realisation.  Equally so, if the applicant had been a little more patient and understanding of her situation and their son, drawn breath and not immediately instituted proceedings as he did the next day at midday, he would have had the opportunity to speak to the child (as he did later on the Saturday) and pour some oil on the troubled waters.  By then however, it was too late, for he had taken precipitate action.

20. I would expect greater forbearance and thoughtfulness in the future and more cooperation from each party with the other.  Whilst I am satisfied there was no reasonable excuse and that the contravention is made out, and notwithstanding the principles to which I have carefully referred, I do not see, by any measure, it to be appropriate to impose any penalty, even a bond as sought by the applicant.  The whole of the circumstances surrounding this allegation compels me to this result which is an exercise of my unfettered discretion.

21. I do not propose to impose a penalty in the discrete circumstances before me.  The continued operation of the orders of 30 November 2007 may only work with the spirit of cooperation and understanding between the parties and not that of unholy warfare.  Had both parties exercised greater introspection, cooperation and understanding, these proceedings could well have been avoided.  I will simply record that the contravention is made out and dismiss the application without penalty.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  13 March 2008.