BATES & HALLOCK
[2010] FMCAfam 692
•27 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BATES & HALLOCK | [2010] FMCAfam 692 |
| FAMILY LAW – Children – Contravention – where respondent found to have contravened two parenting orders – variation of parenting order – whether the Court should vary the primary orders. |
| Family Law Act 1975, ss.70NAC, 70NAE, 70NBA, 70NEA, 70NEB, 70NEC |
| Applicant: | MR BATES |
| Respondent: | MS HALLOCK |
| File Number: | SYC 1630 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 June 2010 |
| Date of Last Submission: | 28 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | No Solicitor on the record |
| Respondent: | The Respondent appeared in person |
ORDERS
The Respondent Mother did on 27 December 2009 without reasonable excuse contravene Order 2.9 made on 7 May 2007 by failing to allow the Applicant Father to spend time with [X] and [Y] after having been provided with not less than four weeks’ written notice.
The Respondent Mother did on 27 December 2009 without reasonable excuse contravene Order 11 made on 7 May 2007 by travelling within Australia with [X] and [Y] without having obtained the written consent of the Applicant Father or providing to the Applicant Father full contact particulars for the Children during the period in which they were travelling or a copy of the itinerary for the said Children including airline tickets.
IT IS NOTED that publication of this judgment under the pseudonym Bates & Hallock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
SYC 1630 of 2007
| MR BATES |
Applicant
And
| MS HALLOCK |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father of two little girls for findings by the Court that the Mother has without reasonable excuse breached two orders made by consent in this Court on 7th May 2007.
The Orders said to have been contravened are Orders 2.9 and 11.
Order 2.9 states:
Subject to the Husband providing the Wife with not less than 4 weeks written notice, the Children will live with the Husband during the school holidays for a period of up to, but not exceeding, one half of all school holidays in each calendar year.
Order 11 states:
Order, subject to the written consent of the other, that each party be granted leave to travel with the Children, whether within Australia or overseas, for a period not exceeding four (4) weeks in each calendar year and in that event, each party shall provide to the other:
11.1full contact particulars for the Children during the nominated period;
11.2 full particulars of any amendments to those particulars; and
11.3 a copy of the Children’s itinerary, including airline tickets.
The alleged contraventions
By his application, filed on 5th February 2010, the Father claims that the Mother contravened each of the Orders on 27th December 2009.
The first count claims that at 9:30am on 27th December 2009 at Property W, New South Wales, the Mother without reasonable excuse refused to allow the Applicant[1] to spend time with the [X] and [Y].
[1] i.e. the Father
The second count claims that at 5:00pm on 27th December 2009 at Sydney the Respondent[2] without reasonable excuse travelled interstate with the [X] and [Y] without the Applicant’s prior written consent and failed to pro vide full contact particulars for the Children during the nominated period and a copy of the Children’s itinerary, including airline tickets.
[2] i.e. the Mother
The first count claims a breach of Order 2.9 and the second count claims a breach of Order 11.
The parties’ evidence
Each party has submitted an affidavit setting out their view of the facts. Both the Father’s counsel and the Mother, who was appearing for herself, took the view that there was no real dispute about factual matters, and neither party was required for cross-examination.
In his affidavit sworn or affirmed on 4th February 2010, the Father deposes that the Mother sent him a letter dated 18th October 2009 advising that she would be taking the Children on holidays for the period commencing on 26th December 2009 and concluding on 30th December 2009. In her letter, the Mother said (relevantly):
Also please note we will be taking the Children on holiday from 26th December and will return on 30th December 2009. Details will follow in due course. This does not interfere with your time with the Children as per the orders.[3]
[3] Affidavit of Mr Bates 4.2.2010 Annexure “C”
The Father deposes that the Mother wrote to him again on 30th October 2009, saying:
Re: School Holidays Dec 09
Please be advised term 4 finishes on 16th December 2009. As per the orders please can you advise us if you wish to have time with [X] and [Y] from this date to the start of the new school year.
Also please note we are taking [X] and [Y] on holiday to the Gold Coast from the 26th December until the 5th January 2010. We will collect the girls from your house at 9am on 26th December.[4]
[4] Ibid annexure “D”
The Father wrote to the Mother on 2nd November 2009, in which he greeted her as “Dear [Ms Hallock]” and signed himself “[Mr Bates]” but, curiously, referred to himself in the third person and described himself as “our client”. The letter covered a number of issues, most of which are not relevant to this application. However, in a section headed “2. September/October holidays” the Father stated:
We are instructed that this matter is no longer relevant.
However, we note, for your clarification, that the Consent Orders do not entitle you to travel interstate or overseas with the Children unless you obtain our client’s prior written consent. Your letter of 10 September 2009 indicates that you must only notify our client of your intention to travel. This is incorrect and does not reflect the Consent Orders.
In addition, subject to our client giving consent for the Children to travel interstate or overseas, you must provide to our client:
(i)full contact particulars for the children during the time that they are away;
(ii)full particulars of any amendments to those particulars; and
(iii) a copy of the children’s itinerary, including airline tickets.
We are instructed that you have in the past failed, or refused, to comply with these requirements under the Consent Orders. Whilst our client is prepared not to take any action at this time in respect of the previous breaches of the Consent Orders, our client does reserve his rights pursuant to the Consent Orders and will take such action as he considers necessary, including making an Application to the Family Court seeking specific performance of your obligations under the Consent Orders in respect of your failure to comply with the Consent Orders in the future.[5]
[5] Affidavit of Mr Bates 4.2.2010 at Annexure “E”
In that same letter, the Father went on to state, in a section headed “Access arrangements – Christmas/New Year period 2009/2010”:
We note, for your clarification, that as a matter of construction of the Consent Orders, our client is entitled to spend up to one half of all school holidays with the Children provided that our client has given you at least 4 weeks’ written notice.
The process of our client spending time with the Children each school holidays is necessarily iterative and not one that our client has an obligation to debate with you on an ongoing basis. Your letter of 18 October 2009 proceeds from the unsound assumption that your proposed holiday commencing on 26 December 2009 does not interfere with our client’s access rights. As you are aware, this assumption is incorrect and does not reflect our client’s right’s under the Consent Orders. The fact remains that our client is entitled to spend time with the Children on any day or period during the school holidays provided that the required 4 weeks’ written notice is given to you and the time requested does not exceed one half of the school holiday period. We note, for your clarification, that our client has until Friday 20 November 2009 to notify you of the days or period during the upcoming Christmas school holidays that the Children will live with him.
Pursuant to paragraph 2.9 of the Consent Orders, your client is estopped from denying our client access with the Children over any period during the upcoming Christmas school holidays at this point of time.
In light of your client’s refusal to allow our client access to the Children during previous school holidays despite the requisite notice being provided to you, should it come to our client’s attention that you intend to act in contravention of the Consent Orders, we notify you that our client intends to make an urgent Application to the Family Court to protect the integrity of the Consent Orders in relation to his entitlement to spend additional time with the Children over the upcoming Christmas school holidays. Our client also intends to bring this letter to the attention of the Court in connection with those proceedings.[6]
[6] Affidavit of Mr Bates 4.2.2010 Annexure “E”
The Father wrote to the Mother the next day, advising her:
As previously advised, our client is entitled to spend up to one half of the school holidays of each calendar year with the Children provided that our client has given you at least 4 weeks’ written notice.
In accordance with paragraph 2.9 of the final consent orders between you and our client dated 7 May 2007 (Consent Orders) we confirm that our client will exercise his right of access to the Children during the following periods:
1. commencing after school on Friday 18 December 2009 and concluding at 8.00 am Monday 21 December 2009;
2. commencing at 9.30 am Sunday 27 December 2009 and concluding at 4.30 pm Sunday 3 January 2010; and
3. commencing at 6.30 pm Friday 15 January 2010 and concluding at 8.00 am Monday 18 January 2010.[7]
[7] Ibid at Annexure “F”
The Mother replied by means of a letter dated 13/11/09. The letter was addressed to “Dear [Mr Bates]” and signed “Kind regards – [Ms Hallock]”, but the Respondent constantly referred to herself by the pronoun “we” and referred to the Father as “your client” throughout her letter.
As to the school holiday arrangements, the Mother said:
We note your client is entitled to spend up to one half of all school holidays with the Children provided that he give[8] 4 weeks notice. We would also like to note that both parties are entitled to travel with the girls for 4 weeks of each calendar year out of state or overseas with the consent of the other parent.
As per our letter dated 07/11/2009[9] we feel that the girls should be allowed to spend as much time as possible with relatives visiting from interstate and overseas to allow them to maintain their relationships and thus we allowed additional access to the Children on 14th and 15th November to spend time with out of state relatives visiting your client.
We have given your client 9 and a half weeks notice in our letter dated 18th October with no prior notice from your client that he intends to have the girls during those dates until your client responded on 2nd November that he will not give access until 4 weeks prior to the holidays. We have then since received a letter from your client on 3rd November a full day later that he intends to have the girls on those specific dates. We would like to notify your client that we intend to travel with the girls to the gold coast to spend time with their grand parents visiting from overseas and their uncle who lives interstate. We would like to communicate our requests importance since the girls have not had the opportunity to spend time with their grandparents for over a year and are unlikely to have this opportunity again in the next several years.[10]
[8] Sic
[9] This letter is not annexed to the father’s affidavit
[10] Affidavit of Mr Bates 4.2.2010 at annexure “G”
The Father filed an Application in a Case on 13th November 2009, seeking urgent orders that the Children would live with him:
a)From after school on Friday 18th December until Monday 21st December 2009; and
b)From 4:30pm on Thursday 24th December until 9:00am Saturday 26th December 2009.
That application was not listed until 8th February 2010.
The Father wrote to the Mother on 20th November 2009, saying:
We advise that our client’s workplace, [omitted], will be closing its offices in Sydney during the Christmas period extending from 5:00pm Thursday 24 December 2009 to 8:30am Monday 4 January 2010 (inclusive).
As a result of this Christmas period closure, our client does not have any accrued annual leave other then the period during the upcoming Christmas school holidays for which he has specifically requested access to the children. Accordingly, there is no other alternative time during the upcoming Christmas school holidays other than the period specified in our letter to you dated 3 November 2009 that our client is able to have access to the children for an extended period of time…
In accordance with the Consent Orders and as previously advised, our client is entitled to spend up to one half of the school holidays of each calendar year with the Children provided that our client has given you at least 4 weeks’ written notice. Our client extended the courtesy of giving notice to you on 3 November 2009, such notice being well in advance to when he is required to do so under the Consent Orders.
The fact that you gave our client 91/2 weeks notice of your proposed holiday to the Gold Coast is irrelevant and does not prejudice our client’s entitlement to spend time with the Children over the upcoming Christmas period.[11]
[11] Affidavit of Mr Bates 4.2.2010 at Annexure “I”
The Mother replied in a letter dated 24/11/2009, quoting Order 2.9 and saying:
This order does not state that the Husband be given the authority to overrule any plans which the Wife has advised him on prior to the minimum 4 weeks notice which he is to give. Therefore we do not agree to the time requested to have the children from the 27th December 2009 until the 3rd January 2010.
Considering we gave you 91/2/ weeks notice of our holidays arrangements and now would only be able to change the itinerary at a cost of $1,000.00 which is unacceptable. Please be advised we will not disappoint the Children and will be taking them on the holiday.[12]
[12] Ibid at Annexure “J”
The Father wrote to the Mother on 27th November 2009, saying (inter alia):
Consent Order 2.9 does not operate in the manner in which you perceive it to operate, that is, first notice shall prevail over all subsequent notices.
As a matter of construction of consent Order 2.9, you are obliged to allow our client, as the non-custodial parent, to determine what time, if any, he intends to spend with the Children during school holidays and give notice to you of the designated time at least 4 weeks prior to the commencement of the relevant school holidays. If our client fails to give the required written notice on time (i.e. at least 4 weeks prior to the commencement of the relevant school holidays), then only at that point you may, in your absolute discretion, make plans with the Children for the school holidays without any further consultation with our client (unless travelling interstate or overseas in which case our client’s prior written consent is also required).
As indicated in previous correspondence, the mere fact that you gave notice to our client prior to our client giving you notice does not automatically relinquish our client’s rights under Consent Order 2.9.[13]
[13] Affidavit of Mr Bates 4.2.2010 at Annexure “K”
The Mother’s letter in reply dated 1st December 2009 is annexed to the Father’s affidavit. In that letter she said:
We advise you make urgent application to the Family Court in regard to the school holiday arrangements, so that the mater can be decided that way.
We do not agree to your request to have the Children on the dates 27th December 2009 to 3rd January 2010 and intend to take them on our planned holiday.[14]
[14] Ibid at Annexure “L”
The Father deposed that he wrote to the Registrar of this Court (not the Family Court) seeking a review of his Application in a Case on
8th December 2009, but his application for review was dismissed on
9th December 2009.[15]
[15] Ibid at paragraph [21]
After his application for review was dismissed, the Father deposed that he decided not to seek to collect the Children on 27th December 2009:
“…having regard to the unnecessary distress and upset a confrontation with the Respondent would cause to the Children, I determined (most regrettably) that it would be in the best interests of the Children to not collect them on that date.[16]
[16] Ibid at [22]
The Father went on to depose that:
On 27 December 2009, the Respondent then travelled interstate with the Children without my prior written consent and without providing full contact particulars for the Children or providing to me a copy of the Children’s itinerary.[17]
[17] Affidavit of Mr Bates at [23]
In her affidavit of 10th June 2010, the Mother annexes copies of the following:
a)The consent Orders made in this Court on 7th May 2007;
b)Her letter to the father of 18th October 2009;
c)Her letter of 30th October 2009;
d)The Father’s letter to her of 2nd November 2009;
e)The Father’s letter to her of 3rd November 2009;
f)Her letter to the father of 7th November 2009;
g)Her letter of 13th November 2009;
h)The Father’s letter to her of 20th November 2009;
i)Her letter to the Father of 24th November 2009;
j)The Father’s letter to her of 27th November 2009; and
k)Her letter to the Father of 1st December 2009.
Copies of all those letters were annexed to the Father’s affidavit, with the exception of the Mother’s letter to the Father dated 7th November 2009. That letter referred to the Father’s request for additional time with the Children on 14th and 15th November, which had been raised in the Father’s letter of 2nd November 2009. In that letter, the Mother agreed to the Father’s request.
Submissions
Mr Dura of counsel, who appeared for the Father, submitted that the Mother had contravened both orders. He told the Court that the Father sought that the contraventions should be found proved but he did not seek a sanction; rather, he sought that the orders should be clarified. He submitted that this would need the Court to make a slight variation of the orders. At least, Order 2.09 as it stood at the time needed to be varied.
The Mother submitted there was an issue as to which parent has first preference as to school holiday time. If she wants to take the children overseas or interstate, does she then have to wait for 6 weeks until the Father puts in his bid before she makes any arrangements?
The relevant law
Contravention is defined by s.70NAC of the Family Law Act 1975. where a person is bound by an order, he or she contravenes the order when he or she has:
a)Intentionally failed to comply with the order; or
b)Made no reasonable attempt to comply with the order (s.70NAC(a)).
An applicant in contravention proceedings must show that:
a)There is an order in existence; and
b)The Respondent has contravened that order (s.70NEA(1)).
Once the contravention has been proved, it is up to the Respondent to show that he or she had a reasonable excuse for contravening the order (s.70NEA(1)(c)). The Applicant is not required to disprove that the Respondent had a reasonable excuse.
Once the contravention has been established and the Court is satisfied that the Respondent does not have a reasonable excuse, the Court will decide whether to deal with the matter under Stage 2 of the three-stage regime prescribed by the Act, or whether Stage 2 does not apply (s.70NEA(4)). Stage 2 has both an educative and a compensatory function. It is appropriate where a party has not contravened the order before, although there may be occasions where the first breach may be of such seriousness that Stage 3 should be applied.
If the Court is satisfied that the Stage 2 procedure is appropriate, the Court may exercise all or any of the powers set out in s.70NEB(1). Those powers are:
a)Directing the Respondent to attend a post-separation parenting program;
b)Making a further parenting order compensating the Applicant for the time not spent with the child or children;
c)Adjourning the proceedings to allow a party to apply to discharge, vary or suspend the primary order;
d)Ordering the respondent to enter into a bond in accordance with s.70NEC;
e)Making an order for monetary compensation;
f)Making an order for costs against the respondent.
Consideration
Order 2.9 provides:
Subject to the Husband providing the Wife with not less than 4 weeks written notice, the children will live with the Husband during the school holidays for a period of up to, but not exceeding, one half of all school holidays in each calendar year.
The order must be seen in its context. Order 2 essentially sets out the times when the Children will live with the Father, as order 4 provides that the Children will “otherwise live with the Wife”. The Mother has complained that the Father’s interpretation of order 2.9 would allow him to overrule her previous arrangements for the Children if he gives her the notice provided by Order 2.9.
That is exactly what Order 2.9 does. Notwithstanding the fact that the Mother informed the father in her letter of 18th October 2009 of her plans to take the Children on holiday from 26th to 30th December 2009, that letter did not affect the Father’s right under the order to nominate a period of time during the school holidays not exceeding half of those holidays, on his providing the Mother with not less than four weeks’ written notice. Under the order, the Father had until 19th November 2009 to give notice that he wanted the Children to live with him for a period of time during the Christmas/January school holidays.
In my view, the period of not less than four weeks’ written notice must be interpreted as being from the start of the school holiday period rather than four weeks from the time when the Father wishes the Children to live with him. The school term concluded on
16th December 2009, according to the Mother’s letter to the Father of 30th October 2009. The Father noted in his letter to the Mother of
2nd November 2009 that he had until Friday 20th November to notify her. As I stated, if the school term came to an end on 16th December, so the Father had until 19th November to notify the Mother.
The difference of one day is immaterial in the circumstances, as the Father indicated in his letter of 3rd November 2009 that he wanted the Children to live with him for various times in December 2009 and January 2010, in particular the period from Sunday 27th December 2009 to Sunday 3rd January 2010.
Thus, the Father complied with the period of notice required by Order 2.9 and he was entitled to expect that the Children would spend that time with him. They did not do so.
I find that there is a contravention of Order 2.9 by the Mother.
Order 11 provides that, subject to the written consent of the other party, each party is to be permitted to travel with the Children, whether within Australia or overseas, for a period not exceeding four weeks in each year, providing that each party provides to the other:
·Full contact particulars for the Children during the nominated period;
·Full particulars of any amendments to those particulars;
·A copy of the Children’s itinerary, including airline tickets.
The Mother advised the Father in her letter of 18th October 2009 of her intention to take the Children “on holiday” from 26th December to
30th December 2009. No other details were given.
In her letter of the 30th October 2009, the Mother advised the Father of her intention to take the Children “on holiday to the Gold Coast from the 26th December until the 5th January 2010”. No further details were provided.
The Mother did not provide full contact particulars for the Children during the nominated period, nor did she provide a copy of the Children’s itinerary or airline tickets.
The terms of the order are clear. The Mother needed to have the Father’s written consent, which was not forthcoming, and provide the other details required by Order 11, which she did not do.
I find that there is a contravention of Order 11 by the Mother.
I might comment that the terms of Order 11 are very restrictive. They do not just apply to travel overseas or interstate, but to travel “within Australia or overseas”. This means that a party wishing to take the Children to a destination within the State of New South Wales, such as Newcastle or Wollongong, would need to seek the other’s written consent. This may not be what the parties intended, but that is what the order means. It is an order made by consent, in a document they both signed, when they were both legally represented.
Reasonable excuse
There are essentially two categories of reasonable excuse provided by s.70NAE of the Act, although the list is not exhaustive. First, a person has a reasonable excuse if he or she did not understand the obligations imposed by the order and the Court is satisfied that the Respondent ought to be excused (s.70NAE(2)).
Second, a person has a reasonable excuse if he or she believed on reasonable grounds that not allowing the child or children to spend time with or communicate with the other person was necessary to protect the health and safety of the person, the child or children, or someone else and the period of the contravention was not for longer than was reasonably necessary (s.70NAE(3)-(7)).
Conclusions
It would appear that the Mother may not have understood the obligations imposed on her by Order 2.9, judging from her letters to the Father of 24th November and 1st December 2009. However, the Court still must decide whether the Mother ought to be excused in respect of the contravention. As I stated at [48] above, the parties were legally represented when they entered into these consent orders. The Mother’s legal advisers should have satisfied themselves that she understood the meaning of the orders when she signed them.
I find that the Mother does not have a reasonable excuse for contravening Order 2.9.
The terms of Order 11 are clear, if somewhat far-reaching. Whilst it is easy to see why the parties would see the need to require the other party’s written consent to take the Children out of the jurisdiction, even though s.65Y of the Act already prohibits parties from doing so in any event, it is not so easy to see why the parties found it necessary to enter into orders requiring the other party’s permission to travel with the Children to any destination within Australia. The orders, if interpreted strictly, would apply to something as simple as a trip to Brisbane for a weekend.
The Mother took the Children to the Gold Coast and did not comply with the requirements of Order 11. Again, the Mother was legally represented when she entered into the Consent Orders. There is nothing to indicate that the Mother did not understand the obligations imposed by the order.
I find that the Mother does not have a reasonable excuse for contravening Order 11.
Variation of Parenting Order
Under s.70NBA (1) a Court may make an order varying the primary order if it is alleged in contravention proceedings that a person committed a contravention of the primary order and either does or does not find that the person committed a contravention of that order.
Counsel for the Father submitted that the Father did not seek the imposition of a sanction but rather a clarification of the orders, leading to an appropriate variation of Order 2.9.
There is no evidence that the Mother has previously contravened either of the primary orders and it appears clear that the Stage 2 procedure is appropriate.
I consider that the parties should consider the effect of Order 2.9 and 11 as they currently stand, and endeavour to ascertain whether the orders need to be varied, for the benefit of both the parties and the Children. The relationship between the parties is clearly strained at present, as witness the correspondence between them annexed to their affidavits.
Possible ways in which Order 2.9 might be varied in order to reduce controversy between the parties would be to stipulate a period of time during the Christmas holidays when the Children would always be with the Father, perhaps from Boxing Day through to New Year’s Day or the day after, so that the parties would always be aware that this time should be set aside for the Father, and that he should nominate other times by giving notice as already provided.
The Mother has a point, however, when she suggests that the period of notice to be given by the Father, namely four weeks, is too short to allow her to make her own plans for holidays in Christmas and January. If either party is planning to take the Children away for a holiday in another State or overseas, it may be necessary to make those plans a couple of months or more out, in order to book accommodation and airline flights. If Order 2.9 means, as I have found, that the Father has the Children for the nominated time in the holidays if he gives the requisite period of notice, then the period of notice might need to be increased to something like two or three months.
Order 11 appears to me to be unnecessarily restrictive on the parties, and it is difficult to see why they consented to the order in those terms in the first place. Why a party needs to obtain the other party’s written consent to travel with the Children within Australia, let alone within the State, is difficult to understand.
Now that the contraventions have been established and the meaning of the Orders has been clarified, it would appear that the parties should be given the opportunity to make submissions about what, if any, variations should be made to the primary orders.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 5 July 2010
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