BBD and CSL
[2003] FMCAfam 523
•31 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BBD & CSL | [2003] FMCAfam 523 |
| FAMILY LAW – Children – contravention of contact order – whether reasonable excuse. PRACTICE AND PROCEDURE – No case submission. Family Law Act 1975 (Cth), ss.60B; 70NC; 70NE(1A); 70NE; 70NF; 70NG; 117. Reilly (1995) 19 Fam LR 213; FLC 92-616 |
| Applicant: | B D B |
| Respondent: | S L C |
| File No: | PAM 2660 of 2001 |
| Delivered on: | 31 October 2003 |
| Delivered at: | Parramatta |
| Hearing date: | 31 October 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitors for the Applicant: | Ian Bullock & Partners |
| Solicitor for the Respondent: | Mr McKay |
| Solicitors for the Respondent: | Malouf Solicitors |
ORDERS
Counts numbers 1, 2 and 3 of the Application filed on the 2nd July 2003 alleging that the Respondent did on the 7th March, 21st March and 16th May 2003 contravene Order 1(a) made by consent on the 8th October 2002 are dismissed.
Count number 4 of the said Application alleging that the Respondent contravened the said Order on the 30th May 2003 is found proved.
Count number 5 of the said Application alleging that the respondent contravened the said Order on the 13th June 2003 is found proved;
The Respondent has not proved that she had a reasonable excuse for the said contraventions.
The Respondent is to pay the Applicant's costs in the sum of one thousand ($1000) within nine (9) months of the from the date of these Orders.
Pursuant to section 70NG(1)(b) of the Family Law Act 1975, the Applicant Father is to have contact with the children C W B born 3 March 1996 and G R B born 20 December 1997 for a period of four (4) days during the month of January 2004 in addition to the school holiday contact otherwise provided by Order 1(b) made by consent on the 8th October 2002.
Pursuant to section 70NG(1)(c) of the Family Law Act 1975, I grant either party liberty to apply to vary, discharge or suspend the Orders made by consent on the 8th October 2002.
The Application is adjourned to Monday 24 November 2003 at 10.00am for further mention.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2260 of 2001
| B D B |
Applicant
And
| S L C |
Respondent
REASONS FOR JUDGMENT
Application
The application before the Court is an application by the father of two children to deal with the mother for contraventions which he alleges have taken place in respect of orders that were made by consent in this Court on the 8th October 2002.
On that day, after some discussions between the parties and their then legal advisers, some Minutes of Order were handed up and orders were made accordingly. The orders were drafted as residence orders although the primary caregiver of the children is clearly expressed to be the respondent.
The order which is alleged to have been contravened in its relevant parts is as follows:
(1)The children of the marriage, C W B, born 3 March 1996 and G Renae Baxter, born 20 December 1997, reside with the husband as follows:
(a) on each second weekend from 6.30 pm Friday to 6.30 pm Sunday or up to one half of each school holiday period.
There are times for those school holiday periods which are not relevant to the application before me.
The applicant alleges that the orders were contravened on the 7th March, 21st March, 16th May, 30th May and the 13th June 2003. In each case he deposed in his affidavit that he arrived at the contact changeover point, being the Police Station at P in the State of New South Wales, at the appropriate time, but neither the respondent nor the children attended and notwithstanding the fact that he waited for a considerable period of time on each occasion the children never appeared and contact did not take place on those weekends. The respondent has given oral evidence in reply.
It is certainly the situation where it has been most strongly put by Mr McKay, solicitor for the respondent, that there has been confusion between the parties as to the appropriate dates when the sequence of weekend contact during school terms was to commence and that it appears that the parties' arrangements were, to use his expression, “out of kilter”.
It was submitted in fact that, at the conclusion of the applicant’s case, that there was no case to answer.
I ruled today that I was satisfied that there was a case to answer. The reason for that was the fact that it is been held that proceedings of this nature are ones to which the civil standard applies under section 140 of the Evidence Act and I relied on the authority of the decisions of the Family Court of Australia in Reilly (1995) 19 Fam LR 213, FLC 92-616 and the decision of the Full Court of the Family Court in Lindsey (1995) 19 Fam LR 649, FLC 92‑638 that it was still appropriate to make a submission that there was no case to answer.
I further held that where there was evidence upon which a Court could be satisfied, taking the applicant’s case at its highest and disregarding considerations favourable to the respondent that may appear in that case which would lead to a finding on the requisite civil standard that a contravention had been made out, that it was appropriate to find that there was a prima facie case.
I further ruled that where there was evidence consistent with a finding of a contravention of the order there was also evidence consistent with a finding that a contravention had not been proved, that it was inappropriate to find that there was no prima facie case as it is possible, upon hearing all of the evidence, for the Tribunal of fact to prefer the version consistent with a finding that there had been a contravention. Accordingly, the mother gave evidence.
The situation clearly is that the orders which were prepared by the parties' then legal advisers were somewhat sparse in their details as to commencement dates and I would comment that neither of the practitioners who appeared today were the drafters of the orders which have been the cause of such controversy.
I have had copies of correspondence between the parties tendered in evidence and that correspondence is quite illuminating. Exhibit 1 is a copy of a calendar prepared by the applicant father setting out the dates when he believed that contact should take place or that the children should be with him and setting out the dates when he believed that the children should be with the respondent. I note that on the dates in question, 7th and 21st March, 16th and 30th May and 30th June, that the applicant’s calendar indicates that in his view the children should have been with him.
Exhibit 2 is a copy of the letter forwarded by the applicant to the respondent dated 25th May 2003 in which he recites that he included a copy of the calendar that was exhibit 1.
Exhibit 3 is the original of the letter to which a copy of the calendar has been annexed. It comes complete with the envelope addressed to the respondent and it clearly bears a date, 28th May 2003. I note that the 25th May was a Sunday and the 28th May was a Wednesday.
There was other correspondence. Exhibit 4 is an undated letter from the respondent to the applicant referring to his letter of the 21st April. The original of that letter in fact is before the Court marked as exhibit 7. There is also a letter of the 9th April marked exhibit 5 from the applicant to the respondent complaining of difficulties relating to contact, and for completeness I would note that I admitted into evidence as exhibit 6 a photocopy of several cards received by the respondent from various police officers on different dates indicating that she had visited the relevant police station at those times.
The respondent’s evidence is that she left the Court having executed the Minutes of the Orders and having received advice from the counsel who then appeared for her with a view as to when the sequence of contact was to start and she was certainly of the view that this had been explained to her by her counsel.
There was no affidavit evidence from the counsel nor did he give evidence orally. She indicated that she had made a note of those dates in her diary. Unfortunately the diary was not produced as she conceded in the witness box that she had left it at home.
The respondent commented, not inappropriately, that the applicant had also been vague in his accounts of dates when contact had taken place in January, February and March of this year and he too had left his diary at home.
The situation seems to have been that on some occasions in the earlier part of the year contact took place in accordance with what appeared to be the applicant’s understanding of the appropriate weekends, but at some stage that appeared to get out of synchronisation. I note that contact has got back on track according to what the applicant says is the appropriate dates. It is noteworthy that the applicant was confused as to the date of school holiday contact as provided by the orders and consequently contact did not take place during the school holidays, although that is not a matter for this Court to determine today. There was no contravention alleged.
The correspondence, which forms the exhibits, does not always specify with precision the situation relating to contact on weekends. Exhibit 5 of the applicant’s letter to the respondent dated the 9th April, refers to proposed contact during the school holidays saying:
“I will be having my children as per the current orders between April 11th and April 19th, being one half of the holidays”.
There is evidence before me that that was incorrect.
The applicant’s letter to the respondent of the 21st April again refers to school holiday contact by saying:
“I note that you have breached orders yet again by failing to facilitate access as per the orders of the April holidays”.
The respondent replied to that on the 21st April by saying:
“The claims made that I have breached the orders are quite untrue as C and G were present at P Police Station on Friday, 18th April 2003. We waited until 7 pm before departing”.
The letter goes on in the second last paragraph to say:
“It would be greatly appreciated if you would forward details of your current address, contact details, details of the arrangements made to accommodate the children and with a list of the coming dates you that will be in P to collect the children in accordance with the Court orders”.
The final paragraph says:
“Please note that Sunday, 11th May, is Mother’s Day. As such, and in accordance with the orders, the children are to be with me on Sunday”.
It was after that letter was forwarded that the applicant sent his letter of the 25th May, although post marked the 28th May, containing the calendar.
Mr McKay has submitted to me that the reference in the mother’s letter to Sunday 11th May being Mother’s Day, indicates a belief that the particular weekend would otherwise be a weekend when the father was entitled to contact under the orders, which would indicate that there was certainly a difference of opinion or a genuine mistake on the part of one or other party as to when the contact weekends were.
Mr Schroder, of counsel for the father, submits that that is not an interpretation that I should draw from the letter. He submitted to me that the absence of evidence from the mother’s former legal adviser is a matter to which the Court should be mindful of the decision of the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298 and to draw the inference that where there is an unexplained absence of a witness whom a party would normally be expected to call, that unexplained absence can be taken by the Court to infer that that person’s evidence would not have taken the case of that party any further than it otherwise was.
I am of a view that the mother’s letter, a copy of which is exhibit 4, is evidence of a misunderstanding between the parties as to when contact took place. I am mindful of the fact that the mother gave oral evidence that for some reason she did not actually receive a copy of the orders until the month of March.
It is significant, however, that whilst the mother’s letter is undated, it was clearly written between the 21st April, or after the 21st April, and before the 11th May. In that letter the respondent makes it clear:
“It would be greatly appreciated if you would forward details of your current address with a list of the coming dates that you’ll be in P to collect the children in accordance with the Court orders”.
I take that quite clearly as a request by the mother for a clarification as to the applicant’s view as to when contact should happen and by means of the letter of the 25th May with the calendar, the applicant set out what he understood the situation to be.
It is set out in section 70NC of the Family Law Act the meaning of contravening an order. Paragraph (a) says:
“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”.
Section 70NE sets out the meaning of a “reasonable excuse” for contravening an order and the subsection 70NE(1)(a)gives as an example where:
“A person is taken to have had a reasonable excuse for contravening an order under this Act affecting then 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 to be excused in respect of the contravention”.
Section 70NF(1)(ba) places on the respondent an obligation to prove that he or she had a reasonable excuse for the current contravention. Section 70NEA makes it clear that the standard of proof of reasonable excuse is proof on the balance of probabilities.
I am also mindful of the provisions of section 140 of the Evidence Act 1995, which refers to the standard of proof. Subsection (2) says:
Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
I am mindful that these are contravention proceedings and that a finding by the Court of a contravention without reasonable excuse can lead to orders being made against a respondent.
Accordingly, in respect of the contraventions of the orders that are set out in counts 1, 2 and 3, which are the contraventions alleged to have taken place on the 7th March, 21st March and the 16th May. I am satisfied that contact did not take place and that the orders have been contravened. I am also convinced that the respondent had a reasonable excuse for those contraventions. Notwithstanding the fact that she said she had the orders explained to her by her counsel, there is evidence that she did not receive a copy of the orders until some unspecified date in March and I am mindful of the letter from the respondent to the applicant, that is exhibit 4, which makes it clear that there was a confusion in her mind as to what the applicant believed were the appropriate dates, hence her request for a list of the dates that the applicant understood to be appropriate. It is for those reasons that I am satisfied that the respondent has proved that she had a reasonable excuse in respect of each of those matters.
What then should I make of the contraventions that are alleged to have take place on the 30th May and the 13th June? Mr Schroder, of counsel, has submitted that the Court would have no difficulty in finding breaches of the 30th May and the 13th June proved.
In opposition to this, Mr McKay submitted that the Court could not be satisfied that the letter containing the calendar had been received by the respondent by the 30th May and that even if it had, was there an obligation on the respondent to take some steps in reply.
I am mindful of the fact that the letter was dated the 28th May, forwarded from O to B. The Court can take into account that in the ordinary course of post a letter from one part of New South Wales to another would have been received within 2 days. This is a matter of common knowledge as set out in section 144 of the Evidence Act.
What is the obligation on the respondent in respect of those two matters? The evidence shows that the respondent was, by the date of those two incidents, aware that the applicant believed from his calendar that those were the dates when contact should take place.
Is it sufficient for a respondent to do no more than accept the fact that the dates are wrong and to maintain the correct dates? The answer to that, to my mind, quite clearly is no. I am mindful of the decision of the Full Court of the Family Court in the matter of Stavros (1984) FLC 91‑562, 9 Fam LR 1025. In that case it was held that it is implicit in an access order, to use the old terminology drafted in the manner of the order in question, that there is an obligation cast upon the custodian spouse to take reasonable steps to deliver the child to the access spouse at the commencement of the access period.
This decision was referred to with approval by Fogarty and Nygh JJ with whom Gun J agreed in the decision of Stevenson v Hughes (1993) FLC 92-363. To use the old terminology, Their Honours held that:
“Access orders impose a positive obligation to encourage access. A reasonable attempt to ensure compliance is required”.
In this case it is not sufficient for a respondent to say, “Oh, well, the applicant’s got the dates wrong, well, contact will not take place”. The reason why there is a positive obligation on the respondent is that contact in the circumstances or shared residence is not just a right of the person in whose favour the order has been made.
Section 60B of the Family Law Act makes it clear that, subject to the principle of the best interests of the children being paramount, that children have a right to have contact with both parents and with other people significant to their care, welfare and development. If the party who is expecting to have contact has got the dates wrong and the party with whom the children reside is aware of that fact, there is a positive obligation to say, “Look, there is a misunderstanding about dates”. The resident parent cannot just sit back and do nothing on having been made clearly aware that there is this misunderstanding and I am of a view that as and from the receipt of the applicant’s letter dated the 25th May, together with the calendar, that there was such clear knowledge on the part of the respondent.
I propose to deal with the matter under stage 2 of the Parenting Compliance regime and that leaves me with a range of orders of which I can make all or any under section 70NG post separation parenting program, compensatory contact, or allowing an adjournment to vary or suspend or discharge the primary order.
It is for these reasons that I propose to make the Orders set out at the commencement of this decision.
I grant liberty to either party to apply to vary or discharge or suspend the orders made by consent on 8 October.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 19 November 2003
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