Bedford & Anor and Lee

[2011] FamCA 1045

FAMILY COURT OF AUSTRALIA

BEDFORD AND ANOR & LEE [2011] FamCA 1045

FAMILY LAW – Contravention:  reasonable excuse.  Meaning of “taking an action” in s 70NEA.

Family Law Act 1975 (Cth)

1st APPLICANT: Ms Bedford

2nd APPLICANT: Mr Bedford

RESPONDENT: Ms Lee

FILE NUMBER: MLC 6550 of 2008

DATE DELIVERED: 9 September 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 September 2011

REPRESENTATION

1ST APPLICANT: In person

2ND APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the contraventions alleged in respect of 3 August 2011 and 17 August 2011 are proved.

2. That the contraventions fall within the less serious category but without reasonable excuse.

3. That the mother and the grandmother attend a post-separation parenting program (or a mediation of a similar nature) as foreshadowed in the minutes relating to the dispute between the mother and the father as annexed before 5 December 2011.

4. That paragraph 2 of the minutes attached to the order made on 28 August 2009 is varied until further order such that the changeover in respect of the child the child on Wednesday shall commence at the Suburb E  Railway Station at 8.00am and conclude there at 4.00pm and on Saturday at the F Railway Station at 11.00am and conclude there at 4.00pm.

5. That all outstanding applications are adjourned to a first day of hearing at 2.15pm on 5 December 2011.

6. That the grandmother (Ms Bedford) file and serve an application initiating proceedings with precise orders relating to the child, B, and that such application be lodge by no later than 4.00pm on 30 September 2011 and served accordingly.

7. That the respondent mother (Ms Lee) file and serve a response to the application foreshadowed in the foregoing paragraph in turn, seeking precise orders in relation to the child the child and that such application be lodged by no later than 4.00pm on 21 October 2011.

8. That the grandmother serve upon the father in due course, a copy of these orders.

9. That the reasons this day be transcribed.

10. That there be orders in accordance with the minutes of proposed orders specifically paragraphs 1(a), (b), 3(a), (b) and 4(a) and (b) marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

11. That the solicitor for the father engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

12. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6550 of 2008

Ms Bedford and Mr Bedford

Applicant

And

Ms Lee

Respondent

REASONS FOR JUDGMENT

1. Section 70NAC of the Family Law Act 1975 defines contravention of an order as applying where a person who is bound by the order either intentionally fails to comply with it or makes no reasonable attempt to comply with it.  There is no dispute in this case that Ms Lee is a person who is bound by the order made in 2009.  Section 70NAD requires that a person must not hinder or prevent a child spending time with another person according to the terms of an order.  That is a very clear legislative requirement.  It is obviously there for the purposes of ensuring that children who are the subject of parenting orders have the benefits that they should have in this society.

2. Section 70NAE, however, says that circumstances may arise in which a person who is required to comply with an order has a reasonable excuse for contravening the order.  That particular section is not limited in any way to any particular set of circumstances.  The usual dispute in relation to what might be called a contact arrangement is whether or not there were reasonable grounds to prevent the contact occurring to protect the health or safety of a person, whether it be the parent or the child.  That is not the case here. 

3. What is alleged is that on six specific occasions over a period of July and August, Ms Lee failed to comply with the specific provision of the order that she provide four year old the child to his paternal grandmother.  The order made by consent of the parties provided for the child to be handed over at the Suburb C Police Station.  In discussions during the hearing, I have expressed my concern if not my horror at the thought of a little child and particularly B being handed over in the precincts of a police station.  Whatever the arrangement might be and the relationship might be between the parent and the grandmother, it does not take much to understand that sooner or later a child is going to understand that a police station is a place which is there to protect him in relation to the adults in his life.

4. To make matters more difficult, making such an order places pressure on the relevant police officers to somehow or other act as mediators or protectors or minders in circumstances where they know nothing about the background and are not obliged to participate in the Court process.  If one thinks about it, placing a young constable in charge of a watch-house who has probably had very little experience in life in the role as a mediator in a family law dispute does not make a lot of sense.  It was for reasons such as that that the legislature created the handover centres, and whilst I appreciate that they are government funded and there are resource problems, those sorts of places are specifically geared up to ensure that where there are problems between the adults, the children are protected.

5. Here the question is do the circumstances justify excusing Ms Lee on the six occasions from failing to comply with the Court order made in 2009.  The allegations relate to six Wednesdays:  6 July, 13 July, 20 July, 27 July, 3 August and 17 August.  Initially, I was inclined to strike out the second of those two, but on reading the document a little more carefully, although it is not entirely properly worded, I’m satisfied that it does make clear what was alleged.  In essence, Ms Bedford, as the applicant, alleges that the mother contravened the order on each of those occasions.  The mother, who has had the assistance today of an interpreter, excused herself in respect of each of those allegations and denied that she had without reasonable excuse contravened the order.

6. I think the contraventions can be broken up into two categories.  The first relates to the first four, and the second category relates to the last two.  The circumstances surrounding the first four are shrouded in controversy and mystery, and to the extent that I have any doubt about those, the balance of probabilities being the test, I’m satisfied that the mother can be given the benefit of the doubt.  What occurred there was that at a handover at the Suburb C Police Station, Ms Bedford endeavoured to communicate with Ms Lee by handing her a message to say that she would not be present at forthcoming handovers because she was going overseas.  When she returned, it would appear that she tried to communicate in one form or another with Ms Lee to indicate that the orders should resume, and Ms Lee remained silent.  Ms Lee’s explanation is that she did not know about the letter.  Further, when relevant text messages were sent to her, she did not get them, because her telephone service had been suspended, because she could not afford to pay the bills. 

7. Normally, one might be a little cynical about that, but in this case, what I think favours Ms Lee is two matters.  First, there is, if not necessarily a language barrier, certainly a cultural difference between the parties, and it may be that there is a reason why Ms Lee did not go out of her way to communicate with Ms Bedford.  The second, which is probably the more important, is that I have heard some evidence about Ms Lee’s financial position.  She is a full-time student and in receipt of government benefits.  It does not take much imagination to understand that living on the pension even with one child is not an easy task.  She receives limited, if any, child support of substance from the father of the child.  That is not a criticism of the father, but it is a reality.  I am satisfied in the circumstances that at least in respect of the first four communications, there was some misunderstanding or lack of knowledge on the part of Ms Lee, and she can be excused.

8. The second category, however, relates to the two Wednesdays in August.  In my view, having heard the evidence, there can be no reasonable excuse.  The first of those dates was 3 August, which was a Wednesday.  Ms Lee’s evidence was that she had some conversations with her lawyer which apparently then gave rise to her feeling sick, and she missed the date accordingly.  There is no evidence of what the nature of the illness was, and there is no evidence that supports that.  Whilst one might excuse the absence of the evidence because of the language and cultural barriers, this is not the first time this case has been before the Court, and it seems to me that Ms Lee really must understand that if she is going to make an assertion such as that, she will need some evidence to show what the illness was.

9. In saying that, I appreciate that people have a distinct difference between feeling sick and actually having sufficient problems to effectively have to go to a doctor, and it may very well be that she did not need to go to a doctor.  But I think the onus is on Ms Lee to show that the illness was such that she was unable to communicate with Ms Bedford, unable to go to Suburb C or some other place to hand over the child or at least to make some alternate arrangement.  And I am satisfied that there is no reasonable excuse in respect of 3 August. 

10. 17 August is almost an identical situation.  What Ms Lee says is that on that occasion, it was raining, and both she and the child were drenched, and as a consequence, both were ill.  For the reasons I have just outlined, the onus is on Ms Lee to show why that illness would be of such magnitude as to preclude her from either communicating with or making arrangements with or attending at Suburb C with the grandmother.  I’m satisfied on the balance of probabilities that there is no reasonable excuse in respect of those two particular allegations. 

11. Section 70NEA of the Act then provides that if I am satisfied about those particular matters, I need to contemplate whether there has been a previous sanction imposed or taken an action in respect of a contravention.  There is no allegation in this case that a previous sanction has been imposed by the Court.  Ms Bedford says that there has been a previous proceeding, and no doubt there was, and she mentions the fact that Ms Lee was warned.  It is one thing to warn someone; it is entirely a different matter to actually have the Court impose a sanction.  I do not understand “action” in s 70NEA to mean “warning”.

12. Section 70NEB relevantly provides the powers of the Court to deal with such a case as this.  The Court has got a number of options.  The first of a number of options is that the Court may direct the person who committed the contravention found to have been proved to attend a post-separation parenting program.  The Court has also got the same power to order other people who may not have been responsible for the contraventions to equally attend the post-separation parenting program.  I think this is a case where it would be of benefit to the child if both grandmother and mother attended a post-separation parenting program in whatever guise it might be.  It might very well be that whilst the legislation defines post-separation parenting program, the parties should attend some form of mediation not only to try and resolve the dilemma between themselves but to come to grips with the fact that there is a child who is about to start school and whose intelligence is growing every day and who will no doubt very quickly understand that his grandmother and his mother are at war with one another.  The sooner the adults realise the damage they are doing to the child, the better.  And in those circumstances, it seems to me that I should order both grandmother and mother to attend the program. 

13. An alternate option, if not an additional option, is that I can order that there be a further hearing and direct the parties to sort out exactly what applications they are seeking so that the proper processes of the Court can contemplate what is in the best interests of the child.  I propose to do that in this case, but having regard to the fact that I intend to order that both parties go to some form of post-separation parenting program, I shall put that hearing off until 5 December, and in the event that they are able to reach some compromise, then the proceedings can be withdrawn, or they can sign some orders.

14. In addition, it is important to note that there is another party to these proceedings who is not directly involved in the contravention – that is, the father of the child.  He needs to be given notice that the proceedings have contemplated to vary the existing arrangements.  The existing arrangements effectively provide for the child to spend time with his grandmother every Wednesday and every second Saturday.  Those arrangements are to commence and to conclude under the orders at the Suburb C Police Station.  For the reasons I have outlined, that is totally inappropriate, but there is a further looming problem, and that is that the child is about to start school.  It does not take much to understand that the child cannot possibly spend every Wednesday with his grandmother if he is supposed to be at school.  There seems to be some dispute between the parties about which school the child will attend.  That too needs to be sorted out.  The bigger problem, in my view, however, is the fact that the mother lives in Suburb D .  When I canvassed the question of why the handover point was at Suburb C, she said that it was agreed by her because of the fact that she was wanting a halfway point, and she was troubled about issues of aggression and violence.  The grandmother too complains about issues of verbal abuse.

15. All of those matters seem to me to point to the fact that these parties should have as little as possible to do with one another until they understand the damage that is being done to the child, and hence the contact centre might be an appropriate place.  However, having regarding to the fact that both parties are going to go off to some form of mediation, it seems to me that what I ought do is give them a chance to sort out just exactly how this little boy is going to be involved in each of their lives in the future, and for that reason, I propose to adjourn the matter to 5 July and direct that each of them provide the necessary documentation, even if each is unrepresented, so that the – each of them can contribute towards the Court’s resolution of the matter in December.

16. One of the other powers of the Court is to make an order for compensation.  Ironically, with the assistance of the solicitor who acted for the father, a compromise seemed to have been reached.  The parties were not far apart.  The compromise appeared to even include that the child spend overnight with his grandmother.  The evidence is that the child has not spent overnight with his grandmother other than on one occasion, and that was over 18 months ago.  On that evidence or the evidence that I have, it is not possible for me to make an order as to exactly what overnight time should be spent by the child at this stage.

17. All of those problems can be sorted out at the mediation if the parties use some commonsense and are child-focused.  The problem that is immediate is the Suburb C Police Station.  For all the reasons which I will not repeat, that has to stop.  Thankfully, over lunch, the parties have come to a compromise, and what is now agreed is that on the Wednesdays, the child will be handed over at the Suburb E Railway Station at 8 am and be returned to his mother by the grandmother at 4 pm.  On Saturdays, the handover will take place at the F Railway Station at 11 am and the return at 4 pm.  Those arrangements are to last until 5 December.

18. If the parties think that that is a good arrangement, thereafter they can make an agreement in the foreseeable future, and they can then go to the mediation or post-separation parenting program, whichever is the best for them, and then ultimately make arrangements for more permanent orders on 5 December.  It seems to me in the circumstances that what I should do is record the fact that there has been now a contravention under orders and to make orders that both parties attend either a post-separation parenting program or the mediation that was proposed earlier and that the orders be resumed on the basis that the handover point is as I’ve just outlined.

19. The question of compensation at this stage seems to me to be pointless, because I could not be satisfied that overnight time was appropriate in the circumstances, and in any event, the time that the child is spending with his grandmother is quite significant.  It is conceivable that he could spend every Saturday or Sunday with his grandmother by way of some sort of compensatory arrangement, and then ironically enough, that was why the parties started the dispute before me.  The difficulty I have with that arrangement is the cost of it.  Both parties complain about different things.  The mother’s problem is that it is a significant imposition upon her to get by public transport from Suburb D to wherever she has to go, not to mention the time that she has to sit around and wait for the return of the child, and then she has the costs associated with travel.  And whilst the costs associated with travel may not be all that significant, in circumstances where the mother is living on a pension, it seems to me that there ought to be no imposition of further costs, because effectively what I would be doing is taking money out of the mouth of a babe.

20. On the other hand, the grandmother has a back problem and lives in Templestowe, and the travel to and from places such as Suburb E, F Station, Suburb C and Suburb D create an imposition upon her.  All of the parties need to consider the child rather than their own needs, but the bottom line seems to me to be that the child is a child who lives most of the time with his mother and who will live most of the time in the future with his mother, and in the circumstances of her financial position, it seems to me that I am prejudicing him if I create a situation where the mother has to spend further funds out of her already limited circumstances.

21. In those circumstances, I propose not to make a compensation order, but it seems to me that the issue of what future time should be spent, including if the grandmother seeks overnight time with this child, can be canvassed on 5 December.  I find two contraventions by the mother proved.  I find they fit within the category of less serious but without reasonable excuse.

ORDERS DELIVERED

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 September 2011.

Associate:

Date:  11 January 2012