Beesley and Ericsson (No.4)
[2017] FCCA 2189
•12 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEESLEY & ERICSSON (No.4) | [2017] FCCA 2189 |
| Catchwords: FAMILY LAW – Contravention – whether the father has contravened orders made on 18 December 2014 and 24 August 2016 – where these are the fourth proceedings issued since final orders on 18 December 2014 – if contraventions proven, what should the penalty be. |
| Legislation: Family Law Act 1975, ss.70NEB(1)(a)(i), 70NFB(2), 70NBA, 70NAC, 70NAD, 65N, 70NAE, 70NEB, 70NEC, 70NECA, 70NFA, 60CA, 60CC Federal Circuit Court Rules 2001, r.25B.02 |
| Rice v Asplund (1979) FLC 90-725 Stamp & Stamp [2014] FCCA 1269 |
| Applicant: | MS BEESLEY (AKA MS A) |
| First Respondent: | MR ERICSSON |
| File Number: | DGC 1317 of 2013 |
| Judgment of: | Judge Small |
| Hearing date: | 23 February 2017 |
| Date of Last Submission: | 23 February 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 12 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | Rockman Lawyers |
| Counsel for the Respondent: | Ms Ben-Simon |
| Solicitors for the Respondent: | Frid & Associates |
ORDERS
UPON THE COURT FINDING THAT:
The respondent father contravened paragraph 4(b) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 1 September 2016 without reasonable excuse.
The respondent father contravened paragraph 9 of the Orders of 18 December 2014 on 4 September 2016 without reasonable excuse.
The respondent father contravened paragraph 4(a) of the Orders of 18 December 2014 and paragraph 5(b) of the Orders of 24 August 2016 on 4 September 2016 without reasonable excuse.
The respondent father contravened paragraph 8(b) of the Orders of 18 December 2014 on 28 September 2016 without reasonable excuse.
The respondent father did not contravene paragraph 7(b) of the Orders of 18 December 2014 on 12 October 2016.
The respondent father contravened paragraph 7(b) of the Orders of 18 December 2014 on 25 October 2016 without reasonable excuse.
THE COURT ORDERS THAT:
Pursuant to s.70NEB(1)(a)(i) of the Family Law Act 1975 (Cth), the respondent father shall, within 7 days, do all such acts and things and sign all such documents as may be necessary for him to enrol in an accredited post-separation parenting course, and he shall provide a certificate of completion to the mother’s solicitors upon completion of that course.
Pursuant to s.70NFB(2) of the Family Law Act 1975 (Cth), the respondent father shall enter into a bond of two years’ duration with a surety of $1000.00 to be of good behaviour and to comply with all orders of this court.
Pursuant to s.70NBA of the Family Law Act 1975 (Cth), the orders of 18 December 2014 shall be varied so that in paragraph 7(b) the time the children shall be returned to the other parent at the conclusion of (religion omitted) festivals shall be two hours after the conclusion of (church omitted) prayers on those days.
The Amended Application Contravention of the mother filed 17 February 2017 is otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Beesley & Ericcson (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 1317 of 2013
| MS BEESLEY (AKA MS A) |
Applicant
And
| MR ERICSSON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contravention proceedings issued by the mother, Ms Beesley, now known as Ms Beesley (“Ms A” or “the mother”), against the father, Mr Ericsson (“Mr Ericsson” or “the father”) in an Application Contravention filed on 2 November 2016 and an Amended Application Contravention filed on 17 February 2017 (“the Amended Application”).
Ms A also issued an Application Contravention on 24 April 2017, and that Application is still before the Court and is yet to be heard.
In the Amended Application, Ms A alleges that Mr Ericsson has contravened either Final Orders made by Judge Phipps on 18 December 2014, or a variation to those orders made by Judge O’Sullivan on 24 August 2016, on seven occasions.
The orders alleged to have been contravened are parenting orders in relation to the parties’ children X born (omitted) 2003 (“X”); Y born (omitted) 2006 (“Y”) and Z born (omitted) 2008 (“Z”) (collectively “the children”).
Background
The father was born on (omitted) 1963 and is 53 years old. He is a (occupation omitted) but has been unemployed for several years due to health reasons.
The wife was born on (omitted) 1974 and is 43 years old. She works full-time as a (occupation omitted) at (employer omitted).
The parties were married on (omitted) 1993 after living together since (omitted) of that year, and separated on 8 December 2012. They were divorced on 15 August 2015.
X, Y and Z are the only children of the marriage.
The father lives in (omitted) with his current wife and her two children (who spend half their time with their father), and the mother lives in (omitted) with her current husband and the subject children.
The children currently spend time with the father pursuant to Final Orders made by Judge Phipps on 18 December 2014 after a four day trial in May of that year (“the Final Orders”), those orders having been varied by Judge O’Sullivan in contravention proceedings brought by the father against the mother in 2016.
Both parties are (nationality omitted), the father by birth and the mother by conversion, but their practices are different – the father’s being more (omitted) observant (for instance (omitted)), and the mother’s, while still (religion omitted) (for instance (omitted)), being less strictly observant. That difference has been the focus of a considerable amount of the conflict between the parties over the years and has led to almost continuous litigation since 2013.
Procedural History
The father issued an Initiating Application on 14 August 2015 seeking orders different to those made by Judge Phipps on the ground that the mother had moved to (omitted).
On 27 November 2015, Judge Phipps dismissed that Application on the basis of the decision of the Full Court in Rice v Asplund (1979) FLC 90-725 as the mother was continuing to comply with the Final Orders, and as the move to (omitted) was not affecting that compliance, there was no new circumstance to be considered.
On 21 December 2015 the father filed a Contravention Application alleging multiple contraventions of the Final Orders by the mother.
On 26 February 2016 the father filed a second Contravention Application alleging further contraventions of the Final Orders by the mother.
On 29 February 2016 Judge Phipps recused himself from hearing the father’s first Contravention Application and adjourned that Application to a date to be fixed.
Both the father’s Contravention Applications were then adjourned to 27 May 2016 before Judge O’Sullivan.
On 27 May, Judge O’Sullivan adjourned both Applications to a hearing before him on 21 July 2016, when both Applications were heard together.
In a judgment delivered on 24 August 2016, Judge O’Sullivan found that the mother had contravened the Final Orders on four occasions, on two of those without reasonable excuse, and ordered make-up time for the children and the father.
He also varied the Final Orders in the following terms:
5. Pursuant to s.70NBA the orders of 18 December 2014 be varied as follows:
a)The school holiday time in order 8 commences (and the school term time in order 4 concludes) on the last day of school in each school term.
b)Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.
The mother issued her first Contravention Application on 17 June 2016, alleging that Mr Ericsson had breached the Final Orders on two occasions.
The father issued further proceedings by way of an Initiating Application filed on 18 July 2016. Those proceedings remain on foot before the Court, but only in relation to the children’s schooling, the remainder of the father’s application having been dismissed, again on the basis of the principle set out in Rice v Asplund, after an interim hearing held on 17 February 2017. That application is listed for final hearing in September 2017.
The mother filed her second Contravention Application on 2 November 2016. That application alleged twelve contraventions of the Final Orders and four contraventions of the orders made by Judge O’Sullivan on 24 August 2016 (“the August 2016 orders”). Some of those allegations involve both the Final Orders and the August 2016 orders.
On 2 November 2016, the two Applications were consolidated and listed for hearing on 17 February 2017.
The matter was not reached on 17 February 2017 and was adjourned to 23 February 2017 for a one day hearing. On 14 February I ordered the mother to file an Affidavit setting out exactly which allegations she wished to pursue at hearing by 4:00 p.m. on 18 February 2017. She did so, citing seven of the twelve allegations in the second Application.
At the hearing of her Applications on 23 February 2017, the mother was given leave to withdraw her Application of 17 June 2016, which left seven instances of alleged contravention to be considered.
In the morning of the hearing, I dismissed the first of the alleged contraventions as it did not comply with r.25B.02 of the Federal Circuit Court Rules 2001.
The hearing then proceeded in relation to the remaining six counts of alleged contravention.
I began to read the allegations to the father, and his counsel advised that his defence in relation to all counts was that there had been no breach, but that if I decided that there had, he had a reasonable excuse.
The witnesses were the mother and the father and each was cross-examined by the other’s counsel.
I reserved judgment at the conclusion of submissions by counsel.
The Law
The law in relation to contraventions is found in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 70NAC and s.70NAD of the Act set out the meaning of what it is to contravene an order as follows:
70NAC Meaning of contravened an order
A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:
(a) 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; or
(b) otherwise – he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
(Note omitted)
70NAD Requirements taken to be included in certain orders
For the purposes of this Division:
(a) a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b) a parenting order that deals with whom the child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d) a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
The orders alleged to have been contravened in this case are parenting orders which deal with “spend time” arrangements.
Therefore those orders are taken to include the requirements of s.65N of the Act.
Section 65N states as follows:
65N(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
65N(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child from benefiting from spending time with each other under the order .
The legislation also provides for a the court to be satisfied that a person has contravened an order, but to find that he or she had “a reasonable excuse” for doing so, that finding resulting in either exoneration of the person, or further orders being made.
That is, an Applicant in Contravention proceedings must prove not only that an order has been contravened, but that the Respondent to the Application has contravened the order without a reasonable excuse.
The meaning of “reasonable excuse” is set out in s.70NAE of the Act as follows:
70NAE(1) The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
70NAE(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this act affecting 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.
70NAE(4) a person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with the person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
70NAE(5) a person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Section 70NAE (6) and (7) are not relevant in these proceedings.
The onus of proving the facts of a contravention lies with the Applicant, that is, with Ms A.
However once the facts have been proven, the onus is on Mr Ericsson, as the Respondent, to show, on the balance of probabilities, that he had a reasonable excuse for the contravention.
So, if I find, as a matter of fact, that Mr Ericsson has contravened any of the Final Orders or the August 2016 orders as alleged, he must prove to the Court, on the balance of probabilities, either that he did not understand the obligations imposed on him by the Final Orders, or that the contraventions were necessary in order to protect the health or safety of the children and/or him.
Most cases of this kind involve allegations that a resident parent has failed to make children available for court-ordered time with the other parent, and there is much case law covering those circumstances[1].
[1] That law is set out in some detail in Stamp & Stamp [2014] FCCA 1269 .
This is not such a case. In this case the allegations are essentially that the father has contravened orders by collecting the two younger children from school before the end of the school day, by failing to collect the two younger children from school at all, or by failing to return the children to their mother on time after their court-ordered time with him.
The Evidence
I will deal with each allegation separately.
Allegation 1: That on 1 September 2016 at 7:00 p.m. the father without reasonable excuse did not return X to the mother’s home and did not collect Y and Z from school at the same time on that day in contravention of paragraphs 4(b) of the Final Orders and 5(b) of the August 2016 orders.
Paragraph 4 of the Final Orders reads:
4. That the children spend time and communicate with the husband during the school term as follows:
(a)Each alternate weekend from after school or like time on Friday to 5.00p.m. Sunday;
(b)Each alternate Thursday from after school or like time to 7.00 pm;
(c) As otherwise agreed in writing between the parties.
Paragraph 5 of the August 2016 orders states that:
(5)Pursuant to s.70NBA the orders of 18 December 2014 be varied as follows:
(a)The school holiday time in order 8 commences (and the school term time in order 4 concludes) on the last day of school in each school term.
(b)Unless otherwise agreed or provided for in these orders, changeover where not otherwise at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.
In her affidavit affirmed and filed on 2 November 2016 (“the mother’s affidavit”), Ms A deposes that she received a telephone call from the two younger children’s school on Thursday, 1 September 2016, to say that Mr Ericsson had not picked them up. She says that as a result, she was forced to pay for after school care for Y and Z on that day.
In addition, while Mr Ericsson had collected X from his school that afternoon, he had sent an email to her solicitor at 4:03pm stating that he would not be collecting Y and Z on that day and moreover, he would not be returning X at 7:00 p.m. as expected pursuant to the Final Orders.
It is her evidence that as a result of these circumstances, she was forced to ask her mother to drive from (omitted) to (omitted) to collect Y and Z from after school care, and that she was forced to drive from her workplace in (omitted) to (omitted) to collect X.
At trial, when this allegation was put to him, Mr Ericsson accepted the facts as alleged but stated that he had a reasonable excuse for not complying with the orders.
Under cross-examination from the father’s counsel, Ms A said that because Mr Ericsson had refused to return the children on the Thursdays and Fridays when he spent time with them pursuant to the Final Orders, she had been forced to drive to (omitted) to collect them every time.
When it was put to her that there had been an agreement that she do so, Ms A denied that suggestion, saying that if she wanted the children returned after their time with their father she had to collect them from (omitted), otherwise they would simply not be brought home.
Ms Ben-Simon, for the father, argued that the orders were unclear as the Final Orders had been made at a time when the parties lived only a few kilometres from each other and did not contemplate the father travelling long distances to return the children. She said that paragraph 4(b) of the Final Orders did not specify who was to transport the children.
When that proposition was put to Ms A, she agreed, but then the following exchange took place:
Ms A: But can I say that it may be so, but if it wasn’t going to be at their school then it should have been at the mother’s house pursuant to order 5(b) of Judge O’Sullivan.
Ms Ben-Simon: Or that the mother was to bring the children to the father.
Her Honour: No, that’s not what it says. What it says is:
unless otherwise agreed or provided for in these orders –
and you’ve just made the point that it is not provided in these orders –
changeover where not at the children’s school be with the father to collect from the mother at the start and return to the mother at the end.
Ms Ben-Simon: I think the confusion is that it also says that the…
Her Honour: How much clearer can it be? It’s either at school or he picks them up from the mother. How much clearer can that be?
I have not changed my mind about the interpretation of the Final Orders and the Orders of August 2016 in the time between trial and preparing this judgment.
When read together, I find, as a matter of law, that paragraph 4(b) of the Final Orders, and paragraph 5(b) of the Orders of August 2016 require Mr Ericsson to return the children to their mother at the conclusion of their time on each alternate Thursday.
On Thursday 1 September 2016 he did not return X as required by those orders.
While giving his Evidence-in-Chief at trial, Mr Ericsson gave the following evidence, referring to paragraph 5(b) of the orders of August 2016:
… and it is my clear understanding from that – and I would never breach an order if I would understand otherwise. My clear understanding is as such, at all times when I’m not otherwise collect from school – being (omitted) festival or term break – I am to go and return; means I go and collect and return to the mother […]at all times.
He stated further however, that he had taken legal advice about this matter, and that he did not believe that paragraph 5(b) of the Orders of August 2016 imposed an obligation on him to collect and deliver the children at the times addressed in paragraph 4(b) of the Final Orders.
That evidence is simply contradictory.
Mr Ericsson then went on to say, in reference to orders made in August 2013:
So the application of the order were very easy (sic). We lived at a reasonable distance from each other and I voluntarily, out of goodwill, go and collect from school and return to the mother. There is no issue, there is no issue whatsoever; there was no issue. When the mother decided to relocate – and I do understand that people can relocate; it does happen that people relocate – but the change in circumstances that has been brought up, the inflexibility of viewing, ‘Yes I have relocated and now I’m expecting you to do everything’, to me it’s not for the benefit of the children, and it’s definitely not for the benefit of the working arrangement.
I note that it was the mother’s evidence that Judge O’Sullivan had been well aware at the time of the hearing of the father’s Application Contravention on 21 July 2016 that she and the children had moved to (omitted).
Later, under cross-examination by Ms Jenkins, for the mother, Mr Ericsson was very clear that he understood that the orders required him to collect the children from school and take them back to their mother at the end of their time with him.
However, when under further cross-examination by the mother’s counsel, Mr Ericsson stated that on the basis of legal advice he had sought, he thought that because paragraph 4(b) of the final orders was silent in terms of who was to transport the children, he expected the mother to collect the children on those days.
When asked directly why he had not delivered X to his mother at 7:00p.m. on 1 September 2016, Mr Ericsson said the following:
Because I was mindful of the hindrance created by commuting for the children. If the order calls from the end of school until 7 o’clock in the evening, and my children need to be spending two hours of that time commuting – minimum two hours at that time, as peak hours in the afternoon can be quite extended more than the normal 50 minute at off peak – I found that the benefit for the children is minimal. And to me I need to commute four hours all in total if I was to collect and return, and I’m not, because during school days I don’t need to do that, and that does not make sense. I put it in my affidavit too. […] So I didn’t see the benefit for the children.
On the basis of the above evidence, I find that the father did contravene Paragraph 5(b) of the Orders of August 2016 in that he did not return X to his mother at 7:00 p.m. on Thursday 1 September 2016. I will deal with the issue of whether there was a contravention in that he did not collect Y and Z later in these Reasons.
The question then is whether he had a reasonable excuse for that breach.
I have set out the relevant subsections of s.70NAE of the Act earlier in these Reasons.
It is clear from the evidence set out above that Mr Ericsson cannot rely on subsection (2). While his evidence at trial was contradictory on this issue, I find that he did understand that it was his responsibility under the Orders of August 2016 to return X to his mother at 7:00 p.m. on 1 September 2016.
In addition, he cannot rely on subsection (4) as there is no suggestion that it was necessary for him to keep X in his care that night to protect X’s health and safety.
Sections 70NAE(5), (6) and (7) are not relevant to this issue.
In all those circumstances, I find that, at 7:00 p.m. on 1 September 2016, Mr Ericsson, without reasonable excuse, contravened paragraph 4(b) of the Final Orders and paragraph 5(b) of the Orders of August 2016 in that he did not return X to his mother.
The question of whether he committed a second breach on that day in that he did not collect Y and Z from their school and deliver them back to their mother is somewhat different.
Contravention proceedings are quasi-criminal in nature because penalties are involved upon such allegations being proven, and it is therefore necessary for the documentation supporting those allegations to be correct in every particular.
The mother’s Amended Application Contravention, when read as written, states that Mr Ericsson contravened paragraphs 4(b) of the Final Orders and 5(b) of the Orders of August 2016 in that he “failed to pick up after school Y and Z”. The time of that alleged contravention is said to have been 7:00 p.m. on 1 September 2016, and the place of the alleged contravention is stated as “ (omitted)”.
Unfortunately for Ms A, the stated orders do not require Mr Ericsson to pick Y and Z up after school at 7:00 p.m., nor is he required to collect them from the stated address at that time.
I therefore find no breach of the Orders as alleged in the second part of Allegation 1.
Allegation 2: That on 4 September 2016 at 6:38 p.m. at (omitted), the father, without reasonable excuse, returned the children after the time specified in paragraph 9 of the Final Orders.
Paragraph 9 of the Final Orders reads:
9. That the children spend time with the husband on Father’s Day from 10:00a.m. until 6:00 p.m.
Father’s Day fell on 4 September 2016.
It is not disputed between the parties that Mr Ericsson returned the children to their mother at 6:38 p.m. on 4 September 2016.
Ms A deposes in her affidavit that she became worried when the children were not returned at 6:00 p.m. on 4 September 2016, and that at 6:28 p.m. she sent a text to Mr Ericsson reminding him that he was supposed to return the children at 6:00 p.m. and stating that she needed to know where they were.
It is her evidence that when the children returned to her on that evening they told her that they had been in a nearby cinema watching a movie with their father. She points out in her affidavit that Mr Ericsson would have known that the children would be unable to be returned to her on time “if they watched the whole movie”.
In his responding affidavit, affirmed on 15 and filed on 27 January 2017 (“the father’s affidavit”), the father deposes as follows:
14. The order does not call for who is to commute the children and return them to the Mother’s home – I have collected the children at 10.0am (sic) that day, I have travelled ~1Hrs (sic) to collect the children.
15. The allocated time spend with the children is between the hours of 10.0am to 6.pm (sic) that evening. Considering the distance between the parties is 47KM which can take up to an hour, I have returned the children in reasonable time and earlier then (sic) I should have.
As a good gesture I have returned the children to their Mothers (sic) home by 6:34pm, considering the distance between the respective homes there is hardly a reason to pervert facts.
When asked why it was “a good gesture to bring them home on Father’s Day”, Mr Ericsson said:
There is a distance in commuting that needs to be considered, and given that the order were given in December 2014 referring to the time that the father spend during Father’s Day, it was… (sic in transcript) provided if we live two kilometres from each other. Now, I have commuted the children at 6.38, brought them home, the children on Father’s Day, which is a very special day, asked me actually to take them to see a film, and I did.
The father’s further evidence was that because of the distance between the parents’ homes, he had chosen to remain within about half an hour of the children’s home on Father’s Day 2016, that he and the children had gone bushwalking, to a park, and then to see the film. He said the cinema they attended was “somewhere down the outer suburbs of (omitted), or something like that; something closer.” He said that the cinema was about 35 minute drive from the mother’s home.
He said that the movie had finished at about 6:00pm on that evening. The following exchange then took place:
Ms Jenkins: So you knew there was no way you could be back by six?
Mr Ericsson: The children have asked me to take them to a film.
Ms Jenkins: Can you answer the question, please?
Mr Ericsson: I knew I’m not going to bring them back. Well, what’s your question really?
Ms Jenkins: My question – so you can see, you knew that you would not be able to be back at the mother’s house at 6 o’clock?
Mr Ericsson: No. I would not even endeavour to actually bring them by 6 o’clock because the time that I have with the children is from 10 to 6 with the proviso that we live 2 kilometres from each other; that’s the order.
[…]
Ms Jenkins: So Mr Ericsson, your evidence you gave before was that you wouldn’t even endeavour to comply with the orders because you want your time to go from 10 until 6 without travel, correct?
Mr Ericsson: I want the time 10 till 6 to be complied with, with the giving that – that we’re living a distance that is make the order applicable. If the order was given with the proviso that we live 2 kilometres from each other, and the mother wants to bicker over 38 minutes, I see it unreasonable.
Her Honour: and if it were 7 o’clock, would you have brought them back at seven or would you have brought them back at 7.38?
Mr Ericsson: No. No, I would be bringing them back at seven because it will be making it reasonable for me to comply, your Honour.
When asked why he had not simply sent a text to the mother informing her that the movie would finish after 6 o’clock, and therefore the children would be late returning to her, Mr Ericsson said:
I simply didn’t. I enjoyed my day with my children.
The above exchanges tell the court much about Mr Ericsson’s attitude to his former wife and to his responsibilities pursuant to court orders.
Again, Mr Ericsson’s evidence does not provide a reasonable excuse under s.70NAE.
Therefore, I find that on 4 September 2016, the father, without reasonable excuse, contravened paragraph 9 of the Final Orders in that he failed to return the children to their mother by the time specified in that paragraph.
Allegation 3: That on 11 September 2016 at 5:00p.m. at (omitted), the father, without reasonable excuse, did not return the children to the mother’s home after their time with him in contravention of paragraphs 4(a) of the Final Orders and 5(b) of the August 2016 orders.
I have already set out the provisions of those paragraphs earlier in these Reasons.
In the mother’s affidavit, she deposes to receiving an email from Mr Ericsson at 1:10 p.m. on that day advising her that “the children would be available for collection at his home at 5:00 p.m. that day and by implication I understood that he was refusing to drop them back at my home […]”.
Ms A deposes that she was “left with no doubt that if I wanted the children back I would have to collect them from Mr Ericsson’s home in (omitted). I then went to Mr Ericsson’s home at approximately 5:00pm that evening and all of the children were there as Mr Ericsson had made no attempt to return them to me at my home in (omitted).”
In the father’s affidavit, he repeats his assertion that he did not believe that he was required to return the children to the mother at the end of the regular weekend time with him. He does not deny that he did not return the children to their mother at the alleged time on the alleged day.
I have found that Mr Ericsson’s belief about the meaning of paragraphs 4(b) of the Final Orders and 5(b) of the August 2016 orders is incorrect at law.
Again, none of the matters set out in s.70NAE have been proven in relation to this allegation.
I therefore find that on 4 September 2016, the father, without reasonable excuse, contravened paragraph 4(a) of the Final Orders and 5(b) of the August 2016 orders in that he failed to return the children to their mother at her home in (omitted) at 5:00p.m.
Allegation 4: That on 28 September 2016 at 8:52 a.m. at (omitted), the father, without reasonable excuse, returned the children after the time specified in paragraph 8(b) of the Final Orders.
Paragraph 8 of the Final Orders reads:
8.THAT subject to the specific orders in relation to (religion omitted) Holidays, herein, the children spend time with the husband and the wife during school holiday periods on a week about basis as follows:
(a) In week one with the wife;
(b) In week two with the husband from 8.00am on Monday until 8.00am on Wednesday, with the wife from 8.00am on Wednesday to 8.00am on Friday and then with the husband from 8.00am on Friday until 5.00pm on Sunday.
28 September 2016 was the Wednesday of the second week of the third term school holidays.
In the mother’s affidavit, she deposes that on that day, Mr Ericsson returned the children at 8:52 a.m.
She deposes further that her solicitor had received an email from Mr Ericsson on 19 September 2016 seeking “to vary the time of pick up and drop off for children during term holiday times from 8.00am to 9.00am”.
She says that she advised Mr Ericsson by email on 25 September 2016 that she did not consent to the change of time, particularly as she was required to be at work at 9:00 a.m. on 28 September 2016.
She deposes further:
23. On the morning of 28 September 2016 I noticed an email that had been sent by Mr Ericsson the previous evening at 10.55pm in which he stated that he would be dropping the children back to me at 9.00am despite my lack of consent and that he wanted to drop them off at a different location closer to his home.
24. Whilst getting ready for work I then needed to communicate with Mr Ericsson by email to advise him not to drop the children off at his suggested location of a holiday program as they had not been booked in to attend that day. […] Out of concern for the urgency of the situation I also sent a text message to Mr Ericsson on that morning at 7:59am […] As a result of Mr Ericsson once again failing to comply with the Orders of this Honourable Court I attended at my workplace late on that day.
At trial, it was the mother’s evidence that the arrangement she had made for the morning of 28 September 2016 was that the children be returned to her at 8:00 a.m., and she would take them with her to work in (omitted), where her mother would pick them up and look after them for the day.
She acknowledged that it might have been possible for Mr Ericsson to deliver the children to her mother in (omitted) that morning, but that arrangements had already been made by the time he sent her the email at 10:55 p.m. on the night before. Under questioning from the bench, Ms A said that if she had received that email “a couple of days” prior to the Wednesday it might have made a difference.
It was her evidence that the arrangements she made for the children over school holiday periods was variable, and that she did not want her mother to be forced to have contact with Mr Ericsson because “in the past he has intimidated her and bullied her”. The following exchange then took place:
Ms Ben-Simon: The children could have simply been dropped off. There was no reason to him to have interaction with your mother; do you agree with that?
Ms A: I don’t agree with that because it’s not part of the normal arrangements. So if you do something differently then it is likely that you need to create a new thing that opens up that opportunity […].
Ms A was very clear in her evidence that she expects Mr Ericsson to abide by court orders to the letter.
In the father’s affidavit, he deposes as follows in relation to this incident:
47. My reasonable excuses are as follows:
a.The order 8(b) was given when the parties leaved (sic) 2KM (sic) apart.
b.This is not the case since June 2016.
c.The order calls to return the children at 8.00 am on the basis of the parents residing at close proximity from the respective parents’ home.
d.I have commuted 47km from my home to (omitted) and returned the children at 8.52am.
e.Given that I Have (sic) returned the children to their Mother at reasonable time, I do not believe that I have contravened this order.
He deposes further that he had given “my advice and reasons for not returning the children at 8am” to the mother’s solicitors “at the night of 27 September 2016”.
Indeed, when asked why he had simply not risen earlier on 28 September 2016 in order to comply with the orders and deliver the children to their mother at 8:00am, Mr Ericsson said the following:
Why would I get up earlier? Does the mother get up earlier to make any leeways for me?
After further discussion about the intervention order which was in place against Mr Ericsson at that time, the following exchange took place:
Her Honour: The intervention order did not prevent you from bringing the children back at 8 am. What prevented you was your belief that – you thought that because the orders had been made when you lived closer together that you didn’t have to agree with them – you didn’t have to comply with them, or that you thought you were complying with them?
Mr Ericsson: I’m saying, your Honour, that the circumstances have – of the distance had changed. I’ve – I’ve…
Her Honour: Yes. I understand that’s what you’re saying.
Mr Ericsson: … brought it to the court, and the court have not looked at those yet.
[…]
To get them up at 6 o’clock in the morning […] or 6.30 to dress them, to feed them, and then commute them to be by – by 8 o’clock in time where it is a public – where its school holiday, I find it unreasonable.
In other words, Mr Ericsson does not deny that he did not return the children at 8:00 a.m. pursuant to the Final Orders and none of the above “reasonable excuses”, nor any of the evidence he gave at court on this subject, constitutes a reasonable excuse under s.70NAE.
In those circumstances, I find that at 8:52 a.m. on the morning of 28 September 2016, the father contravened paragraph 8(b) of the Final Orders in that he returned the children to their mother at (omitted) 52 minutes after the time specified in that order.
Allegation 5: That on (omitted) 2016 at 10.12 p.m. at (omitted), the father, without reasonable excuse, returned the children after the time specified in paragraph 7(b) of the Final Orders.
Paragraph 7of the Final Orders reads as follows:
7. THAT for the purposes of spending time with the children pursuant to paragraphs 4(a) & (b) and 5(a) & (b) hereof:
(a)The party with whom the children shall spend the (omitted) festival shall collect the children from the conclusion of school or 3:30pm if a non school day;
(b)In the event that the (omitted) festival ends at a time that the party would not otherwise be spending time with the children pursuant to these orders the party with whom the children spend the (omitted) festival shall return the children to the other one hour after the conclusion of the (omitted) festival; and
(c)in the event that the (omitted) festival ends at a time that (omitted) commences then the time to be spent with the party shall be extended to one hour after the conclusion of (omitted).
I have already set out the provisions of paragraphs 4(a) & (b) and 5(a) & (b) of the final orders in paragraphs 47 and 48 of these Reasons.
The (religion omitted), which is the holiest day of the (religion omitted) year fell on (omitted) 2016.
It is not in dispute between the parties that the children were not returned to Ms A until 10:12 p.m. on that evening.
In the mother’s affidavit, Ms A states as follows:
26. On Wednesday, (omitted) 2016 at the end of the (omitted) Festival, the children were to be returned to me at my home by Mr Ericsson one hour after the conclusion of the festival. The festival finished at 8:15 PM. Annexed hereto and marked “J – 18” is a true copy of a listing of the concluding times for relevant (omitted) festival times in 2016. The children should have been returned by Mr Ericsson to me at my home at 9:15 PM but were not. I was concerned about why the children were so late and at 9:41 PM and 10:10 PM sent text messages to Mr Ericsson asking where they were. […] I received no reply. The children were returned at 10:12 PM which is far too late on a school night for young children. They were all to attend school the following day and were very tired. I was also tired and had to attend work having been up late and very anxious about the children’s late return.
At trial, under cross-examination from the father’s counsel, Ms A agreed that observance of (omitted) involves a 25 hour fast followed by the evening prayer at the (church omitted), which takes about 15 minutes. She agreed further that after the family travels home from the (church omitted), there is another short prayer called (omitted).
It was then put to her that following (omitted), a (nationality omitted) family would have a meal after the 25 hour fast. It was her evidence that it is not compulsory to have a full meal and that “you can simply have a quick drink and a snack”.
Ms A said that the children were not obliged to fast on (omitted) in 2016, and that she was unaware of whether X had done so.
She agreed that Mr Ericsson had written to her on (omitted) 2016 saying that he could not comply with the orders because they had been made when the parties were living close to each other, and that there would be a delay in bringing them back to her on (omitted) 2016.
It was Ms A’s evidence that she had written back to Mr Ericsson and insisted that the children be returned home on time after (omitted) so that they could be ready for school on the following day. She said that at no time had she consented to the children being brought back to her other than in accordance with the orders.
In his affidavit, Mr Ericsson deposes as follows in relation to this allegation:
52. Order 7(b) states the person that spend the (omitted) festival shall return the children 1 Hrs (sic) after the conclusion of the festival. I have returned the children home at 10.12pm. This order was made with the presumption of the parties residing 2 KM from each other, this is not the case since June 2015, the mother leaves (sic) in (omitted) which is 47 Km apart.
53. There is necessary preparation at the conclusion of 25 Hrs (sic) fast as follows.
a. Night prayer, 15 min
b. Drive from (church omitted) to home~20minuts (sic)
c. (omitted)- small blessing ceremony~10minuts (sic)
d. Assisting the children to change cloth~10minuts (sic)
e. Serving light meal~10minuts (sic)
54.Commuting up to 1Hr depend on traffic.
55.I have made reasonable attempt to comply with paragraph 7(b)
56.I have made an attempt to communicate with the Mother via her solicitor. I refer to paragraphs 5 to 7 of my annexed letter marked “E – 7”, I proposed child centric solution to the late commuting after the end of (omitted), I have proposed for the children to slip (sic) the night at our home, the children were to be driven to school the following morning. Unfortunately the mother sows (sic) no merit in this proposal.
At trial, when asked whether he accepted that (omitted) ended at 8:15p.m. on (omitted) 2016, Mr Ericsson said the following:
[…] maybe in the calendar it finishes at 8.15. The prayer require me in another 15 minute in the (church omitted) after 25 hours over fast (sic). Then I need to drive the children to home. After driving children to – to – to the home, I need to have a little celebration of – of – of what we call (omitted) (sic in transcript), just defining between a normal day to the festival itself, or – or this holiday of (omitted) being the holiest day of the year. Then you have to actually have a little quick meal of 10 minute to break the fast. My oldest son had fasted on that day [...] It would be reasonable for him to eat. For me to eat too – I’m a human being too. Then I will need to actually change the children’s clothes, and organise their stuff, and drive them to their mother. So I endeavoured to actually comply with the order fully and brought the children. I did not leave them with me overnight, or done something that is not – that is against the order. So I have endeavoured to comply with the order as it stands, being the holiest day […] of the year.
Under further questioning from the bench, Mr Ericsson agreed that for him, (omitted) ends when he has come home, had prayers at home, and broken his fast.
The August 2016 Orders state clearly that the parent who spends time with the children during a (omitted) festival at a time when they would normally be with the other parent pursuant to the Final Orders, “shall return the children to the other one hour after the conclusion of the (omitted) festival”.
In this case, there is a dispute between the parties about exactly when (omitted) ended on (omitted) 2016.
Ms A annexed to her affidavit what she said was “a true copy of a listing of the concluding times for relevant (omitted) festival times in 2016”. The document is headed “(omitted church) Times for (omitted) and Holidays”. According to that document the (omitted) holiday ends at 8:15 p.m. in 2016. However, it is unclear to the Court what that document means by “Holiday Ends”. There is no reference in the document to the (church omitted), or the (omitted) prayers and the breaking of the fast at home.
In those circumstances, I am not satisfied, on the balance of probabilities, that Mr Ericsson breached paragraph 7(b) of the Final Orders on that date and I will dismiss that allegation.
Allegation 6: That on (omitted) 2016 at 10.22p.m. at (omitted), the father, without reasonable excuse, returned the children after the time specified in paragraph 7(b) of the Final Orders.
25 October 2016 was the (omitted) festival.
In her affidavit, the mother deposes that the (omitted) festival finished at 8:29 p.m. on that date. However, she gives no supporting documentation for that view, and I note that (omitted) is not mentioned in the “(omitted church) Times for (omitted) Holidays” document mentioned previously.
Again, there is no dispute that the children were returned to her at 10:22 p.m. on (omitted) 2016.
In his affidavit, the father essentially repeats his evidence in relation to the (omitted) holiday and he confirmed that evidence at trial.
That is, while the (omitted) calendar might say that (omitted) finished at 8:29 p.m., that was the time when the (church omitted) service finished, and he then had to walk home, get the children dressed, give them something very quick to eat and say a short prayer before driving them back to their mother. It was his evidence at trial that it was impossible to do all that in one hour. He nevertheless accepted that pursuant to the Final Orders, he had been required to return the children by 9:30 p.m. on (omitted) 2016 and that he had not done so.
In those circumstances, where the father admits the breach, and where none of the matters set out in s.70NAE apply to that breach, I find that at 10:22 p.m. on (omitted) 2016, the father contravened paragraph 7(b) of the Final Orders in that he returned the children to their mother after the time specified in the orders.
Summary of Findings
In summary then, my findings in relation to the six justiciable allegations set out in the Amended Application, are as follows:
Allegation 1: Proven in part
Allegation 2: Proven
Allegation 3: Proven
Allegation 4: Proven
Allegation 5: Not proven and dismissed
Allegation 6: Proven
Penalty
Subdivisions E and F of Division 13A of the Act provide for penalties to be imposed when a Court makes a finding that a person has contravened a parenting order without reasonable excuse.
Subdivision E addresses contraventions that are said to be less serious.
Section 70NEB sets out the powers of the Court when the Court has made a finding of a less serious contravention as follows:
70NEB(1) if this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all or any earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d) – impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with the person for a particular period); and
(iii) the person referred to in paragraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Section 70NEC deals with the bond court may impose under s.70NEB(1)(b):
70NEC(2) A bond is to be for a specified period of up to 2 years.
70NEC(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
70NEC(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
Section 70NECA states that, if the Court requires a person to enter into a bond, and a court finds that the person has, without reasonable excuse, failed to comply with the bond, the Court may impose a fine not exceeding ten penalty units on the person, or it may deal with that situation as though it were a new Contravention Application.
Subdivision F deals with those contraventions said to be “more serious”.
Section 70NFA states that the Court may deal more seriously with a person who it has found to have “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
Section 70NFB then sets out the powers of the Court in those circumstances:
70NFB(2) The orders that are available to be made by the court are:
(a) if the court is empowered under section70NFC to make a community service order – to make such an order; or
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a contravention of a parenting order in relation to a child – to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d) to fine the person not more than 60 penalty units; or
(e) subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in sub paragraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
As can be seen, the powers of the court to make orders upon a finding that a person has contravened a parenting order without reasonable excuse are very wide indeed.
I have found that the father has contravened the final orders on five occasions.
In Hugh & Sawer [2010] FamCA 290, at paragraph 15, Bennett J set out the principles enunciated by the Full Court in the matter of Elspeth & Peter, Mark & Peter, and John & Peter [2007] FamCA 655 (‘Elspeth & Peter’) relating to what might constitute a “serious disregard” for orders under s.70NFA(2)(b).
Those principles are stated to be:
a) what amounts to a serious disregard will depend on the circumstances of the case and the terms of the order;
b) serious disregard is a description of a degree of intent that is something less than the intent required for a contumacious breach, but something more than the intent present in a finding of a contravention;
c) serious disregard has to be seen as a question of proportion and a question of degree, and [is taken] to require some examination of whether it was premeditated, impromptu or minor in its nature;
d) serious disregard may involve no intention on the part of the respondent to support the primary order and/or an intention to circumvent the provisions of the primary order.
Her Honour then goes on:
16. At paragraph 61 of Elspeth and Peter their Honours observed:
The theme that emerges from an examination of several decisions... is that “serious disregard” tends to be found in cases of deliberate, premeditated noncompliance with orders and continued and protracted breach.
17. At paragraph 66 the Full Court observed:
What seems to be a common thread is that the more serious sanction should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on the first breach does not appear to be sufficient to attract the more stringent sanctions set out under Subdivision F.
In this case, Final Orders were made at a time when Mr Ericsson and Ms A lived only a couple of kilometres apart.
In mid-2016, Ms A, her husband and the three children from her marriage to Mr Ericsson moved to (omitted), which increased that distance to about 47 kilometres.
Mr Ericsson was not happy about that move and he filed an Application to reopen the case and have other Orders made. He was not successful in that Application because Judge Phipps found that Ms A’s move did not constitute a significant change in circumstances as interpreted in Rice v Asplund.
There is no doubt that Ms A’s decision to move so far away from Mr Ericsson’s home has caused considerable inconvenience to Mr Ericsson, especially in circumstances where the current Orders require him to do all, or at least the vast majority of the travelling.
Mr Ericsson impresses as a man who takes such things to heart, and his attitude to the Orders as they now stand has been one of what I can only call reckless indifference. If it is convenient for him to comply, he does. If compliance interferes with either his religious observance or is inconvenient for him, he does not comply. He presents as a somewhat rigid though passionate man who is convinced that he is right. Unfortunately for him, I have not found that to be the case.
I note that there is another Contravention Application filed by Ms A on 24 April 2017. I have not read those documents and they have not informed my decision in these proceedings in any way.
Some of the Contraventions I have found proven in these proceedings, specifically the matters involving the late return of the children, do not, I think, fall into the category of serious disregard under s.70NFA. They are thoughtless and/or intentional breaches, but they do not show serious disregard for the Orders as was the case in Elspeth & Peter. They do show a serious disregard and even contempt for Ms A but there is nothing the Court can do about how Mr Ericsson feels about his former wife.
However, the matters where Mr Ericsson has not returned the children at all, and has insisted on Ms A collecting them in contravention of the Orders, does, I think, show a serious disregard for the Orders.
On those occasions, Mr Ericsson has simply decided that he will not comply with the Orders because he thinks them unfair or, in his own words, “unreasonable”. That is not an acceptable attitude to Orders made by a properly constituted court under valid legislation.
In those circumstances, I will make an Order under s.70NEB(1)(a) requiring Mr Ericsson to attend a post-separation parenting course, and an Order under s.70NFB(2)(b) that he enter into a bond to be of good behaviour for a period of two years.
I note that under s.70NBA of the Act, the Court has the power to vary previous Orders in the course of contravention proceedings.
In order to provide fewer opportunities for dispute between these parties, I will vary Order 7(b) of the Final Orders to provide for the children to be returned two hours after the end of (church omitted) prayers on (omitted) holidays. While that might mean that they arrive home later than would be optimum at times, those festivals are not frequent, and such an order would relieve the children of the stress they must feel when their parents are in dispute about their care arrangements on days of religious significance.
In making that order, I have had due regard to all the matters set out in s.60CA and s.60CC of the Act, and I consider such an order to be in the best interests of the children.
Conclusion
This is a high conflict family.
The difference in religious practice between the father and the mother, combined with the father’s passionate and almost single-minded commitment to his practice of (religion omitted), is the catalyst for many of the disputes which arise between the parties.
However, both parents have been found by this Court to have contravened the Final Orders, and the religious practice differences cannot be held responsible for all of the breaches committed.
At trial I said the following to counsel:
I suspect that these parents are going to be in this court arguing about their arrangements for the children until Z (sic in transcript) is 18; that’s what I suspect. It’s going to make a motza for the lawyers, and it’s going to take up a lot of this court’s time. That’s what I think is going to happen […].
The file in this matter fills a large cardboard box - it is what we refer to as “a box file”. It contains six volumes of documents. Most cases before this court contain one, or perhaps two if a matter is complex.
I have noted that there are other proceedings currently before the court in relation to contravention and parenting applications.
I can only hope that I was wrong in my comment to counsel referenced above.
It is to be hoped that there will be an end to all proceedings once the current applications are resolved, and that these parents can genuinely put their children’s best interests ahead of their own feelings.
Only then, without legal proceedings hanging over them, will X, Y and Z be able to develop truly meaningful relationships with both their parents.
I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 12 September 2017
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