Behn & Ziomek - [2015] FamCA 1185

FAMILY COURT OF AUSTRALIA

BEHN & ZIOMEK

[2015] FamCA 1185

FAMILY LAW – ORDERS – CONTRAVENTION – Where the father alleges the mother breached an order requiring the parties to provide information in relation to the child’s past and present medical practitioners and treatments – Where the Court is not satisfied on the balance of probabilities that the contravention is established – Application dismissed.

Family Law Act 1975 (Cth) Part VII, ss 70NAC, 70NAF, 70NCB

APPLICANT:

Mr Behn

RESPONDENT:

Ms Ziomek

FILE NUMBER:

NCC

2014

DATE DELIVERED:

7 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

7 December 2015

REPRESENTATION

FOR THE APPLICANT:

Mr Behn in person

COUNSEL FOR THE RESPONDENT:

Mr Lowe

SOLICITOR FOR THE RESPONDENT:

Swifte Law

Orders

The applicant father’s Application in a Case filed 5 March 2015 is dismissed.
The applicant father is to pay the respondent mother’s costs of today on a party/party basis as agreed or assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Behn & Ziomek has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 5 of 2014

Mr Behn

Applicant

And

Ms Ziomek

Respondent

EX TEMPORE REASONS FOR JUDGMENT

These proceedings concern an application for the imposition of a penalty as a result of an alleged contravention of orders filed by Mr Behn (“the father”) on 5 March 2015. The respondent is Ms Ziomek (“the mother”). The father alleges that the mother contravened an order made by the Court on 12 November 2014. The alleged contravention is particularised as follows:
Letter dated 19 November – Respondant (sic) letter to ICL and Applicant regarding all medical treating providers. The respondant (sic) has not complied with orders dated 12 November and not provide all parties all medical treating practitioner details as per the subpoena medicare and not provide copies of all specialist reports.
The order which required the parties to provide details of such medical treatment providers was Order 2 of the orders made on 12 November 2014.
The father was self-represented and the mother was represented by Mr Lowe of counsel instructed by Swifte Law.
The background to this matter is set out in the judgment of Cleary J dated 25 February 2014.[1] That background is that:
6. … these parties met in Sydney in 2007 when the mother was 19 and the father 29. They married and began living together in Melbourne, where they lived for about five year. The father suffered a back injury during that time and, it is alleged, started to suffer from depression.
7. The child, [L] was born [in] 2012 in Melbourne. After his birth, both parents were involved in his care. The mother returned to work doing two six hour shifts a week and at that time, the father cared for the child. …
8. In June 2013, the mother travelled home to Germany with the child for a holiday. She made a decision not to return. As a consequence of that decision, the Hague Convention was invoked.
[1] Behn & Ziomek [2014] FamCA 157.
The mother subsequently returned to Australia and, on 24 February 2014, Cleary J made parenting orders which provided for the child to live with the mother and spend time with the father.
On 12 November 2014 those orders were varied by Senior Registrar Campbell, most significantly, in respect to changeover which was to occur at F Police Station.
The orders of Senior Registrar Campbell also included Order 2 regarding the parties’ mutual obligation to provide details of medical treatment and medication received by the child to the other parent. That order read:
That within seven (7) days, each of the parties provide to the Independent Children’s Lawyer and each other, a list of all medical practitioners the child has attended upon, details of all treatment provided, reports from any specialists and a list of all medications prescribed.
By letter dated 19 November 2014, the mother’s solicitors sent a letter to the father and the Independent Children’s Lawyer (“the ICL”) setting out the mother’s recording and recollection of medical treatment received by the child. The offence is alleged to have occurred in that letter from Swifte Law (“the letter”).
The letter identified fourteen medical practitioners who had treated the child whilst in the mother’s care. The letter also listed seven different medications that had been provided to the child which ranged from baby Panadol, Phenergan and Paedamin through to Amoxil syrup. After having access to records produced by Medicare, the father asserted that the mother had failed to disclose all of the medical service providers who have provided treatment to the child. As a result the father alleges that the order has been contravened.
The father asserted that, had it not been for his subpoena to Medicare, the additional medical practitioners set out in the mother’s affidavit sworn on 22 June 2015 (“the affidavit”) would never have been disclosed to him. In the affidavit, the mother sought to explain why additional medical practitioners had not been identified in the letter. Those additional doctors included Drs Y, W, N, P, A, U, T, K, L and H. One of the doctors referred to was by way of academic title, Dr P, who is described in the affidavit as being a dentist rather than a medical practitioner.
Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the legislative pathway to follow in considering an application for contravention orders under the Act. Subdivisions C through to F sets out the orders available in instances where:
(1) the contravention has been alleged but not established (subdivision C);
(2)the contravention is established but reasonable excuse for the contravention is found (subdivision D);
(3)the contravention is found to have occurred without reasonable excuse and the contravention is less serious in nature, (subdivision E); and
(4) the contravention is found to have occurred without reasonable excuse and the contravention is more serious in nature (subdivision F).
In contravention proceedings it is important to appreciate the difference between non-compliance with an order and non-compliance which constitutes contravention of an order. In my view, in this case, there was non-compliance with the order because the letter from the mother’s lawyers dated 19 November 2014 did not provide details of all the medical treatment received by the child. However, for reasons which I will discuss, that did not constitute a contravention of an order of the Court and, in particular, did not constitute a contravention of Order 2 of the orders made on 12 November 2014.
Section 70NAC defines the meaning of “contravened” in the context of an order. The section provides that:
A person is taken for the purposes of [Division 13A] 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.
(b)….
(Emphasis added)
It is important to appreciate that it is the applicant that bears the onus of proof. That is, that the non-compliance with the order constitutes a contravention of the order as defined in section 70NAC. In this case I am not satisfied that it was more likely than not that the mother either intentionally failed to comply with the order or made no reasonable attempt to comply.
The father did not present any evidence that the mother’s non-compliance with the order was intentional. When asked as to the basis upon which the father asserted that no reasonable attempt to comply with the order had been made, the father argued that the facts speak for themselves. That is, it was argued the fact that the letter did not contain the information was of itself evidence of the lack of reasonable attempt by the mother to provide the information.
While the mother did not carry the onus of proof, I find that she did establish that she made a reasonable attempt to comply with the order.
In particular, during the course of oral evidence, the mother indicated that, prior to the letter of 19 November 2014 being sent to the father and the ICL, she spent several hours with her solicitor at the Court registry inspecting documents that had been subpoenaed by the ICL with a view to cross-checking the information against diary records that she had made at the time of the consultations.
In her affidavit filed 22 June 2015, the mother refers specifically to doctors indentified in the Medicare report, which was marked Exhibit 1 in these proceedings, and provides an explanation in respect to why each doctor was not identified. That explanation is referred to in paragraphs 11(a) through to 11(j) of the mother’s affidavit. I will not, for the purposes of this ex tempore judgment, read out the mother’s explanations, but I have taken the totality of those explanations into account. By way of summary:
a)In respect to Dr Y, the mother stated that she attended the doctor on one occasion with the child for a condition that later turned out to be hand, foot and mouth disease. She had forgotten about that medical appointment when the letter of 19 November was prepared. The mother was not cross-examined on that explanation.
b)In respect to Dr W, the mother indicated that the medical appointment occurred on 16 December 2014, after the date of the letter of 19 November 2014.
c)In respect to Dr N at X Hospital, the mother referred to the fact that Dr N appeared to provide chemical pathology services. There is no evidence that the mother was aware those pathology services had been arranged by the treating doctor.
d)In respect to Dr P, the mother noted that Dr P is a dentist, and she subsequently included particulars regarding the child attending Dr P even though she was unsure whether a dentist fell within the terms of the order.
e)In respect to Dr A, a paediatrician, the mother gave oral evidence that in or about September 2014 Dr A referred the child for a blood test and at the contact visit between the child and his father immediately following that visit, the mother advised the father that the child had attended Dr A and that was the explanation for a small puncture scar in his hand or arm. The mother was not cross examined on that evidence.
f)In respect to Dr U, the mother indicated that she unfortunately forgot the child had attended that appointment, which occurred in early January 2014, shortly after she returned to Australia from Germany, and she had not retained a record of that attendance.
g)In respect to Dr T the mother referred to the fact that the child had only attended that doctor once, and that it appeared the treatment was in respect to a minor illness in the nature of a cough.
h)In respect to Dr K, the mother noted that the appointment occurred on 4 December 2014, after the 19 November letter.
i)In respect to Dr L, the appointment similarly occurred after 19 November 2014.
j)In respect to Dr H, it was noted by the mother that this doctor provided what she described as medical imaging, possibly an ultrasound, but again that service was arranged by the treating doctor and not independently by the mother.
In those circumstances and having regard, in particular, to the mother’s unchallenged evidence that she spent several hours with her instructing solicitor going through the medical records that were produced by way of subpoenas and checked those records against her notes, I find that the mother did make a reasonable attempt to comply with the order.
In summary, therefore, I find that the mother failed to comply with the order of 12 November 2014 because the letter from her lawyers, dated 19 November 2014, did not provide the names of all medical practitioners who had treated the child in the period prior to the orders. However, that failure to provide the information did not amount to a contravention under the Act because:
(a) she did not intentionally fail to comply with the order; and
(b) she made a reasonable attempt to comply with the order.
In deciding these matters, I have applied the standard of proof, as set out in section 70NAF of the Act, which is proof on the balance of probabilities. I have found that the father has failed to discharge the onus on him to establish that non-compliance occurred and that that non-compliance amounted to a contravention of the order. In that respect the father failed to produce sufficient evidence to satisfy the Court that the mother had intentionally failed to comply with the order or had made no reasonable attempt to so comply.
Moreover the mother has provided sufficient evidence to satisfy the Court that she did make a reasonable attempt to comply with the order and the father made no serious assertion that she intentionally failed to comply with the order.
In terms of the mother’s application for an order for costs, when this matter was previously before the Court on 29 June 2015, Johnson J made a point of noting:
That the Court notes that the mother’s solicitor has informed the Court that the mother has achieved approximately 90 percent compliance with the order yet the father insists on a hearing date.
I am not sure as to whether the father was in possession of the mother’s affidavit sworn on 22 June 2015 when the matter was before Johnson J on 29 June 2015, but the father acknowledges that he was in possession of the affidavit prior to today. I note that section 70NCB(1) relevantly provides that where a contravention is alleged and not established:
The court may make an order that the person who brought the proceedings (the applicant) pay some or all of the costs of another party, or other parties, to the proceedings.
Counsel for the mother has made such an application for costs. That application is opposed by the father on the basis that he is suffering from a military service related disability and that the mother has failed to comply with an order for costs previously made against her as a result of the Hague proceedings. I have considered the father’s submission in that respect. However, it appears to me that after the father was advised of the mother’s substantial compliance before Johnson J on 29 June 2015, and certainly after the father received the mother’s affidavit, he was aware that the mother had made a reasonable attempt to comply with the orders of the Court made 12 November 2014.
In those circumstances, where the mother has been required to incur substantial costs, I consider that it would be unfair for her to be expected to pay the costs of today’s proceedings. While I have not been provided with evidence of the date on which the affidavit of the mother was served on the father, it was certainly served prior to today. I will therefore order the father to pay the costs of the mother in respect to today’s proceedings. Those costs will be as agreed or assessed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 7 December 2015.

Associate:

Date: 11 January 2016