Beles and Chaney

[2016] FamCA 69

FAMILY COURT OF AUSTRALIA

BELES & CHANEY [2016] FamCA 69

FAMILY LAW – CONTRAVENTION – orders vague and allegations related to minor issues – lack of any specific evidence to justify findings of breach – where breach admitted, reasonable excuse raised and accepted – application dismissed but parties directed to attend directions hearing to reconsider their orders – orders relating to minimal matters suspended in the meantime.

Family Law Act 1975 (Cth)

APPLICANT: Mr Beles

RESPONDENT: Ms Chaney

FILE NUMBER: MLC 3837 of 2014

DATE DELIVERED: 3 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 February 2016

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That the contravention application filed 13 January 2016 is dismissed.

2. Until further order, paras 6, 7, 8, 9, 10, 11, 17, 18, 19, 20, 21, 23, 24, 25, 27, 28, 29, 30, 31, and 32 of the orders made on 16 January 2015 are suspended.

3. That by 4.00pm on 4 March 2016, the mother file and serve an application initiating proceedings (and if so advised, seeking interim orders) setting out what paragraphs (if any) of the orders made on 16 January 2015 (and this day) be varied and what proposals she has in respect of the children of the relationship.

4. That by 4.00pm on 18 March 2016, the father file and serve a response (or any application if the mother does not file one as provided in paragraph (3)) setting out what paragraph (if any) of the orders made on 16 January 2015 and this day be varied and what proposals he has in respect of the children of the relationship.

5. Any applications filed as anticipated by the foregoing orders shall be listed before a registrar for determination as to what control the court should have over the litigation pathway.

AND THE COURT NOTES THAT
Pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beles & Chaney 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 MELBOURNE

FILE NUMBER: MLC 3837 of 2014

Mr Beles

Applicant

And

Ms Chaney

Respondent

REASONS FOR JUDGMENT

1. This is a contravention application filed by Mr Beles on 13 January 2016.  The respondent to that application is Ms Chaney.  They are the mother and the father of B, C and D. 

2. Orders were made by consent of the parties by a Registrar of this Court on 16 January 2015.  The nature of the problem was an agreement between the parties incorporated into an order.  On any view of the evidence that I have heard today, that order was doomed to fail.  The language of the order is vague.  For example, it refers to the parties are to “ensure” they do things. 

3. Such was the level of mistrust between the parties that they even required orders that each of them notify the other “as soon as possible” of any medical emergency, serious injury or illness involving the children.  But it gets worse, because if, indeed, such an incident occurred, they had to do such things as follow prescribing medical professional directions for administering medication to a child.  It is a very sad reflection on parents if they have to have a court order that reflects what parents who love and care for their children do as a matter of course. 

4. There are, for example, further orders which were not the subject of dispute today but which tell exactly what is going on here.  Paragraph 32 of the orders reads:

   Neither party is to expose the children to any kind of violence, alcohol or drugs.

   What responsible parent would expose a child to violence, alcohol or drugs?  But does that mean that children are not to be around their parents when one of them has a glass of champagne in a celebration?  These orders need serious re-examination. 

5. The contravention application itself was not properly prepared.  It alleged that the orders had been breached, but no dates were actually provided.  To found those contraventions, the father relied upon his affidavit.  One might have expected to see precise dates there.  But even there, the details were sketchy.  Rather than this being an application to deal with one contravention, it is clear there are – there were numerous allegations. 

6. In consultation with the parties prior to the evidence being called, I went through each of the allegations.  Because of the fact that there is little or no evidence or at least no evidence that would support my understanding of the orders, I struck out paragraphs 6, 15, 17, 24, 25, 27, 28 insofar as they are allegations relating to those particular paragraphs.  That left allegations that on three occasions the mother had breached the orders by not providing, (under paragraph 30) her change of address details within 24 hours.  The mother did not provide her address within the 24 hours.  The evidence I have is that it was within two to three days, but it was only in response to an email from the father.  When the email was received, she immediately responded.  If that is indicative of the nature of the relationship of the parties insofar as they have care for their children, it is a sad reflection on them both. 

7. The mother gave evidence and indicated that these particular changes of address were more or less forced upon her as a result of circumstances beyond her control, and she was stressed and not in her right state of mind.  Now, one might be cynical about that save that I am told and it seems evident, she has a number of physical ailments.  The father did not deny that, and certainly he has not cross-examined her about the fact that her explanation that she gave the details of her address within two or three days was not right.  Thus, this particular issue is about the question of whether or not there should be strict compliance with the order or whether, indeed, two or three days is excusable. 

8. The second allegation related to a breach of paragraph 23 of the order.  Paragraph 23 is a provision that requires each of the parties to notify the other as soon as possible of any medical emergency, serious injury or illness involving the children.  The father’s evidence was that he was not notified of a serious fracture injury in one of the children for two days.  But in cross-examination, he was shown an email that the mother had written to him some four hours after the incident occurred.  He acknowledged that he had overlooked that.  On that basis, that allegation must be dismissed as being without foundation. 

9. The third category of the contravention relates to breaches of paragraphs 18 and 19 of the orders.  This particular allegation seems strictly to relate to a birthday party of one of the children.  Paragraph 18 requires that if a party cannot take the children to an “activity”, they must notify the other parent and then take the child to the E Park or such other location as they agree to allow the other parent to take the child to that activity.  Paragraph 19 says that if the children do not attend and the other parent is not notified, then the parent who did not take them must “reimburse” the other for the cost of the activity, whatever that may mean.  Again, it is a very sad reflection on the parties that that order had to be made in the first place. 

10. It appears here that there was a birthday party that the father had allowed the child, who was then in the care of the mother, to attend.  The mother’s evidence was on the day of the birthday party, the child was distressed and crying on the way to the party.  She said she tried to settle the child, convincing her that there would be other children at the party.  The child got to the point where she was gagging and almost vomited.  The mother’s evidence, which was largely unchallenged, was that the child would not stop.  She said she then text a message to the mother of the birthday child indicating she was not able to come and told the father verbally, presumably some time later. 

11. There was a significant dispute between the parties as to exactly who said what and when it occurred, but I prefer the mother’s version.  It seems more plausible in the circumstances.  What is curious about that particular allegation, however, is that the issue was about the breach of the precise wording of the order rather than the fact that the child was distressed.  I am satisfied the excuse that  I have been given as to why the child did not go to that party is reasonable. 

12. The law relating to contraventions is set out in Division 13A of Part VII of the Act.  Section 70NAC provides that a person is taken to have contravened an order if and only if where they are bound by the order they have intentionally failed to comply with it or made no reasonable attempt to comply with the order.  The first step in this case is whether or not the mother has contravened the orders. 

13. The notification of change of address was not provided within the 24 hours.  That might say something about the drafting of the original order, because it seems to me that two or three days later has caused no prejudice to the father at all.  It has not been suggested that these children were at risk in any event.  Be that as it may, I am satisfied that for the purposes of section 70NAC the mother contravened the order.  However, I accept evidence of her illness and its consequences.  Her behaviour was reasonable on the basis that she had pressures about changing her address which were beyond her control.  Whilst she did not give the father’s entitlement (and indeed the order) priority, the father was not prejudiced.  I am satisfied of her assurance that it is now not likely to recur. 

14. Section 70NAE provides that a person may be excused in a number of circumstances.  The particular provision sets out a number of examples of circumstances that are acceptable, but the section is not exclusively dealing with those particular provisions.  The Court only has to be satisfied that there is a reasonable excuse.  The reasonable excuse in this case in relation to the birthday party relates to the mother’s particular concern about the child being distressed.  In relation to the address, I find her excuse reasonable. That evidence having been accepted, I am satisfied that she had a reasonable excuse for her failure to comply.

15. On the basis of there being no contravention established because of reasonable excuse, the application filed by the father on 13 January 2016 must be dismissed.

16. Section 70NBA, however, goes on to say that a Court having jurisdiction under this Act may make an order varying a primary order if proceedings in relation to the primary order are brought before the Court having jurisdiction under the Act and contravention allegations are made.  The jurisdiction is enlivened if the Court does not find that the person committed a contravention of the primary order.  That is what has occurred here. 

17. These orders are fraught with difficulty, as is evident by the fact that they are the subject of further litigation only one year after they were made by consent.  I intend to allow the parties to rectify that problem.  The mother seemed to me to make a very sensible solution that the parties go to mediation, but the father’s view is that the mother is not trustworthy and that it would be a pointless exercise.  On that basis, the Court needs to have some control over the matter. 

18. What I propose to do is to make an order that the mother file an application within 30 days setting out what orders should be varied and what she proposes and the father within 45 days set out what orders should be varied, if any, and what he proposes.  I direct that any such application be listed before a Registrar for determination as to what control the Court should have over the litigation pathway.

RECORDED  :  NOT TRANSCRIBED

1. In addition to what I have just indicated, I propose to suspend paragraphs 6, 7, 8, 9, 10, 11, 17, 18, 19, 20, 21, 23, 24, 25, 27, 28, 29, 30, 31 and 32.  Those orders are suspended only until the next hearing before a Registrar where, if necessary, the matter can be transferred to the Senior Registrar for consideration.  Indeed, if either of the parties, but particularly the father, wishes those orders to be resurrected, he can make the application that they should be so. 

2. What I have just done is altered a parenting order.  A parenting order requires the Court to consider at all times that the best interests of the children are paramount.  To determine that, one has to consider the question of the factors set out in section 60CC of the Act. 

3. It is not necessary in this particular case that I deal with parental responsibility, because the parties resolved that issue in 2015.  For the purposes of section 60CC, however, the Court is obliged to look at such issues as not only the involvement of the parents in the children’s lives but also their parental responsibility and their parental capacity. 

4. The findings I have made in relation to the contravention will make it very clear that there are serious communication problems.  It may be that the orders that I have suspended, in reality, need to be put back into place but someone other than the parties needs to examine that.  It may very well be that a Registrar decides that in this particular case, it may be beneficial for the parties to have the assistance of a family consultant to discuss communication and what regulation there is needed in the children’s lives. 

5. In the meantime, it seems to me that there is no prejudice to these children by having those orders suspended.  What it does do, however, is place an onus on the parents to start thinking about their children.  I have, for example, suspended the requirement that the parties communicate with one another about injuries.  It must not be understood that my suspension of these orders means that that communication must not or should not take place.  I can assure the parties that in the event that I was the trial judge in this case, if I found out that there was no such communication – and that includes changes of address and circumstances under which the children are living, I would take a very serious and dim view of that particular parent. 

6. I propose to have these reasons transcribed and be placed on the Court file.  I will make the usual orders under section 65DA and section 62B.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 February 2016.

Associate: 

Date:  16 February 2016