Bell & Quiroga
[2022] FedCFamC2F 1825
•19 December 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bell & Quiroga [2022] FedCFamC2F 1825
File number(s): HBC 1192 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – CONTRAVENTION – CHILDREN – Where respondent mother pleaded guilty with reasonable excuse to five counts of alleged contravention – reasonable excuse not established – mother found guilty – bond entered into – respondent mother to pay applicant father’s costs Legislation: Family Law Act 1975 (Cth) ss 70NBA, 70NFE, 117(2A) Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 19 December 2022 Place: Hobart Counsel for the Applicant Ms McLeod Solicitor for the Applicant Ogilvie Jennings Respondent Self-represented Litigant ORDERS
HBC 1192 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BELL
Applicant
AND: MS QUIROGA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
19 DECEMBER 2022
THE COURT FINDS THAT:
1.The Respondent without reasonable excuse contravened Order 5 of the Orders made 4 April 2022 by a Judicial Registrar on the following occasions:
(a)10 August 2022 at 9:00am;
(b)17 August 2022 at 9:00am;
(c)24 August 2022 at 9:00am;
(d)31 August 2022 at 9:00am; and
(e)7 September 2022 at 9:00am.
THE COURT ORDERS THAT:
2.The penalty handed down to the Respondent for contravention of Orders is that she be of good behaviour and not breach any family law Orders for a period of twelve months (12) months from the date of today’s Orders.
3.The solicitor for the Applicant has leave to withdraw.
4.Order 5 of the Orders made on 4 April 2022 by a Judicial Registrar is discharged.
5.The Respondent pay the Applicant’s costs in the fixed sum of $3,000.00 by no later than 19 June 2022.
6.The Applicant and Respondent each enrol in the Parenting Separately course operated by E Services as soon as practicable, and complete such course within 3 months of the date of these Orders.
7.By 4:00pm on 27 January 2023, the Applicant file and serve an Amended Application particularising the orders sought at the final hearing.
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
8.The child X born in 2020 (“the child”) spend time with the Applicant from 9:30am to 2:00pm each Wednesday and each alternate Saturday for three occasions at either C Play Centre or the Suburb D Venue, with the Respondent to notify the Applicant by text message as to which venue she will deliver the child at least 48 hours prior to the time commencing.
9.After three occasions pursuant to Order 8, the child spend time with the Applicant from 9:30am to 2:00pm each Wednesday and each alternate Saturday, with changeover to occur at City B Children’s Contact Centre.
THE COURT NOTES THAT:
A.The Court notes the Bond entered into today by the Respondent marked “A’ and attached hereto.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment B and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
‘A’
IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA REGISTRY: HOBART
MR BELL
ApplicantMS QUIROGA
RespondentBOND
Family Law Act 1975 - Section 70NEC, 70NFE, 112AF
MS QUIROGA, having this day the 19th of December 2022 been found by the Federal Circuit and Family Court of Australia Division 2 at Hobart Registry to have contravened without reasonable excuse an order made by this Court on the 4th of April 2022 on five occasions, is hereby ordered that enter into this bond pursuant to the provisions of Section 70NFEof the Family Law Act 1975.
MS QUIROGA hereby acknowledges that she is bound by this bond according to the following terms and conditions:
(a)This bond starts on the 19th of December 2022 and continues in full force and effect until the 19 December 2023;
(b)The conditions of this bond are as follows:
·To comply with all parenting orders concerning X born in 2020; and
(c)This bond is without surety and without security.
Taken and acknowledged on the 19th of December 2022 at Hobart before me:
Associate
EX TEMPORE REASONS FOR JUDGMENT
JUDGE TAGLIERI
ADJOURMENT APPLICATION
Before me this morning, I have an application for contravention which was filed on 9 September 2022. In submissions this morning seeking to persuade me that I should not hear the application, the mother, Ms Quiroga, has submitted that she has not had time to seek appropriate legal representation or prepare her case in the contravention, the inference being that she wants to adjourn the hearing of the contravention application. Her reasons for not being able to find a solicitor to represent her are the Christmas break and limited availability of solicitors. I reject the reasons and submissions of the mother and have determined that this matter should proceed this morning for the following reasons.
First, the application was filed in September 2022. The mother concedes that she had service of it through her previous solicitor in October, a month later. It is now 19 December 2022 and over two months have passed since the mother has had notice of the contravention application.
I am aware from the history of the proceedings that the mother has had a legal representative in the past on a number of occasions, but has not retained that legal representation. She appeared this morning with legal representation, and the reason given by Ms F for withdrawing today was that she was “unable to have the mother listen to her”. The inference to be drawn and which I do draw is that, to some degree, the extent of which I am not aware, the mother does not appear to be taking legal advice from what I regard to be competent legal practitioners.
It is not a matter for me to be informed of what legal advice she has been given. That is a matter of client privilege and I respect that. But in this matter, I have to balance competing interests. They are the request for adjournment and supposedly to be more prepared for the contravention, with the father’s entitlement to proceed with the application. In balancing those interests it is relevant that the father has not had any time with the child for six months.
So balancing those competing interests together with the imperative for the Court to ensure that court orders are complied with, I consider that it is necessary to conduct this hearing and not adjourn it any further.
CONTRAVENTION APPLICATION
This is an ex tempore judgment given orally concerning the father’s application for contravention dated 9 September 2022. The application is supported by the father’s affidavit of the same date. The application concerns five counts of alleged contravention of an order made on 4 April 2022 by consent.
At the time the consent order was made, both the parties were represented by lawyers. The agreements reflected in the consent orders arose during and as a result of a confidential family dispute resolution conference conducted in the Court. At that conference, according to the usual practice, the parties and their legal representatives, a Judicial Registrar, and a Court Child Expert all participated in discussions. It was common ground at the hearing before me that the conference was a lengthy one, the parties signed the minute of consent, and the Judicial Registrar made the orders on the same day. Relevantly, the orders provided for the father to spend time with the child, who will be two years old next year, 2023, and they required the father to undertake a supervised hair follicle test, and on the proviso that it was negative for all drugs, he could then spend time with the child between 9 am and 12 pm on Wednesdays at particular named locations.
The mother has pleaded guilty with reasonable excuse to all five alleged contraventions, being contraventions occurring on 10 August, 17 August, 24 August, 31 August 2022, and 7 September 2022. It was common ground and not in contest that the contraventions occurred because the mother did not bring the child to the changeover location at City B Children’s Contact Centre on these dates at the times required by the orders. It was also uncontentious and agreed that since July 2022, that the father had not spent any time with the child pursuant to the orders of the Court, despite the fact that the drug test analysis report dated mid-2022 recorded nil drugs present or detected. The drug test result was in evidence before the Court. It is Annexure C to the father’s affidavit of 9 September 2022.
To make out her contention that the breaches were with reasonable excuse, the mother relied on an affidavit which was filed in Court and stated by her on oath to be true. In her affidavit, the explanation for not complying with the orders is twofold:
(1)that she did not agree to the orders that were made by consent. They were consented to by “fiscal pressure on the part of [her] former counsel [Mr J]”;
(2)that her other lawyer, Mr G, had not acted on her instructions to “continue supervised time spent between the father and the child”. I observed that the orders and the effect of the orders of 4 April 2022 were not orders for supervised time in the event of a negative drug test result, which of course eventuated.
It is apparent from the content of the mother’s affidavit that she seeks relief generally and also asks the Court to exercise powers under s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) to vary the orders that were made on 4 April 2022.
The mother was cross-examined in relation to her evidence and the reasons she had not complied with the orders. In brief, her evidence was:
·That she and the father separated before the child was born. At no time since the child’s birth had they spent time with or socialised together;
·She agreed that various entries made in records produced to City B Children’s Contact Centre were there and had been made, the sentiments of which entries were that supervised time had proceeded appropriately and no concerns were apparent. Despite those records, the mother maintained that she had “issues and concerns”, but she did not take any particular issue with the entries in the records;
·When referred to the Tasmania Police subpoena material, the mother agreed that the father did not have a criminal record in Tasmania, but maintained that he did have a history related to some kind of driving offence, but that it was likely to be interstate and over 10 years ago;
·The mother agreed that the father had returned three negative urine tests for drugs and a negative hair follicle test, but she emphasised in her evidence that the first hair follicle test was inconclusive, and she did not accept that the result of that test would have been negative;
·The mother said that she did not oppose unsupervised time, but was concerned about the father driving the child in a vehicle, which concern was based on her own experience of her relationship with him;
·Concerning whether the mother had a reasonable excuse for not complying with the orders, both in her evidence and the submissions she made to the Court, the mother said that she did not think it was right or reasonable that she should be sanctioned for breach. Instead, she sought to vary the orders of 4 April 2022. The mother submitted that the breaches were because of things outside of her control. Namely, on three occasions the child or she were ill; and on the other two occasions, Mr G had not communicated offers to the father to spend time with the child in different circumstances to those set out in the orders;
·The mother conceded that she had signed the consent minute of 4 April 2022, but maintained that she did not agree with them. The mother admitted that only one offer had in fact been made to the father to spend time with the child other than in accordance with the court orders, that offer being made on 1 December 2022; and
·The mother also admitted in her evidence that Mr G had withdrawn from acting for her by late 2022.
The father seeks, pursuant to s 70NFE of the Act, a bond that the mother be on good behaviour for a period of two years, which requires the mother to strictly comply with all court orders in the proceedings, complete a parenting program within three months, and provide security to the value of 60 penalty units. I pause there to observe that, on my calculations, would require the provision of security in the sum of about $13,000.
In addition, he also seeks discharge of the 4 April orders and instead seeks interim orders that the child spend time with him each Wednesday between 10 am and 3 pm and each alternate Saturday from 10 to 3 pm, with changeovers at City B Contact Centre.
As indicated, the mother agrees that the orders should be varied from now, but says that to accommodate the child’s routine and naps, given his young age, the father’s time should occur in public locations and only between 9.30 am and 12.30 pm. She did indicate that there was some flexibility in that. The three locations she identified were H Cafe, a Suburb D Venue, and C Play Centre, being venues with which the child was said to be familiar.
I must now determine whether there was reasonable excuse for the mother’s breaches. The father agrees that when the mother was in breach of the orders prior to 10 August 2022, she had produced medical certificates covering the period July and August 2022, but there is no evidence of a medical certificate for the dates to which the application for contravention relate – that is, from August 2022 onwards. In particular, the mother has not tendered in evidence a medical certificate for any of the dates to which the contraventions relate. Although the mother claims that she or the child were ill on three of the five occasions, as I have mentioned, there is no certificate confirming that to be the case.
The evidence in the mother’s affidavit filed in the Court, which was received during the hearing, is telling. It refers to not attending City B Contact Centre for changeover regarding contraventions from August 2022 onwards. Her evidence is:
At this time, I felt I could not take the risk of unsupervised contact due to the behaviours displayed by [the father] in the past.
This evidence relates to earlier allegations in the affidavit that the father had engaged in an excessive use of illicit substances and driving whilst under the influence of either illicit substances and/or alcohol, which one is not clear. But there is not any independent or objective evidence corroborating her claims.
Further, the mother gave evidence about personally witnessing the father and his family members use illicit substances and alcohol. Her own experience of feeling fearful because of his behaviours and the manner in which he drove, at paragraphs 3 to 5 inclusive of her affidavit, are also untested evidence. They are of relevance to what final parenting orders should be made, but in circumstances where that evidence has not been tested, it is difficult to give them significant weight. I do note, however, that the father’s solicitor had an opportunity to cross-examine the mother in respect of those allegations and did not do so. That leaves the Court in a very difficult position to judge what findings of fact, if any, should be made about the father’s use of alcohol and drug-taking and the risk it presents to the child.
Nonetheless, the mother did consent to an order that upon a negative drug test result, the father’s time could proceed to unsupervised time. It is clear to me from the evidence that I have read from her affidavit that she had a change of heart in about August 2022. I do not accept allegations that she did not consciously make a decision to give consent on 4 April 2022. I accept that she may have reluctantly given consent to the orders, but that is different to not having capacity to give consent.
In circumstances where the conference was undertaken with a Court Child Expert’s assistance and a Registrar’s assistance, I have significant doubts in accepting the mother’s assertion that Mr J coerced her or somehow inappropriately persuaded her to consent to the orders. I accept that sometimes lawyers give forceful and firm advice to clients, but that is different to an allegation of coercion, which is a very serious matter indeed.
It seems that the mother either has an unreasonable or unrealistic view of the risk of harm to the child posed by the father and his past alleged habits, or alternatively, she is misguided in seeking to deprive the child of a meaningful relationship with his father. In either case, given the discrepancies in the mother’s evidence as to why she did not comply with the orders, I am not satisfied that she has a reasonable excuse for failing to comply with the orders on any of the five occasions. I consider the relief sought should largely be grounded, but not entirely.
On this occasion because although I have reached the view that you did not have reasonable excuse it is the first time that you have come before the Court for a breach. In my judgment I will ask you to enter into a bond without surety and without security.
COSTS APPLICATION
I will make my ruling in relation to the question of costs of the contravention proceedings. I accept that the mother has limited income from which she can pay a costs order. I accept that she has been the primary carer solely responsible for supporting the child. Neither party has sought an administrative assessment of Child Support. The usual rule would be that each party pays their own costs, but pursuant to s117(2A) of the Family Law Act, there are various considerations that I must take into account in determining whether to make a costs order. Balancing those particular competing considerations in circumstances where the parties have made very brief submissions in support of those relevant factors, balancing what I do know about the mother’s modest means with the lengths to which the father has had to go to pursue the enforcement of the orders and noting that I have found that the contraventions were without reasonable excuse, I consider that the mother should pay costs, but not in the sum that is being sought. In my discretion balancing those competing considerations I order that the mother pay the father’s costs of the contravention proceedings fixed in the sum of $3,000.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 1 February 2023
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