Bell & Quiroga (No 2)
[2023] FedCFamC2F 988
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bell & Quiroga (No 2) [2023] FedCFamC2F 988
File number(s): HBC 1192 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 9 August 2023 Catchwords: FAMILY LAW – parenting – contravention – where respondent mother pleaded guilty with reasonable excuse to seven counts of alleged contravention – reasonable excuse not established on six counts – reasonable excuse established on one count – mother found guilty on six counts – orders made for term of imprisonment of three months – sentence of imprisonment conditionally suspended Legislation: Part 13A of the Family Law Act 1975 (Cth) Div 13A of Part VII, ss 70NFB(2)(e), 70NFA(3), 70NFG
Tasmania Legal Aid Guidelines for Grants Guideline 8(2)C(iii)A
Cases cited: McClintock & Levier [2009] FamCAFC 62
Quiroga & Bell [2023] FedCFamC1A 80
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 31 July 2023 Place: Hobart Counsel for the Applicant: Ms Ryan Solicitor for the Applicant: PWB Lawyers Solicitor for the Respondent: Mr McNally, Advocate Lawyers 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:
9 august 2023
THE COURT FINDS THAT:
1.The Respondent Mother Ms Quiroga (“the Mother”) without reasonable excuse contravened Order 8 of the Orders made by Judge Taglieri on 19 December 2022 on the following occasions:
(a)4 January 2023;
(b)14 January 2023;
(c)18 January 2023;
(d)25 January 2023;
(e)28 January 2023; and
(f)1 February 2023.
2.The Mother with reasonable excuse contravened Order 8 of the Orders made by Judge Taglieri on 19 December 2022 on 11 January 2023.
THE COURT ORDERS THAT:
3.The global sanction handed down for the contraventions found against the Mother is that she be sentenced to a period of imprisonment of three (3) months, to be wholly suspended for a period of twelve (12) months from this date on the following terms and conditions:
(a)The Mother provide three make up visits for the child X born in 2020 with the Applicant Father Mr bell (“the Father”) for two hours at the earliest dates available, supervised at the City B Children’s Contact Service; and
(b)The Mother thereafter complies with the Order 19 made on 9 June 2023; and
(c)The Mother continues to comply with Order 19 made on 9 June 2023.
4.The Mother pay the Father’s costs in the fixed sum of $1,528.98, only to be payable in the event that the Mother fails to comply with the terms of the Orders made by the Court in the judgment delivered 9 August 2023.
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).
REASONS FOR JUDGMENT
Judge Taglieri
On 31 July 2023, I conducted a hearing of the Applicant Father’s Contravention Application filed 21 March 2023 (“the Application”). The Application alleges seven breaches of interim parenting orders made on 19 December 2022, which provide for the Father to spend time with the child. The alleged contraventions were particularised and said to have occurred on:
·4 January 2023;
·11 January 2023;
·14 January 2023 (after unopposed amendment to correct the date);
·18 January 2023;
·25 January 2023;
·28 January 2023 (after unopposed amendment to correct the date); and
·1 February 2023.
The hearing of the Application was listed on 9 June 2023, but was adjourned as the Respondent Mother had recently retained another legal practitioner to represent her shortly prior to the hearing. The parties agreed to the adjournment and also asked the Court to make further interim parenting orders by consent.[1] The further interim orders had the effect of varying the changeover arrangements so that they would be supervised at the City B Children’s Contact Service. In addition, they included protections or restraints to address what the Mother had claimed were safety concerns for the child while spending time with the Father.
[1] Orders 17 to 26 of the Orders made 9 June 2023.
The Father denied protections or restraints were necessary, but agreed to them as encouragement to the Mother to comply with the spend time orders. The restraints included restraining the Father from consuming alcohol or illicit substances when the child was in his care or from removing the child from the State.
The consent restraints had not been included in the 19 December 2022 spend time interim orders, made following a previous contravention hearing conducted on that day (“the first contravention hearing”). Upon the first contravention hearing, the Court had been satisfied that the Mother had contravened the Court’s interim orders for the child to spend time with the Father on five occasions without reasonable excuse between 10 August 2022 and 7 September 2022.
The Mother had appealed the Court’s determination and orders of 19 December 2023, but the appeal was dismissed by Division 1 of the Federal Circuit and Family Court of Australia on 23 May 2023.[2]
[2] Quiroga & Bell [2023] FedCFamC1A 80.
CONTRAVENTION HEARING 31 JULY 2023
The adjourned contravention hearing proceeded on 31 July 2023 and both parties were legally represented.
The Mother admitted that she had contravened the orders of 19 December 2022 on seven occasions, but claimed that in each instance she had reasonable cause for doing so.
The Father relied on his affidavit filed 21 March 2023, which was taken as read unopposed, to establish the alleged contraventions. In addition, his Counsel tendered extracts from the City B Children’s Contact Service relating to 22 December 2022 and 13 January 2023.[3] He contended that all contraventions were without reasonable excuse.
[3] Exhibit A-1.
In seeking to establish that the admitted contraventions were occasioned with reasonable cause, the Mother relied on her affidavit filed 28 April 2023 and an affidavit of Mr C filed 28 April 2023, which were read unopposed. Initially, her legal representative sought to also rely on an affidavit of the Mother’s sister filed 28 July 2023. Given its late filing and service, and because the hearing had previously been adjourned in June 2023, I ruled that this affidavit would not be read as it was too late to afford fairness to the Father in addressing its content.
The Mother was cross-examined. A number of the reported accounts of events in the City B records were initially disputed by the Mother, although she eventually and reluctantly accepted the substance of them. However, she qualified this acceptance with explanations, or deflected or defended her behaviour with a subjective narrative about “safety concerns”.
Having observed the Mother give her evidence, while she may believe her own narrative about concern for the child’s safety, there is no objective or reliable evidence adduced which persuades the Court that there are any real safety concerns for the child in the Father’s care. In arriving at this conclusion, I have considered each of the reasons the Mother advanced for not facilitating time according to the Court’s orders, but reject them for the reasons that follow.
On the evidence before the Court, there is no legitimate basis to assert that the Father continues to use alcohol or illicit substances to a degree possibly or likely to put the child at risk in his care. In fact, the evidence is to the contrary, given the multiple negative drug tests between 13 September 2021 and 6 July 2022.[4]
[4] Exhibit A-2, ExhibitA-3, Exhibit A-4.
The Mother claimed the drug test results were not reliable, but these are mere assertions by a lay person and there is absolutely no expert evidence to support her claim. The tests were all performed by reputable drug testing agencies and the Father has complied with the Mother’s requests or the Court’s orders for testing. Notably, the Mother’s evidence was that no requests for further testing had been made since 3 June 2022.
The Mother also sought to claim that the Father’s family violence towards her reasonably excused her contravention of the orders. However, her evidence about whether she feared the Father or was scared of him was completely unconvincing and evasive. In any event, the Mother’s evidence was that she insisted on personal interaction with the Father, for example private hand-overs rather than professional ones at the City B Contact Service and wanting to engage with the Father to give instructions and directions about routine care of the child. Accordingly, I am not satisfied that she genuinely fears the Father or is impacted by allegations of family violence that she makes. I am not satisfied that family violence provides a reasonable cause to the Mother for not having complied with the Court’s orders.
There were assertions by the Mother about neglect of the child, for example claims he was dehydrated or had a soiled nappy following visits in the care of the Father at C Play Centre. The evidence relating to these assertions is untested, and the Father and Mother give opposing accounts. There was no request made to cross-examine the Father on his affidavit evidence.
Regardless of where the truth lies about alleged neglect, at worst if the claims are true, the risk of harm to which the child is exposed in my view is not of a serious nature and because of the limited time the Father is to spend time with the child, it cannot be considered unacceptable risk of harm. I am not satisfied that these allegations reasonably excused the Mother from facilitating the child’s time with the Father on the admitted seven occasions.
As I observed to the Mother’s legal representative, the Father is relatively inexperienced as a parent because he has not been permitted to spend regular and consistent time with the child, and it can thus be expected that if there are some concerns with his care, if able to spend time with the child, his parenting skills and care can be reasonably predicted to improve.
In addition, the Mother’s own evidence is that the child had been sick with a virus since the last visit at C Play Centre on 31 December 2022[5], and remained unwell until 6 January 2023. This suggests that there may have been a medical cause for the child presenting dehydrated following the visit.
[5] Affidavit of the Mother filed 28 April 2023 at [54].
The Mother also claimed that the Father was a flight risk and that there were no provisions in the orders of 19 December 2022 that required him to return the child following his time pursuant to the orders. Further, that he may leave the State. The Father and his family are known to reside in Tasmania, based on the Mother’s own evidence. There is no evidence at all suggesting the Father would remove the child from the Mother’s usual daily care without a court order. He has complied with orders made in these proceedings.
Further, it is implicit in the terms of Order 8 made on 19 December 2023 that, because the Father is to spend time with the child between fixed times,[6] he is required to return the child at the end of his time because there is an order that the child live with her.[7] I consider the Mother’s evidence about advice from Tasmania Police to be disingenuous. In any event, I give little or no weight to the advice if it was given as the police are unlikely to be aware of all the circumstances pertaining to these proceedings and appear to have had only the Mother’s account of them.
[6] 9:30am to 2:00pm each Wednesday and each alternate Saturday, with changeover to occur at the City B Contact Centre.
[7] Interim order made by consent on 4 April 2022
For all the above reasons, there is no legitimate basis to the claim that the Father would remove the child from the Mother’s primary care.
To the extent that the Mother relied upon the child’s illness on 4 January 2023 as reasonable cause for not delivering the child to the City B Contact Centre for changeover, I am dubious of the explanation. The text the Mother initially sent on 3 January 2023 did not suggest the child was so unwell that time could not occur at all. Instead it merely proposed a different venue to that required by the orders, as by then the Father’s time was to be unsupervised, but with changeover supervised at the City B Contact Centre.
The mother has provided a medical certificate relating to the child’s condition on 4 January 2023 and her evidence was consistent that she did not attend the City B Contact Centre because she instead took the child to the doctor. I accept that she took the child to the doctor, but find that she did so because the Father did not agree to a changeover proposed by her and his time occurring at the Suburb D Venue. I place little weight on the medical certificate as the terms of the certificate are vague, imprecise, and relate to fitness for work, in which a child would not be engaging. I find it unreliable in informing the Court whether the child was unfit to spend time with his Father according to the court orders.
I have real concern about the Mother continuing to furnish such medical certificates written in the way I have described as the certificates have no probative weight.
In respect of the admitted contravention of the court’s order that occurred on 11 January 2023, I prefer the records of the City B Contact Centre as evidencing what occurred that day because they are prepared contemporaneously and by independent persons who are professionally engaged in supervision of children involved in parenting disputes.
However, I accept, based on the Mother’s evidence and Mr C’s unchallenged affidavit evidence, that there may well have been a misunderstanding about how changeover arrangements occurred at the City B Contact Centre. Nevertheless, I also find based on the Mother’s evidence that she had not taken steps to properly inform herself of the City B Contact Centre processes for supervised changeover prior to her attendance on 11 January 2023.
The Mother’s evidence was that she became aware on 11 January 2023 of the City B Contact Centre processes and that they require her to drop the child off 15 minutes earlier than when the Father’s time is to begin and is to arrive to collect the child after the Father’s time has ended. Accordingly, misunderstanding or confusion about this did not afford reasonable explanation for the contraventions after 11 January 2023. In addition, it logically does not explain any alleged future contraventions of the spend time with Order of 9 June 2023.[8]
[8] Order 19.
I find that the mother’s failure to inform herself of the processes of the City B Contact Centre were not child-focussed, but I accept her lack of proper understanding provided a reasonable explanation for non-compliance on 11 January 2023 but not subsequently.
The Mother did not provide a specific explanation for not complying on 14, 18, 25 or 28 January 2023. In her affidavit at [62], she states it is because of absence of restraints about abuse and or neglect. She relied upon the general reasons addressed earlier in these reasons about safety, either of the child or herself. I have rejected those reasons as reasonable explanations and accordingly find that each of these contraventions are without reasonable cause.
The Mother also suggested that a reason for non-compliance at various times was that she was seeking to make alternate agreements about the child spending time with the Father. This does not constitute a reasonable explanation or cause for not complying, as the orders did not provide for the parties to agree alternate arrangements and the Father did not agree.
The Mother’s evidence about the interpretation of Order 8 made on 19 December 2022 was not reasonably open,[9] self-serving at worst and misguided at best. However, she has had multiple lawyers advising her in the parenting proceedings, including in the previous contravention application. I do not accept that misinterpretation of the meaning of the Order is a reasonable explanation for her non-compliance.
[9] For the reasons at [20] of these reasons.
Concerning the breach on 1 February 2023, the Mother appeared to rely on her general reasons about safety for non-compliance, but, more particularly, her claim that she was unwell. The only evidence in support of this bare claim is at [61] of her affidavit and the medical certificate at Annexure “C”. The evidence lacks probative weight because the Mother’s evidence is unreliable and the certificate provided suffers from being vague and lacking detail. Given the general weaknesses in the Mother’s evidence, I do not accept her illness as a reasonable explanation for non-compliance on this occasion. Further, as was put to the Mother in cross-examination, she could have arranged for her mother or sister to deliver the child to the City B Contact Centre, as the evidence demonstrates that they are a close family who are enmeshed in their concern and care for the child.
In summary, I find that the Mother contravened Order 8 made 19 December 2022, on 4, 14, 18, 25, 28 January 2023 and 1 February 2023, without reasonable explanation. Further, the Mother contravened the orders on 11 January 2023 with reasonable explanation.
SANCTION/CONSEQUENTIAL ORDERS
During the hearing before me, I invited the Mother’s legal representative to respond to the preliminary views I had formed that a strong message was necessary to achieve the purpose of Division 13A of Part VII the Family Law Act 1975 (Cth) (“the Act”) if the Court was not persuaded that the Mother had contravened with reasonable excuse. He acknowledged that the breaches, though perhaps not intentional, were misguided and that previous sanctions had not had the desired effect of ensuring the Mother complied with the spend time orders.
Given the attitude of obvious avoidant attitude and behaviour displayed by the Mother to the child spending time with the Father as I have described in these reasons, it is not conducive to the child spending time with the Father to leave the parties to reach agreement about make up time or otherwise. The history of these proceedings demonstrate that, even with court orders, the Father has not had regular time with the child. Instead, there have been significant periods when the Mother has not facilitated the Father’s time and she has now breached orders on a further six occasions without reasonable excuse.
The Mother has contravened court orders for the child to spend time with the Father on five previous occasions and now on a further six occasions without reasonable excuse and one occasion with reasonable excuse. A pattern is emerging which requires a strong message to be sent warning the mother that she must comply with the Court orders for the child to spend time with the father. There is an obvious need encourage and enforce compliance, consistent with the objectives of Division 13A of Part VII of the Act.[10]
[10] McClintock & Levier [2009] FamCAFC 62.
On the previous contravention application, the Mother was ordered to enter into a bond to be on good behaviour without surety or security. Although the Mother sought to argue that the sanction was unjust, Tree J in his judgment on appeal stated:[11]
As to Ground 3, the primary judge imposed a bond “without surety and without security” (at [22]). How such a gentle sanction could be said to be a “plainly unjust” response to five contraventions is entirely opaque. If it be that the injustice lies in requiring the mother to comply with the consent orders she entered into on 4 April 2022 as varied, that is palpable nonsense.
[11] At [20] of the reasons.
Previous sanction has plainly failed to have the desired and intended effect of ensuring the Mother complied with orders for the child to spend time with the Father, as there have been 7 more contraventions, all but one without reasonable cause. A strongly persuasive and serious consequence is now required.
The hearing of this Application was adjourned on 9 June 2023, but the mother has not provided make up time consistent with the terms of the breached order of 19 December 2022 or the 9 June 2023 order. Instead she has offered time but only on conditions that meet her unreasonable beliefs about safety of the child.
Having regard to the staged structure of consequential orders in Division 13A and the relevant statutory provisions, the findings and reasons above invoke s 70NFA(3) of the Act.
The Mother gave evidence that she only works part-time and has limited income. She supports the child and is the primary carer. If she was required to enter into a further bond to be on good behaviour with security, this would likely have adverse financial repercussions impacting on the child. If she were required to enter into a further bond with a surety to be on good behaviour and comply with the court orders, I have no confidence that this would have the intended effect of enforcement pursuant to Division 13A of Part VII of the Act. This is because the persons who may be willing to be surety, for example a family member, are aligned and enmeshed in the Mother’s views based on the evidence received at this hearing.
I have considered if a community service order may have the required effect of securing compliance with the Court’s order for the child to spend time with the Father, but because the Mother works and is the child’s primary carer at present, it is not feasible or practical to make such an order.
Although the Mother has apparently funded her legal expenses, the Court was informed that she had not yet paid the costs order made on 19 December 2022. The Mother gave an explanation for this failure, stating that she believed the Father is legally aided and so a costs order could not be made or did not need to be satisfied.
The explanation is without merit and ignores the fact that her Appeal in respect of the 19 December 2022 orders was wholly unsuccessful and, further, that she was ordered to pay the Father’s costs of Appeal.[12] Further, even if the Father was a recipient of legal aid, the Legal Aid Guidelines require an aided person to recover costs in appropriate circumstances.[13]
[12] Quiroga & Bell [2023] FedCFamC1A 80 at [30].
[13] Tasmania Legal Aid Guidelines for Grants at Guideline 8(2)C(iii)A.
It is an exceptionally serious step to consider imposing a sentence of imprisonment if that is an available option as it is in this case by virtue of s 70NFB(2)(e) of the Act.[14] However, I am left with no option, in my view, other than to impose a sentence of imprisonment of three months to serve the purpose of enforcement and deterrence for the reasons given above. However, I consider it is appropriate in all the circumstances to suspend the sentence on terms and conditions that:
[14] Section 70NFG of the Act and conditions provided for therein.
(a)The Mother provide three make up visits for two hours at the earliest dates available, supervised at the City B Contact Centre; and
(b)The Mother thereafter complies with the Order 19 made on 9 June 2023; and
(c)The Mother continues to comply with Order 19 made on 9 June 2023.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri . Associate:
Dated: 9 August 2023
2
0