BENSON & HIGGINS

[2017] FamCA 1180

FAMILY COURT OF AUSTRALIA

BENSON & HIGGINS [2017] FamCA 1180

FAMILY LAW – CONTRAVENTION – Parenting – Where the father alleges the mother has not provided the child to spend time with the father as ordered – Where the mother denies contravening the orders as alleged – Where the mother is found to have contravened the primary parenting orders without reasonable excuse – Where the mother will not agree to enter into a good behaviour bond – Where the mother is fined three penalty units.

Family Law Act 1975 (Cth)

APPLICANT: Mr Benson

RESPONDENT: Ms Higgins

FILE NUMBER: BRC 10827 of 2007

DATE DELIVERED: 23 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 23 May 2017

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

Orders

THE COURT DECLARES THAT

1. The mother contravened Orders made by Justice Forrest on 14 September 2016, without reasonable excuse, by failing to do all things necessary to cause the child, B born … 2003, to spend time with the father.

2. The mother has failed to establish a reasonable excuse for failing to comply with the Orders made on 14 September 2016.

3. The mother’s contravention of the Orders made on 14 September 2016 is a more serious contravention for purposes of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

IT IS ORDERED

1. That pursuant to s 70NFB(2)(d) of the Family Law Act 1975, on or before Friday, 22 September 2017 the mother must pay to the Registrar Manager of the Brisbane Registry of this Court, a fine of $540, being the equivalent of three (3) penalty units.

2. That pursuant to s 70NFB(2)(c) the father shall be compensated for time that the child, B born … 2003, did not spend with him as a result of the mother’s contravention of the Orders made by Justice Forrest on 14 September 2016, as follows:

   (a)In addition to the time that the child is to spend with the father already, pursuant to paragraph (3) of the Orders of 14 September 2016, the child shall also spend the following time with the father:

   (i)Commencing on Sunday, 28 May 2017, from 9.00 am Sunday to 4.00 pm Sunday, each Sunday during school term that is not already included in the current alternate weekends that she spends with him, with such Sundays to continue until she has spent twelve (12) such additional Sundays with the father;

   (ii)from 9.00 am on the second Wednesday until 5.00 pm the following Saturday of the June/July 2017 school holidays; the September/October 2017 school holidays; the April 2018 school holidays; and the July 2018 school holidays.

3. That any further Contravention Applications filed in this matter shall be listed for hearing, where practicable, before his Honour Justice Forrest.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10827 of 2007

Mr Benson

Applicant

And

Ms Higgins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 14 September 2016 I made final Orders in this parenting dispute between Mr Benson and Ms Higgins, who are the parents of 13 year old B. They were not the first final orders that had been made in this parenting dispute between these two parents.  As I have just been reminded by the mother in her submissions to me, this matter has been backwards and forwards, coming to and fro, in this Court for about ten years.  That highlights the intractable nature of the parenting dispute that exists between the two parents.

2. I must say, the Orders that I made on 14 September 2016 were not the first time that I had dealt with this matter as between these two parents. I cannot immediately recall the number of times I have seen them and heard them, both unrepresented on each of the occasions they have appeared before me, I am quite satisfied to say following all that experience of all the times I have had the parties before me, that the mother has little or no respect for the father’s role in the life of her daughter, despite what she might say to the contrary.  History and her actions, in my respectful view, demonstrate that.

3. Having made orders on 14 September 2016, not so very long ago one would say, the parties are now back before me on the father’s contravention application, in fact he has filed three Applications for Contravention since February this year. 

4. The primary orders that he asserts the mother has contravened provide for their 13 year old daughter to live with the mother, as she always has, but they particularly provided for her to spend time with her father in the following terms.  Firstly, during school term, each alternate weekend from 9.00 am on Saturday morning until 5.00 pm on Sunday afternoon, commencing on the first weekend of each school term, so there is no doubt about which weekends during school term are the alternate weekends.  Then, the orders provided for Christmas school holiday time between the child and the father, divided into two blocks, each block of about a week in length.  The first block is to commence each Christmas Day at 5.00 pm in the afternoon and is to go until 5.00 pm on New Year’s Day, then the child goes back to spend a week with the mother.  The second block of another week is to commence at 9.00 am on 14 January each year and is to last until 5.00 pm on 21 January.

5. The evidence tells me, and past evidence that I remember hearing in the case, tells me that during at least one of those weeks, if not both of them, the father makes arrangements to take the child for a holiday down at the Region G, if I recall correctly, and on at least one of those weeks generally his parents, that is the child’s paternal grandparents and sometimes other members of the father’s family join him and the child at the Region G for a family holiday, not unlike thousands and thousands of other Australian families in January each year.

6. The orders also provide for the child to spend time with her father during other school holidays, namely, in a predictable and set pattern each year for the first week of each of those other school holidays, commencing at 9.00 am on the first Saturday and concluding at 5.00 pm on the following Sunday.  There is no alternating between the first half and the second half as there are in many orders, and just as I did with the Christmas school holidays, the time that the child was to spend in her father’s care was defined, clear and certain, and set that way so that it would be the same year after year so that there would be less room for dispute between these parents.  I was satisfied when I made those orders that the more flexibility or uncertainty that was built into the orders, the more likely there would be dispute between the parents.

7. Three months after I made those orders, the child spent a weekend with her father, it was the weekend ending on Sunday, 18 December 2016, and that was the last time before now that the child has spent any time pursuant to those orders with her father.  The father’s case presented diligently through three separate Application-Contravention that he filed on 6 February, 13 March and 10 May 2017 is that the child has not been made available to him for time on any of the holiday occasions that she was meant to be with him or any of the alternate weekends during school term that she was meant to be with him and indeed he even says he has not had the telephone communication with her on a Wednesday night that the orders provide for.

8. The father has asserted in his evidence that the child was not made available to him at 5.00 pm on Christmas Day, 25 December 2016, when he went to what he asserts was the agreed and customary place of pickup.  I mention that because paragraph 3(d) of my order of 16 September 2016 specifies with certainty that the child is to be collected by the father from the mother at the commencement of the time that she spends with him from outside the door of the S Store situated in T Street, Suburb U, and to be returned by the father to the mother at the conclusion of the time she spends with him at the same location. 

9. However, the father says in his evidence that they had, by agreement and custom, changed the location and had been handing the child as between themselves at the commencement and conclusion of time at a place that he simply describes as Location V as I understand it, somewhere near there.  I do not know the reason why such agreement was said to have been made, but that is what he said has happened.  He says he went there on the day of Christmas Day and waited and waited but the mother and the child did not turn up.  He said he did the same at 9.00 am on 14 January at the start of the next week.

10. The mother’s position when she was called upon to state her position was that she has not contravened the order. She did not assert to the Court or make the plea, as I describe it in formal terms, of a contravention with reasonable excuse, but rather asserted to the Court that she had not contravened the order.  In her evidence she was at pains to point out that she went to the S Store at T Street at 5.00 pm on Christmas Day.  She even has attached some photos to her affidavit which she says were taken outside the S Store showing herself and the child to be there on the occasion. 

11. The mother asserts that the child did not want to go with her father. The two photographs of the child alleged to have been taken at 5.00 pm that day do not really reflect in my view any distress on the part of the child, probably I am prepared to say, on the balance of probabilities, because she was not expecting the father to turn up there. 

12. I am satisfied that there was an agreement and a customary practice between the parties for a different place to be a place of handover, not the S Store.  I am satisfied that the mother simply went to the S Store and maintains she went there to be able to say that she complied with the wording of the order, not realising that an agreed and customary change to such order would necessitate, unless there was some other notice to the father, an attendance by her and the child at that other agreed location, notwithstanding the order.

13. In any event, even if she did turn up at the S Store at 5.00 pm and waited for some time, about an hour or so later, it is agreed that the father went to the location where he expected the mother and the child would be and would be found.  He was obviously aware that they were attending with a congregation of other worshippers at a place of worship in Brisbane. 

14. It is agreed that he went there and saw the mother and that the child was there and he waited for some time.  It is agreed that the mother came out and spoke to him.  It is agreed that she did not hand the child over to the father. The father says he did not see the child when he was talking to the mother. The mother says the child had gone into the girls toilets and was upset and allegedly unwilling to go with her father. 

15. I must say on the balance of probabilities, having regard to my views about the mother’s credibility, formed not only today but over the time I have been handling this matter and deciding disputes in it, I am not in a position to say that I accept that the child was upset that night and unwilling to attend. 

16. The father says that on 14 January 2017 he went to the same customary handover place at 9.00 am and waited and the child was not presented.  The mother again says in her affidavit that she went to the S Store and she puts pictures attached to her affidavit that include a picture of the child in a seat restrained by a seatbelt in a car, the whereabouts of which I have no idea where it was taken, but is said to have been taken near the S Store, and another picture which looks to be outside the S Store, of the child said to have been taken that morning, looking very happy and nothing other than joyfully awaiting the arrival of the father if she thought he was coming. She certainly does not look like she’s distressed or unwilling to attend.  Maybe again, this is because the mother knew that the father was not going to turn up at the S Store, that is what I am more inclined to think. 

17. In any event, the holiday week that the father had planned for the child again did not eventuate.  From then on, although the mother says on occasions she turned up at the S Store, it is clear that the child has not been made available to the father for his alternate weekends or any other holiday time such as the holidays at the end of first term earlier this year, which took place in early April.

18. The mother advances a case that the child does not want to go to spend time with her father because she asserts something about the unpredictability of the father’s behaviour.  To my dismay, the mother has attached to her affidavit many, many documents, the relevance of which she did not even take me to in her submissions, but most importantly two documents which she says are handwritten notes of the child. These are Exhibit E to the mother’s affidavit.  The first one says this:

    My name is B and I am in grade eight at [W] State High School.

    Then it says “no, I do not like [the father]”, like she is answering a question, “or the way he treats me”.  “[the father]” of course being her father, she is clearly referring to the man she might otherwise call “Dad” as “[the father]” for some reason.  “And I want to stay with my mother” I do not know what that is meant to mean.  There is no suggestion at this point that the child is going to be moved to live with her father.  It does not suggest to me that she is not prepared to go on weekend visits with her father, I do not really know what it is put before me for, but as I say, I despair at the thought of the mother having the child write this so she could attach it to the affidavit.

19. The second document is even more perplexing and causing of despair.  It is a note that the mother says the child wrote some time in the past where she is seeing herself at 17 and writing to herself at the age of 17.  Quite apart from showing that the child’s academic work needs some careful work, such as her spelling and grammar and her use of punctuation, the letter is disturbing  because it has the child saying “Happy 17^th berthday [sic] B Higgins, you probably have your own car by now”, only leading me to wonder where she  might have got that idea from, “and you don’t have to worry about your dad because you dont see him eny [sic] more”, I am as much disturbed about the spelling mistakes as I am about her saying she does not have to see her dad any more.  Then there is an insertion thereafter as if it is an afterthought, perhaps coached or encouraged by someone else, like her mother, saying “but still love him”.  Why that is put in there I am just as perplexed.  It says “you are home schooled by [Ms X]” who I am told is the mother’s sister “with [Y] and [Z]” who I am told are the child’s cousins.

20. Again, as an aside, I despair at the thought of a 13 year old child thinking that when she is 17 it would be good to be home schooled by her auntie.  I doubt that she will think that when she is 17.  In any event, what that evidence was put before me for I do not know. I can only speculate that it was somehow put before me to show that the child has wishes that she does not want to see her father. It does not convince me of that.  It just causes me to despair even further to this point in time in the matter and be troubled by the mother’s involvement in causing the child to think that way and write that way and the mother’s line of thought in thinking that that was a good idea to put that material in an affidavit that was going to be read by a Judge of this Court.

21. The father’s Contravention Application is, as applications in contravention in parenting cases are, dealt with pursuant to Division 13A of the Family Law Act 1975 (Cth) (Family Law Act). That Division is headed “Consequences of failure to comply with orders and other obligations that affect children”.  Section 70NAA says that:

    This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.

22. Section 70NAC quite relevantly is headed “Meaning of contravened an order”.  It says:

    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;

23. Section 70NAE sets out circumstances in which a person who has contravened an order may be taken to have had, for the purposes of Division 13A, a reasonable excuse for contravening an order under the Act affecting children.

24. I am quite satisfied in the factual circumstances of this case, notwithstanding the evidence I have heard from the mother, that she has contravened the order.  I am quite satisfied that she has intentionally failed to comply with the order and as well made no reasonable attempt to comply with the order. I am also satisfied that no reasonable excuse as is provided for under s 70NAE has been made out by the mother. I do not regard it as a reasonable excuse or a non-contravention of the order for the mother simply to say ‘‘my 13 year old girl is unwilling to go and I can’t make her go”.  That does not explain why the child has not had telephone contact with the father either. 

25. There is clearly, as I have said to the mother today, and not only today, (I am satisfied I have said it on a number of previous occasions), clearly an obligation upon her to ensure that the orders are complied with.  That is, to take all reasonable steps that a parent might take to ensure that her daughter goes and spends time with her father. It is, although the mother does not think so, in her child’s best interests to maintain a relationship with her father, particularly through her teenage years as she moves into adulthood. It is quite natural for that relationship to be strained from time to time as an adolescent female starts coming to terms with the imminent arrival of adulthood and the father, as many fathers do and as mothers do, comes to terms with the growing independence of their teenage adolescent child.  That is part of the wonder of human life and the joyful experience of parenthood and family life. For teenagers growing up, although they might not think so at the time, they will realise one day that it is part of the wonder of the human condition. 

26. There is an obligation on the parent, such as the mother in this case,  to make sure that it happens in her daughter’s interests, whether she thinks it is in her daughter’s interests or not.  I am quite satisfied in this case that the mother is quite determined that it is not in her daughter’s interests and does nothing to encourage or facilitate the child to spend time with her father save for the very barest minimum type compliance that as at Christmas Day she no longer chose to do. I am quite satisfied that the father has proven that the mother has contravened the primary orders that I made only three months before they started being contravened without a reasonable excuse.

27. Having earlier pronounced my determination that I was satisfied that the mother had contravened as alleged by the father, my primary orders of 16 September 2016, without reasonable excuse, I then called on the parties to make submissions in respect of how the matter should be dealt with, ie the consequences that should follow my determination with particular reference to subdivisions E and F of Part 7 Division 13A of the Family Law Act.  Those two provisions include the provisions as to how the Court is to deal with a finding of contravention against a respondent in a contravention application, in two separate scenarios.   The first being if the Court is ultimately satisfied that the contravention should be properly described as and considered to be a less serious contravention or alternatively whether the Court ultimately considers that the contravention should be considered as and described as a more serious contravention which is included in subdivision F. 

1. The father hesitatingly made submissions, although in a respectful fashion, that I should determine that the mother’s contravention without reasonable excuse falls within that more properly described as a more serious contravention.  I consider that he is correct about that and accept his submissions in that regard.  I am quite satisfied, as I said earlier when pronouncing my judgment on the contravention application, that the mother’s contravention of my primary orders providing for the child to spend some time during the holidays and alternate weekends with the father, was deliberate and motivated by having little regard and respect for the maintenance of a meaningful relationship between the child and her father and with really no reasonable effort or meaningful attempt made by the mother to comply with the orders. 

2. Indeed, as I have said, I was already satisfied that her assertions that she attended as the S Store for handovers on 25 December 2016 and 14 January 2017, were just part of a rouse, a manufactured position to be able to assert to the Court that she did comply with the orders when indeed she knew from their previous customary arrangement that the father would not be attending at the S Store to collect the child. I have no difficulty in determining that the matter is a contravention without reasonable excuse to be regarded as a more serious contravention and to be dealt with pursuant to the provisions of subdivision F of Division 13A of the Family Law Act. 

3. Additionally, what fortifies me in that view is the fact that it is not the first time that the father has brought the mother before the Court on alleged contraventions, although he has on previous occasion, at least once, withdrawn or discontinued a contravention application, probably, if I remember correctly, at my urging.  He certainly has had the mother here before the Court on a previous occasion for a contravention and I am quite satisfied that I have warned the mother and told the mother before of the Court’s expectation that she complies with primary orders; the Court’s expectation that she causes her 13 year old daughter to attend the time that the orders provide for; and of the consequence that might follow if she is found to have contravened as she has been today.  It seems as if she has taken no real regard to any of those previous warnings. 

4. The father submitted that there were two consequences that are available pursuant to s 70NFB of subdivision F that should apply, namely that there should be some compensatory time provided for the child to spend with him to make up in some way for the time that she did not spend with him pursuant to my primary order as a result of the contravention.  He also urged upon the Court that having the mother enter into a bond would be an appropriate outcome.  After hearing the submissions about that, I was persuaded to the likely correctness of that approach in the circumstances. 

5. However, the provisions of the Act require the respondent who is being asked to enter into a bond to voluntarily agree to do that. I asked the mother if she would agree to enter into a 12 month good behaviour bond conditional upon an acknowledgement that she would comply with the primary orders that had been made and she firmly told the Court that she would not. Quite clearly, that troubles me and causes me to speculate on her reasons why she refuses to enter into a good behaviour bond to comply with the orders and makes me think that perhaps she has no intention of complying with the orders in the future. As I have said already today, I am dismayed of her position in itself and that thought dismays me even further.

6. In the circumstances, I am left considering that the imposition of a fine on the mother is one of the only appropriate options still open to me.  The father did not support the notion of a fine.  He did not indeed think that that would be a good thing, particularly having regard to the fact that the mother principally financially supports their child in this case.  However, short of imprisoning the mother, which at this stage I am not satisfied would be an appropriate outcome, and with her refusal to enter into a bond, there is not much left for me to consider as appropriate to impose as a consequence upon her, other than a fine.

7. Satisfied that I am going to fine the mother in this case, I am also conscious of the obligations imposed upon me by s 70NAF of the Act. Section 70NAF(3) tells me that I may only make an order under s 70NFB(2)(d) if I am satisfied on the high end of the standard of proof, namely, beyond a reasonable doubt, that the grounds for making the order exist. Considering that I am minded to impose a fine on the mother and bearing that section in mind having regard again to the evidence that I heard today, I am quite satisfied that I am persuaded beyond a reasonable doubt that the grounds for making the order, namely the mother’s contravention without reasonable excuse, and the fact that it is a more serious contravention, have been established beyond a reasonable doubt.

8. Having said all that, I intend to fine the mother the equivalent of three penalty units. The current value of a Federal penalty unit pursuant to legislative regulations, is $180 per unit.   It is expected to go up in July to $210 per unit, but at the moment penalty units are $180 per unit.  As I said I intend to fine the mother a penalty of three units, which is $540 in total.  Before I set a timeline I intend to ask the mother how long she submits I should give her to pay the sum of $540. 

9. I have asked the mother how long she considers would be reasonable to let her pay $540.  She has asked for the time until Christmas. Today is 23 May, so that would be seven months.  I consider paying $540 in seven months, when she has already told me that she earns something like $32,000 a year or $615 a week through all her sources of income, to be too long.  I would consider four months to be an appropriate period to give her, that lets her pay it off at $130 per month.

10. Having found the mother to have contravened, without reasonable excuse, my primary order of 16 September 2016, providing for the child, B born in 2003, to spend time with her father, and satisfied beyond a reasonable doubt that she so contravened, I make the following orders.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 23 May 2017.

Associate: 

Date:  26 November 2019