BICKERTON & SEASTROM

[2021] FCCA 192

FEDERAL CIRCUIT COURT OF AUSTRALIA

BICKERTON & SEASTROM [2021] FCCA 192

Catchwords:
FAMILY LAW – Application – contravention – reasonable excuse established.

Legislation:

Family Law Act 1975 (Cth), ss.70NAA, 70NAC, 70NAE, 70NAF, 70NBA,

70NDA, 70NEA, 70NFA

Cases cited:

Childers & Leslie [2008] FamCAFC 5

In the marriage of O’Brien [1992] FamCA 52

Taikato v R [1996] HCA 28

Applicant: MR BICKERTON

Respondent: MS SEASTROM

File Number: PAC 920 of 2018

Judgment of: Judge Obradovic

Hearing date: 4 February 2021

Date of Last Submission: 4 February 2021

Delivered at: Parramatta

Delivered on: 5 February 2021

REPRESENTATION

Appearing for the Applicant: Ms Rysiok

Solicitors for the Applicant: As Family Lawyers

Counsel for the Respondent: Ms Conti-Mills

Solicitors for the Respondent: Makdo Family Lawyers & Associates

ORDERS

1. A finding be recorded that the Respondent contravened the orders of the Federal Circuit Court made on 1 May 2020 in that:

   (a)On 27 June 2020 at B Park, the Respondent with reasonable excuse refused to allow the Applicant to spend time with the children X and Y.

2. Each party pay his or her own costs of and incidental to the contravention proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Bickerton & Seastrom is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

PAC 920 of 2018

MR BICKERTON

Applicant

And

MS SEASTROM

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to the proceedings are the parents of X who was born in 2008 and is 12 years old, and Y who was born in 2017. On 1 May 2020, the Court made interim parenting orders by consent. By those orders, the children were to spend supervised time with the father for no less than two hours each fortnight for a period of three months.

2. By way of Application-Contravention filed 17 July 2020, the father alleges as follows:

   a)In contravention of Order 2 of Orders made on 1 May 2020, it is alleged that on 16 May 2020 at 1pm at B Park, the Respondent without reasonable excuse refused to allow the Applicant to spend time with the Children X and Y.

   b)In contravention of Order 2 of Orders made on 1 May 2020, it is alleged that on 30 May 2020 at 1pm at B Park, the Respondent without reasonable excuse refused to allow the Applicant to spend time with the Children X and Y.

   c)In contravention of Order 2 of Orders made on 1 May 2020, it is alleged that on 13 June 2020 at 1pm at Park B, the Respondent without reasonable excuse refused to allow the Applicant to spend time with the Children X and Y.

   d)In contravention of Order 2 of Orders made on 1 May 2020, it is alleged that on 27 June 2020 at 1pm at B Park, the Respondent without reasonable excuse refused to allow the Applicant to spend time with the Children X and Y.

3. On 14 September 2020, the Court dismissed charges 1, 2 and 3 on the basis that there was no prima facie case established, and recorded the respondent’s plea of guilty but with reasonable excuse in respect of charge 4. The reasonable excuse argument was set down for hearing on 27 January 2021, but the matter was not reached on that day. The hearing concluded on 4 February 2021.

4. The mother relied upon s.70NAE(5) of the Family Law Act 1975 (Cth) in respect of the alleged contravention. This is but one of the circumstances in which a respondent to a contravention application may be found to have had a reasonable excuse for contravening an order.

5. The onus of proof rests with the mother to establish that she had a reasonable excuse for the contraventions.[1]

   [1] ss.70NDA(c); 70NEA(1)(c); 70NFA(1)(c)

6. The crux of the mother’s arguments is that X is frightened of the father, that despite her best attempts and encouragement she cannot force him to spend time with the father. Furthermore, the mother explains that X’s opposition to Y spending time with the father is so strong that it stopped Y from spending time with the father.

7. On 27 July 2020, the order for the children to spend time with the father was suspended, and instead an order was made for only Y to spend supervised time with the father, and that the mother was to ensure that X not be at changeover.

The Law dealing with Contraventions

1. The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A of the Family Law Act1975 (Cth).

2. Division 13A is organised in a progression from lesser to greater seriousness, as explained in s.70NAA. In summary it deals in turn with:

   a)Preliminary matters, including definitions and a provision relating to the standard of proof (s.70NAF): subdivision A;

   b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;

   c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;

   d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;

   e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;

   f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F

3. The meaning of “contravened an order” is set out in s.70NAC of the Family Law Act1975 (Cth):

   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;

   …

   (Emphasis in original)

4. The meaning of “reasonable excuse” is, relevantly[2], found in s.70NAE of the Act, which reads:

   5. A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)  the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   [2] As noted earlier, this is the subsection the respondent relied upon at hearing

5. In Taikato v R[3] the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:

   … what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defences of ‘reasonable excuse’ is an exception…

   … Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.

   [3] [1996] HCA 28; (1996) 186 CLR 454 at p464-466 per Brennan CJ, Toohey, McHugh & Gummow JJ

6. Section 70NAE was considered by Warnick J in Childers & Leslie[4] where his Honour said:

   [4] [2008] FamCAFC 5; (2008) FLC 93-356

   22… s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.

   23.The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.

   24.While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “...necessary to protect the health...” and “...not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.

   …

   29.… The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in  In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:

   ... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.

   30. Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.

7. A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.[5]

   [5] In the marriage of O’Brien [1992] FamCA 52; (1993) FLC 92-396

8. The Court is however not limited to the matters set out in s.70NAE(5). The clear meaning of s.70NAE(1) is that the various sub-sections mentioned therein are not the only circumstances in which a reasonable excuse may be found.

Has the mother established a reasonable excuse?

1. By way of background, the mother says that in accordance with the Orders of 1 May 2020, supervised time between the father and the children commenced on 16 May 2020. The mother says that she attended with the children at the agreed place with the children on each of 16 May 2020, 30 May 2020, and 13 June 2020[6], but that on each occasion the supervised visit had been cancelled due to X being adamant that he did not want to spend time with the father, despite encouragement from her and the supervisor.

   [6] And after 27 June 2020 on 11 July 2020

2. On 14 May 2020, X commenced attending counselling, the mother says in accordance with recommendations of the Family Report dated 7 February 2020. He attended sessions on 14, 21 and 28 May 2020 and 4, 11 and 18 June 2020. The counsellor who saw X opined that “X presents as feeling stressed and anxious.” The counsellor further opined that for X to attend counselling with his father “could further impact the trauma that he has experienced”. One might draw from this, that spending time with the father, even in a supervised setting, might have a similar effect on X, or at least that there is a risk that this might occur.

3. On 27 June 2020, the mother arrived with the children at B Park at 12.50pm for supervised time which was due to commence at 1pm. She met with the supervisor, who at 1pm was with the mother and the children. X was expressing that he did not want to see his father, with words to the effect “I don’t want to see him… I’m scared of him, he hurt me… I want to go in the car and go home.” Both the supervisor and the mother then encouraged X to spend time with the father and attempted to convince him to go with the supervisor to see the father. During these attempts, X said to the mother that he was starting not to trust her because she kept bringing him to supervised visits with the father. X became extremely distressed, at one point climbing up a tree and refusing to come down. He referred to the father as a “rat” and that he deserved to be dead.

4. After 1 hour of unsuccessful attempts by the mother and the supervisor at making X spend time with the father, the supervisor spoke to the father and explained X’s refusal. According to the supervisor, the father said “It’s his mum, if she really wanted him to come and see me, she would have tried the past 8 weeks.”

5. The father then asked if Y only could spend time with him. The mother did not agree to this for a number of reasons. Her understanding of the orders was that the children were to spend time together with the father, and that the orders did not provide for the children to individually spend time with the father.

6. Next, and more importantly, the mother was of the belief that due to:

   a)X’s highly distressed state;

   b)X saying to Y “Y don’t go. You are going to meet a bad guy”;  and

   c)X, on the father’s approach with the supervisor trying to grab Y and saying “No mum he is going to hurt us again”

   that to cause Y to spend time with the father was detrimental to X’s mental health and would cause him further mental harm and upset.

7. Taking into consideration all of the evidence before it, the Court finds that the mother has established, on the balance of probabilities, a reasonable excuse for the contravention within the meaning of s.70NAE(5). The Court is satisfied that the mother believed on reasonable grounds that the actions she took were necessary to protect the health and safety of X, and that the time during which the children did not spend time with the father was no longer than necessary to protect the health and safety of X.

8. This contravention application and the submissions made on behalf of each of the parties only highlight the complexities of the children’s circumstances and the difficulties they and the parents are facing.

9. There are substantive proceedings on foot which are progressing along, which were commenced in March 2018 where the parties have had a Family Report available to them since early 2000. The parties and the children have the benefit of an experienced Independent Children’s Lawyer. Further interim orders were made on 27 July 2020. The father has now filed an application in a case seeking an order for family therapy to include Y but not X as time in accordance with the July 2020 orders has not been occurring.

10. It is not appropriate, in circumstances where there is now a pending application for family therapy, for the Court to consider – without any evidence – making an order for family therapy pursuant to s.70NBA, or to further vary the orders given the issues which remain outstanding.

11. The Court therefore makes orders as set out at the forefront of these Reasons.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 5 February 2021