Bourman and Huffman

[2019] FamCA 58

FAMILY COURT OF AUSTRALIA

BOURMAN & HUFFMAN [2019] FamCA 58

FAMILY LAW – ORDERS – Alleged Contravention of Parenting Orders

Family Law Act 1975 (Cth) ss 70NA(4), 70NDA

APPLICANT: Mr Bourman

RESPONDENT: Ms Huffman

INDEPENDENT CHILDREN’S LAWYER: Mrs L McGregor

FILE NUMBER: CAC 1577 of 2017

DATE DELIVERED: 7 February 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 4 February 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Andrew Warren Associates

SOLICITOR FOR THE RESPONDENT: Wendy Evans Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

1. I find that on 8 December 2018 the Mother contravened Orders 2 and 3 of the orders of 17 August 2018 by failing to provide X and Y for time with the Father, but did so with reasonable excuse.

2. No order for compensatory time is made.

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 Bourman & Huffam 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 CANBERRA

FILE NUMBER: CAC 1577 of 2017

Mr Bourman

Applicant

And

Ms Huffman

Respondent

REASONS FOR JUDGMENT

1. In this matter there are interim parenting orders in place that provide for the Father to have limited supervised time with the child X, who is about five years old, and limited partly unsupervised time with the child Y, who is three years old.  Orders were made on 17 August 2018 relevant to the question of the time that the Father is to spend with X and Y and say as follows:

   2.Until further order, X spend supervised time with the father through B Group C Town, as able to be facilitated by B Group.

   3.Y will spend time with the father on the days X has supervised time, commencing at the commencement of X’s time and ending three hours after the end of X’s time.

   4.There is no requirement for the father’s time with Y to be supervised.

2. The current Contravention Application alleged six contraventions which reduced to five as the Father did not press the first of those contraventions. 

3. The second contravention dealt with X not being delivered for supervised time on 1 September 2018.  The Mother agreed that X was not delivered, admitting the breach and asserting that she had a reasonable excuse.  Despite the admission made by the Mother I am not satisfied that there is a breach of the obligation that rests upon her from the orders. 

4. The circumstances of X’s non-attendance for the supervision were that the Mother took both X and Y to the scheduled time at B Group.  X refused to get out of the car.  The supervisor became involved, X continued to refuse.  The Mother says there was about five minutes of efforts in getting X to attend.  The worker ultimately completed a child refusal form.  The obligation on the Mother to produce X for time is predicated on that time being able to be facilitated by B Group.  The worker's actions and acceptance of X's refusal means that this visit falls into a category where it was not able to be facilitated by B Group.  Therefore, there is no obligation for X to attend that time and therefore despite the admission made by the Mother there is no breach of that obligation. 

5. The third and fourth alleged contraventions relate to 24 November 2018.  On that day X was not delivered at all and Y was only delivered for supervised time.  The Mother again admitted that she was in breach of the orders.  However, I am not satisfied of the contravention as although the Mother is recorded in the subpoenaed material as having made clear to B Group that she would not be taking X and Y, she said this was a consequence of B Group’s advice.  What determines the matter is that their records show that on 22 November 2018 they advised the Father that they had cancelled the time with X.  That is, that time with X was not made available by B Group and so there was no breach of an obligation by failing to produce X.  I should note that the proper construction of the orders means that Y's time is contingent at least on X’s scheduled time being available.  Once that is not available there is no obligation in respect of Y.  Accordingly, there is no contravention in respect of counts three and four.

6. The fifth and sixth counts relate to 8 December 2018.  Again X was not delivered on that day and Y was only delivered for supervised time.  The Mother again admitted contravention and claimed reasonable excuse.  The evidence from the Father was that time had been scheduled by B Group.  He was not challenged on this matter.  There is no record of the cancellation of that visit and the Mother says that B Group was not going to facilitate until Court intervention.  That is not in the records produced on subpoena.  She says there was a discussion the week prior to 8 December with B Group to this effect.  That is not in the records.  What the records show is the Mother advising B Group that she would not be bringing the children, not the other way around.  B Group's apparent availability on that occasion meant that there was an obligation on the Mother to produce X and Y for the time as specified in the orders.  Withholding them constitutes a contravention. 

7. However, in the particular circumstances of this case a reasonable excuse is demonstrated.  On 16 November 2018 B Group’s records show that the Mother was advised by B Group that they were concerned about a risk of harm for X and transfer of that risk of harm onto Y for unsupervised time.  In relation to reasonable excuse and the withholding of a child s 70NA(4) allows as a reasonable excuse where a party believes on reasonable grounds that it is necessary to do so to protect the health and safety of the child and does so for no longer than is necessary.  This falls into that category and I note the Mother had subsequently made a prompt application to the Court for a variation of the orders. 

8. Whether the advice, at least as understood by the Mother, from B Group is correct is a different question, but it certainly gave the Mother reasonable grounds to withhold X and Y.  The consequence of that is that Mother is in contravention but has a reasonable excuse in relation to counts five and six.  Section 70NDA applies which means that there may be an order for compensatory time and depending on whether or not any such order is made there may be an order for costs made against the Father that at least needs to be considered. 

9. I note also that at all times it is open to the Court in the context of contravention proceedings to amend the orders.  Whether there will be compensatory time and whether the orders will be amended will fall to be determined following the hearing of the interim application today.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 February 2019.

Associate: 

Date:  14 February 2019