Bowen and Sawer

[2017] FamCA 234

FAMILY COURT OF AUSTRALIA

BOWEN & SAWER [2017] FamCA 234

FAMILY LAW – CONTRAVENTION – where father overholds child – where father claims justification for overholding is that he had already booked an interstate holiday and offered that his parents care for child – where action found to be unilateral and not a reasonable excuse – where serious breach claim rejected but compensatory time ordered.

Family Law Act 1975 (Cth)

Gaunt and Gaunt (1978) FLC 90-468
Stevenson & Hughes (1993) FLC 92-363

APPLICANT: Ms Bowen

RESPONDENT: Mr Sawer

FILE NUMBER: LNC 198 of 2016

DATE DELIVERED: 10 April 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Murray

SOLICITOR FOR THE APPLICANT: Murray & Associates

THE RESPONDENT: In person

Orders

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 Hugh & Sawer 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 MELBOURNE

FILE NUMBER: LNC 198 of 2016

Ms Bowen

Applicant

And

Mr Sawer

Respondent

REASONS FOR JUDGMENT

1. On 7 December 2016, Senior Registrar FitzGibbon made interim parenting orders between Ms Bowen, the mother, and Mr Sawer, the father, concerning their daughter, C (the child), who recently turned 10 year of age.  The discrete application by the mother filed on 1 February 2017 alleges that the father breached paragraph 3(b)(ii) of those orders in that he overheld the child at 5 pm on 23 January 2017. 

2. Although the father insisted at various times that he was not being heard and that I had constantly interrupted him, it was difficult to get a clear understanding of whether he admitted or denied the breach.  For that reason, I have accepted his position as a denial. 

3. To have any understanding of this dispute, the December 2016 order needs to be set out in some detail.

   Paragraph 3B(ii) must be read as follows:

   That until further order, the child spend time with the father during the long summer 2016/2017 school holidays from 10 am on Friday until 5 pm on Monday.

   But that also has to be read with some context. 

4. Paragraph 4 of those same orders provides that for the purpose of the mother taking the child for a holiday cruise in March 2017, the time just mentioned, is to be suspended for the purposes of that travel, subject to it being made up.  Whether that was to be made up before or after the trip did not matter, providing it was to be completed by no later than 30 June through solicitors sending the relevant details by 25 January.

5. Paragraph 5 of those same orders provided that, in effect, if there was a dispute then both of the parties and the independent children's lawyer had liberty to write to the Court to seek orders to reflect the precise times and dates required by that make up order. 

6. There is a disputed history between these parties which presumably gave rise to three other orders.  Paragraph 6 of the orders provided that all changeovers that could not occur at school were to occur at the L Town Children’s Contact Centre, but if that was unavailable for any reason, then in the foyer of a police station nominated by the mother but subject to the officer in charge of that station permitting it.

7. Self-evidently, the current dispute relates to school holidays, so the child was not in school.  In respect of the weekend of 23 January 2017, the father asserted that no contact occurred between the mother and the contact centre, an assertion that the mother denies.  Secondly, that in any event, the father asserts the mother did not have permission from the officer in charge of the relevant police station to do the handover at the police station.  Neither of the father’s assertions has substance nor affects the outcome. 

8. Returning to the orders of December 2016, paragraph 7 provided that if the contact centre could not immediately offer changeover facilities as ordered but could offer a place and time within proximity to the times as ordered, then the parties were to attend changeovers as advised by the centre until such times as the orders could be properly carried out.

9. Paragraph 8 of those same orders provided that each of the mother and the father, if they had not already complied with an order made in July 2016 to use the centre, forthwith make the necessary arrangements to do so.  The relevant process was to be commenced by the mother through her solicitors, who were to send to the father a letter of instructions and any forms and documents for completion by him and that they be returned to enable the use of the centre.  It is difficult in this case to make any specific finding about that particular order but the mother’s evidence was that she had contacted the centre previously, and the father had indicated that he would not attend.  That was not seriously challenged.

10. In her evidence, the mother said that up until the interim orders that I have just been mentioning, time had been largely complied with.  The only variation had been in relation to drop off and collection points.  The mother’s evidence was that the child became quite upset at the prospect of handovers occurring at the police station.  She said, and this was not a matter of dispute, that the child had asked her if it was all right not for that to occur, because her father might go to jail if he did something wrong.  The mother’s evidence was that the centre had been unavailable at the relevant times, and then there is the fact that the father refused to use that centre.

11. The changeovers had been occurring in the main without incident at a Bunnings Warehouse, at Suburb M, but that had been organised between the mother and the father’s older children.  That evidence puts the father’s evidence in some context, too, because he had not complained about those handovers.  It is not suggested here that there has been any problem in relation to handovers since this contravention proceeding began. 

12. In essence, therefore, the issue here is that the child was retained by the father, and returned to the mother on 30 January rather than 23 January.  At the time of filing the contravention application, the child had not been returned according to paragraph 3(b)(ii) of the December 2016 orders.

13. The mother attached to her affidavit a sequence of text messages to indicate what was occurring in the relevant period.  As I have indicated, paragraph 4 of the December 2016 orders made reference to a cruise to be taken by the mother in March 2017.  The father’s evidence was that this was the subject of a telephone conversation, but he conceded that the last telephone conversation took place in early January 2017.  That is supported by his own text message of 18 January, in which he expressed extreme disappointment that the mother would not talk to him.  Thus the text messages attached to the mother’s affidavit, and which were the subject of some discussion, make clear what was going on.

14. On 18 January 2017, the mother sent a text message which made clear that the March cruise was not going to take place, because the father had refused to sign the passport application for the child. To the extent that the father maintained that his overholding was based on some form of compensatory entitlement, it could not have been because the text message indicated that the cruise was not proceeding. 

15. The defence to the overholding of the child was said to be a “technical” breach; I reject that for the reasons that follow.

16. There had been communication between the mother and the father about a Queensland trip during those 2016/2017 summer school holidays.  The father had booked his trip with his older and other children during earlier January.  It seems his flight was booked for 23 January.  In response to the mother’s text of 18 January about the March make up time, the father wrote that, in his view, he did not need to be present generally during time with the child and that he could nominate family to care for her.  I am not entirely sure where that came from.  The father said that the Senior Registrar had “intended” that, but I do not read the order that way.  He went on to ask the mother that if he went away, would she be content for the child to spend time with his parents.  Although it does not say so, that was a reference to the father’s trip to Queensland and the paternal grandparents having his time otherwise with the child.  The mother did not respond to that text request or suggestion, but she did say:

    If you prefer to use the police station as a changeover point, so be it.  I’m trying to avoid that stress for [the child].

    Later in the same sequence of texts, the mother wrote:

    Do not contact me again unless it specifically relates to the drop-off and collection of [the child].

17. On 22 January 2017, the day before the child was to be returned to her, she wrote:

    Can you please confirm collection time/location for [the child] tomorrow?  I’m aware you are all going away.  Is it still 5 pm?  If so, I propose my office.

    To that particular text message, the father responded:

    You failed to respond to whether [Mr & Mrs Sawer Snr] (his parents) spend time with her if I was away.  You told me to book a holiday, and you were trying to make something work for the child.  You also told [the child] you would try and help her have a holiday, something I never told her about in case it didn’t happen, and she’s been asking every time when she comes to see us.

18. The father then made reference to a contravention he asserts occurred earlier by the mother, but two things can be observed about that.  First, there was no contravention application before the Court.  Secondly, the mother denied any such contravention in cross-examination saying that the father had not been available to have the child.  I have not taken that into account one way or the other. 

19. It was the father’s evidence that at 3.49 pm on 22 January 2017, he booked a flight for the child to Queensland.  He did not tell the mother, notwithstanding that at 12 noon on 23 January he said what I have earlier mentioned about the child spending time with the grandparents.

20. In any event, the father’s text would have not given the mother the impression that the child was going to Queensland.  He told the Court that he had flown out of L Town at 9 o’clock on that morning.  When the mother received the father’s message, she replied:

    [The child] is due to return to me today.  If she isn’t, expect a contravention and an application to suspend time altogether.

    The father, presumably already on his way, if not already in Queensland, wrote:

    That’s fine.  Do what you always do.  You will break [the child’s] heart, and expect a counter-contravention.

    In reply to that, the mother wrote:

    I will be at the L Town Police Station at 5 pm to collect my daughter.  I expect her to be there in accordance with the orders.

21. The father’s evidence was that he could not “technically” comply with the order.  He said that the mother would not answer his message about his parents; that she had breached the orders by not going to the contact centre; and that she had not contacted the relevant police station officer in charge.  He conceded that what had occurred had not been the “strict letter” of the order, but he said, to use his words, “the judge screwed up”.  In essence, the nub of his justification for what occurred was that there wasn’t any other way for the child to be handed back to her mother because he was already either on the way to, or in Queensland. 

22. In a contravention application, there are three distinct questions to be answered. First, has an order been contravened within the meaning of section 70NAC? Secondly, does the respondent have a reasonable excuse within the meaning of section 70NAE? Thirdly, what sanction or other orders should be made, relying on the relevant subdivisions B to F of the relevant parts of the Act?

23. The provisions of the Act also say that the father will only be found to have contravened the order if he has intentionally failed to comply with the order or made no reasonable attempt to comply with it. Subject to the type of sanction imposed, the onus of proof lies with the applicant to establish the contravention of the order on the civil standard of proof, which is the balance of probabilities. If it is found that the contravention of the order has occurred, and the respondent relies upon a reasonable excuse, then the onus of proof falls to that particular person.

24. There can be no dispute that the father contravened the order, because the child was to be returned under it at 5 pm on 23 January.  I find he intentionally failed to comply.  He had chosen not to return the child.  He had not mentioned the plan to go to Queensland in his texts of 22 and 23 January.  I reject his suggestions about the contact centre and the police station as well as that relating to his parents.  He had the obligation to fulfil the parts of the order that applied to him.   He flippantly responded when I asked why he had not changed his flight.  I do not find that he could be said to have intended to rely upon his parents to return the child, but even if he had, the mother was not to know that.  His text does not indicate a plan for them to be instrumental in the return of the child. 

25. I reject the relevance of his evidence about a failure to set up the contact centre or the police station.  He had no intention of complying with the order in the first place.  In addition, those arrangements had not been the status quo in any event. 

26. In Stevenson & Hughes (1993) FLC 92-363, Fogarty J said:

    There is also implicit, in every order for access, an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact orders occur.  That same provision also applies to the contact parent, who has to take reasonable steps to ensure that the child is returned at the conclusion of the relevant period.

    The decision in Stevenson & Hughes obviously preceded the relevant amendments to the Act in 2006, but the same concept is now enshrined in section 65DA(2) and section 62B.

27. In the Full Court’s decision in Gaunt and Gaunt (1978) FLC 90-468, their Honours said the following:

    The essential question is this:  can a party who does not agree with a Court’s decision about access, defy the order and then plead that, in preventing access, his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child.

    The same point must be made about someone who takes the view that they have no other choice other than to overhold.  The question must be looked at on the basis of what is reasonable.  A party’s subjective view of the rights and the wrongs of the decision cannot be relied upon as a reasonable excuse.  I find the father, in this case, has no reasonable excuse.

28. In respect of the third question, it is not asserted that the father has a prior finding against him, and it is not asserted that, after 30 January this year, the problem continued. Contact is apparently occurring as it should, under the orders. Mr Murray urged the Court to define this contravention as serious. I reject that because, despite all of the problems that are obvious between the mother and the father, in terms of their relationship, the contact has otherwise been occurring, albeit apparently not satisfactory from anybody’s point of view. This particular case, therefore, must be dealt with under subdivision E of Division 13A of Part VII of the Act.

29. Section 70NEA(1) provides that if a primary order has been made, and a court is satisfied that the person committed a contravention of that order and does not provide, by the proof to which I have already referred, a reasonable excuse, then one of two things applies.  The first of those two things is set out in section 70NEA(2).  That provides that if a court has not previously made an order imposing a sanction or taken action in respect of a contravention, then subdivision E does apply.  The second provision is not relevant here, because it provides an opportunity for the Court to adjourn the proceedings so that the necessary applications can be made to the Court for an alteration of the orders of some substance.  In this case, it does not apply because there is a substantive parenting dispute already pending.

30. Section 70NEA(4) provides that the relevant subdivision does not apply if when the Court is dealing with a contravention, the Court is satisfied that the father has behaved in a way that shows a serious disregard for his obligations under the primary order.  While there is some argument about whether or not this was just open defiance, I am not satisfied that I could be satisfied beyond any reasonable doubt, which would be the test to put this particular application in subdivision F.

31. As this breach falls within subdivision E, s 70NEB provides the powers of the Court.  There are a number of orders that the Court can make.  The first of those directs either or both of the persons to attend a post-separation parenting program.  There are two reasons in this case why that sort of order is not likely to be workable.  The first is that the parties cannot communicate with one another in any sensible way to learn about what is happening to their child.  The second is, as the father observes, he has been involved in over a hundred court cases already.  Thirdly, he has adult children, and in his view no matter what the Court does, the child will come back to him in due course as did his other children.

32. Thus, s 70NEB(2) provides that the Court must not make an order of that type unless satisfied that it is appropriate to direct the order to both. 

33. In my view, having regard to the nature of the relationship between the parties, there is little more that the Court can do to get these parties to understand what their respective obligations are. 

34. The second of the possible orders that the Court can make is a further parenting order that compensates a person for time not spent as a result of the contravention. 

35. Section 70NEB(5) is a mandatory provision.  The Court there must not make an order of that type if it would not be in the best interests of the child for the Court to do so.  What the father says in relation to that is that it would not be in the child’s best interests to be away from him for that length of time in between current visits.  That has a rather hollow ring about, having regard to the fact that he did exactly that.

36. What the mother seeks is an order that, by way of compensation, the father’s time be suspended on the Easter weekend, so from the Friday through to the Monday morning, which would be the period of time otherwise to be spent, and also the Mother’s Day weekend in May.  The father pointed to the fact that he had already written about Mother’s Day and so I will take it that he has agreement to make that order. 

37. The other issue, then, is the question of the Easter weekend.  The Court has to be satisfied that it is in the best interests of a child for the Court to do just that.  It seems to me that that amount of time is not going to make a large difference to a ten year old child.  I do not know what her wishes are, or her views, but in any event it seems to me that this child has been the subject of so much litigation over the last few years that it is time to put a stop to it, and I propose to do that by ultimately approaching the case management judge and seeing if this case can be listed for trial as quickly as possible.

1. In my view, the best interests of the child here are served by making an order for compensatory time, and for the Court to note that this is the first breach of an order within the meaning of the relevant part of Division 13A. 

2. In the end, the mother made an application for costs.  The amount that Mr Murray sought was $6000, but he was unable to quantify that. 

3. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances to justify a departure from that principle. The circumstances supported an order here because there has been a finding against the father of having breached the order. Court orders are meant to be complied with, and he cannot take the law into his own hands.

4. One of the dilemmas in this case, however, is that the Court – if satisfied that there is a justifiable circumstance to depart from the principle – must take into account the matters set out in s 117(2A) of the Act. The matters there contemplated are such things as the financial circumstances of the parties, their conduct in relation to litigation, whether there are legal aid considerations and any other thing that the Court considers is appropriate. The father maintained in relation to his financial position that he is not going to have any money for the next four months, but impecuniosity is not a basis not to make an order. If it were otherwise, people could defend and/or bring applications in this Court with impunity.

5. One of the dilemmas in this case, however, is that the costs incurred as a result of the fact that the hearing has been held in Melbourne.  I have no idea why that occurred, as I was only asked to hear the application, but it seems it has something to do with that fact that it is inappropriate for this hearing to be occurring in L Town.  It seems to me that it is not a matter that I can impose upon the father, notwithstanding the mother will be in a position here where she has to incur her own legal costs.  However, having said that, it seems to me that it would be improper for me not to make an order for costs here because of the fact that the mother has been wholly successful in her application.  I have rejected the father’s defence of reasonable excuse.  In my view he took the law into his own hands, and on that basis, an order should be made for costs.

6. I do not accept, however, the quantum of the costs sought.  It seems to me, looking at the scale, bearing in mind that the lawyer involved wold have been engaged for somewhere in the vicinity of eight hours, and there is an application supported with an affidavit, the amount of costs that I propose to order in this case is $2,500. 

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 April 2017.

Associate: 

Date:  18 April 2017