Briggs & Briggs (No 3)
[2024] FedCFamC2F 1734
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Briggs & Briggs (No 3) [2024] FedCFamC2F 1734
File number(s): BRC 10366 of 2020 Judgment of: JUDGE DICKSON Date of judgment: 6 December 2024 Catchwords: FAMILY LAW – CONTRAVENTION – PARENTING – Final orders made by consent in March 2021 – Three children aged 15, 13 and 11 years – Where the father originally alleged numerous counts of contravention of the final consent orders by the mother – By the final date of trial, 17 alleged counts of contravention remaining – Where all remaining contraventions were admitted by the mother but with reasonable excuse – Where the mother was legally represented for the first tranche of Trial and was self-represented on the final day of Trial – Two further counts dismissed – 15 counts established without reasonable excuse – Legal fees incurred grossly disproportionate to the issues in dispute – No sanctions imposed – Orders altered. Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NBA.
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 189.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 11.67, 11.69.
Cases cited: Childers & Leslie [2008] FamCAFC 5
Galvis & Galvis [2024] FedCFamC1A 123
Hatfield & Rivas [2024] FedCFamC1A 202
Keehan & Keehan [2019] FamCAFC 250
Millson & Halbert [2021] FedCFamC1F 94
Mitty & Mitty [2012] FamCA 329
Seaward & MacDuff [2011] FamCA 1041
Taikato v The Queen [1996] HCA 28,
Vaughton & Randle (No 2) [2013] FamCA 286
Division: Division 2 Family Law Number of paragraphs: 114 Date of hearing: 15 October 2024 Date of last submissions: 15 October 2024 Place: Adelaide Counsel for the Applicant: Mr Christie Solicitor for the Applicant: Murdoch Lawyers The Respondent: Self-represented ORDERS
BRC 10366 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRIGGS
Applicant
AND: MS BRIGGS
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
6 DECEMBER 2024
UPON NOTING THAT THE COURT FINDS:
A.That the mother has contravened Order 21 of the Orders made on 18 March 2021 on 6, 8, 18, 20 and 22 December 2022 respectively and on 1, 3, 14, 16, 18, 26, 28, 30 January 2023 respectively and on 1 February 2023 without reasonable excuse.
B.That the mother has contravened Order 8 of the Orders made on 18 March 2021 on 23 December 2022 as to the children Y (born in 2011) and Z (born in 2013) only without reasonable excuse.
THE COURT ORDERS THAT:
1.In respect of the finding of a contravention of Order 21 of the Orders made on 18 March 2021, no penalty is imposed.
2.In respect of the finding of a contravention of Order 8 of the Orders made on 18 March 2021, no penalty is imposed.
3.Count 8 and Count 16 of the father’s Application for Contravention filed 21 February 2023 are hereby dismissed.
4.Pursuant to section 70NBA(1) of the Family Law Act 1975 (Cth):
(a)Paragraphs 4 to 13 of the Orders made on 18 March 2021 shall be subject to the wishes of the child X (born in 2009);
(b)Paragraph 21 of the Orders made on 18 March 2021 is hereby discharged; and
(c)Each parent shall be at liberty to speak to the children by telephone at any reasonable time when the children are in the care of the other parent and the parent who has the care of the children shall facilitate such communication by ensuring that the children have access to their mobile telephones and that they are switched on and charged at all reasonable times.
5.The father’s Application for Contravention filed on 21 February 2023 is hereby dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
This is the third Judgment to be delivered by the Court in these proceedings which involve Applications for Contravention filed by the Applicant Father, Mr Briggs (‘the father’) on 2 September 2022 and 21 February 2023 respectively alleging various breaches of a final parenting order made 18 March 2021 (‘the final consent orders’) by the Respondent Mother, Ms Briggs (‘the mother’).
On 9 August 2023, the Court dismissed the mother’s oral application to summarily dismiss the Applications for Contravention. On that day, Counts 11 and 15 of the application filed on 21 February 2023 were dismissed by consent and Count 21 of the same application was dismissed by the Court of its own motion.
On 10 August 2023, the Court heard evidence from the father in relation to the remaining counts. At the conclusion of the father’s case, the mother’s counsel foreshadowed that an application of ‘no case to answer’ would be made at the recommencement of the Trial.
The Court heard submissions on 29 January 2024 as to the no case to answer issue. Judgment on the no case to answer application was reserved and delivered on 6 March 2024. Count 1 of the father’s Application for Contravention filed 2 September 2022 and Count 3 of the father's Application for Contravention filed 21 February 2023 were dismissed.[1] The mother’s oral application of no case to answer for Counts 1, 2, 4, 5, 6, 9, 10, 12, 13, 14, 17, 18, 19 and 20 of the father’s Application for Contravention filed 21 February 2023 was dismissed.
[1] The Application for Contravention filed by Mr Briggs on 2 September 2022 was dismissed as finalised on 18 September 2024.
The Trial for the remaining counts resumed on 15 October 2024, and the Court heard the mother’s evidence in relation to the remaining counts and final submissions.
These are the Court’s Reasons arising from the final day of Trial.
BACKGROUND
The parties are the parents of three children, namely X, born in 2009, Y, born in 2011, and Z born in 2013 (collectively ‘the children’).
The children are now aged 15 years, 13 years and 11 years respectively.
On 18 March 2021, the parties entered the final consent orders. It is from the final consent orders that the father alleged that the mother contravened various provisions without reasonable excuse.
DOCUMENTS RELIED UPON
The father relies upon the following the documents:
(1)Application for Contravention filed and 21 February 2023;
(2)Affidavits of the father filed 2 September 2022 and 21 February 2023;
(3)Outline of Case Document filed by the father on 8 August 2023;
(4)An aide memoire provided to the Court on 15 October 2024; and
(5)An updated Costs Notice filed 10 October 2024.
The mother relies upon the following documents:
(1)Outline of Case Document filed by the mother on 4 August 2023;
(2)Exhibits M1 to M8 inclusive; and
(3)An updated Costs Notice filed 11 October 2024.[2]
[2] In her evidence, the mother stated that the costs in the Costs Notice were incurred only in relation to the Applications for Contravention.
At Trial, the mother declined to rely upon her affidavit filed 26 July 2023 despite it being foreshadowed in her Outline of Case Document at paragraph 1.1 that she would be doing so.[3] I, therefore, did not consider the mother’s affidavit as part of her case.
[3] Rule 11.67 of the Federal Circuit & Family Court of Australia (Family Law) Rules 2021 provides that a respondent may file an affidavit but is not required to do so.
JURISDICTION
The father’s Application for Contravention was filed on 21 February 2023 (‘the said application’) and the Trial commenced on 9 August 2023, both prior to the amendments made to the Family Law Act 1975 (Cth) (‘the Act’) which came into effect on 6 May 2024.
The question of what legislative provisions apply to the Trial proceeding on 15 October 2024 was recently settled by the Court in the decision of Hatfield & Rivas [2024] FedCFamC1A 202.
In this case, the old provisions apply to the historic contraventions alleged by the father and the legislative provisions as they were prior to 6 May 2024 will apply.
CONTRAVENTIONS
The remaining counts which are the subject of determination at Trial are Counts 1, 2, 4, 5, 6, 9, 10, 12, 13, 14, 17, 18, 19 and 20 of the said application (‘the telephone contraventions’) and Counts 7, 8 and 16 of the said application.
THE MOTHER’S POSITION AT TRIAL
The mother declined an opportunity to speak with a duty solicitor who was present at my request on the first day of the Trial.
The mother was sworn in to give evidence.
In accordance with rule 11.69 of the Federal Circuit and Family Court of Australia Rules 2021 (‘the Rules’), each allegation set out in the remaining counts in the said Application was put to the mother.
For each and every allegation in each and every count, the mother admitted breaching the final order but asserted that she had a reasonable excuse for doing so.
The mother’s evidence is referred to later in these Reasons.
TELEPHONE CONTRAVENTIONS[4]
[4] Being Counts 1, 2, 4, 5, 6, 9, 10, 12, 13, 14, 17, 18, 19 and 20 of the Application for Contravention filed 21 February 2023.
Order 21 of the final consent orders reads as follows:
21.That each parent shall facilitate the children speaking to the other parent by telephone between 6.30pm and 7.30pm each alternate night when the children are in their care and the parent who has the care of the children shall initiate the communication by contacting the other parent’s mobile telephone number.
By its terms, the language in order 21 of the final consent orders provides a mandatory obligation on the parent who has the care of the children to facilitate the telephone communication to the other parent. This is seen by the use of the word “shall” in relation to facilitating the children speaking to the other parent and again the word “shall” in relation to initiating the communication to the other parent.
In the context of the current dispute, the father complains that the mother has not taken steps to facilitate or initiate the telephone calls on the dates alleged as she is required to do under the terms of order 21 of the final consent orders.
The father contends that he did not receive a telephone call from the children on 14 separate occasions between 6 December 2022 and 1 February 2023. The category of alleged telephone breaches is by far the largest compilation of alleged breaches before the Court for Trial.
The mother took no issue with the dates alleged by the father for the telephone communications.
At Trial on 10 August 2023, the father was vigorously cross-examined by the mother’s then counsel.
The father conceded in his evidence that the mother works as a health care worker, that her employment involves night shifts and that the children have their own mobile telephones.
The father agreed in evidence that the mother “may” not have access to her mobile telephone when at work. He refused to accept that she “definitely” did not have her telephone at work despite receiving a text message from the mother on 6 June 2022 informing him that she was required to place her mobile telephone in a locker whilst performing her professional duties at work.
The father conceded, under cross-examination, that he has refused to vary the current telephone order as suggested by the mother. The mother proposes a variation of the order for telephone communication contending that it would be more practical given that both parties work, the children have their own mobile telephones and are of an age where they can operate their own devices.
The father opposes the mother’s proposed variation despite his acknowledgment, under cross-examination, that he can contact the children on their mobile telephones and that he and Z have even exchanged social media videos via their mobile telephones. The following exchange between the mother’s counsel and the father exemplifies the issue:
COUNSEL FOR THE MOTHER: All right. We know because it’s in evidence that even in response to this contravention application, the mother says to you through solicitors on record you can contact the boys at any time, right. Now, if that’s the case – if it is the case that you don’t receive a telephone call on the nominated day in the nominated time, why don’t you just simply ring the boys and have a conversation?
THE FATHER: Why don’t I?
COUNSEL FOR THE MOTHER: Yes?
THE FATHER: Because I’m expecting a call between 6:30 and 7:30.
COUNSEL FOR THE MOTHER: Yes. That might be the case. Let’s just say for theoretical purposes, by 7:30, again, hasn’t happened. And you might think – you might think, given it’s been an issue – maybe, maybe mum is at work. Do you think that?
THE FATHER: I also think that ---
COUNSEL FOR THE MOTHER: Do you think that?
THE FATHER: No I don’t think that.
COUNSEL FOR THE MOTHER: So it doesn’t enter your head that if the phone call hasn’t occurred, given that this has been an issue where you’ve been told the phone is in the locker since June of 2022, she tells you she works, you know she works, she might not have the phone available – it doesn’t enter your head to think she might be at work. Is that right?
THE FATHER: Even if she is at work ---
COUNSEL FOR THE MOTHER: No. Does it not enter your head?
THE FATHER: No, it doesn’t.[5]
[5] Taken from the Transcript of Day 2 of the Trial, 10 August 2023 at page 64 – 65.
It was evident from the father’s evidence that he expects strict compliance with the orders for telephone contact despite obvious ameliorating factors such as the mother’s employment making it impossible for her to facilitate telephone calls during the designated times and the children each having their own mobile telephone devices for their personal use.
As stated, the mother admits that she breached the final consent order as to telephone contact but maintained that she had a reasonable excuse for doing so.
Exhibit M1 is an email dated 21 February 2023 from the mother to the father’s solicitors. The email reads as follows:
Thanks for the new affidavits!
I will read in due course. cannot wait!
In the meantime, re the phone calls, I’ve advised [Mr Briggs] to contact his children directly – as instructed to him numerous times, i work night shift. my phone is no longer available to our children. [Mr Briggs] knows this. it would also explain why your document server could apparently not locate me! lets use some common sense. I cross paths with [Mr Briggs] twice weekly so he could have served me through a family member if he so desired to actually serve me.
therefore, I have given him the details of his childrens mobile numbers approximately 2 years ago now. he can call his children 24 hours a day, 7 days a week, if he so chooses, and vice versa.
i will be applying to vary many of the orders including this one. Rather than file a Contravention, how about a bit of common sense and maturity be brought into the equation. If [Mr Briggs] wanted to contact his children, he could do so. At any stage. Rather than write a 61 page affidavit to explain about not receiving phone call.
For your record, these are the numbers if he so chooses to speak with his children before the court rules otherwise:
[X] 04 – (redacted by Court)
[Y] 04 – (redacted by Court)
[Z] 04 – (redacted by Court)
The only time the phones are ‘unavailable’, coincidently, is when our children are in [Mr Briggs’] care, when he also turns off all data location information etc too.
When the children are in my care, the phones are available 24/7 as all our 3 are often on public transport and to and from sporting commitments. All boys have both [Mr Briggs’] and my numbers saved by me, under their emergency contacts.
Sincerely
[Ms Briggs]
Sent from my iPhone.
Under cross-examination, the mother said that she did not recall the times and dates of the telephone calls as the alleged missed dates were from two years ago. She said that the excuse or reason why the telephone calls were not made is because she had not been able to physically provide her telephone to the children at those times.
As an ‘umbrella defence’ to all relevant telephone counts, the mother said that if she was at work her telephone is not available to her or she might be out of the house or at the shops or physically not at the same place with the three children. The mother explained that with three children, there might be tutoring going on, or sport fixtures or the children might have been busy riding bikes with their friends or cousins. The mother considered that she herself may have had commitments, such as late-night shopping or having her hair done, which meant that she was not physically present with the children to facilitate the call.
The mother described having an alarm that goes off on her telephone every second night as a reminder but acknowledged that she might not be with the children at that given time to facilitate the Court ordered calls. The mother confirmed in her evidence that the children each had a mobile telephone at the date of the breaches and that she encourages the children to use those devices to communicate with their father.
Under cross-examination, the mother agreed that the telephone counts largely fell across the school holiday period being from 6 December 2022 to 1 February 2023 inclusive. She readily conceded that the children would not have been tutored nor playing school sports in the holidays. The mother agreed that she could have obtained her employment records to demonstrate that she was working on some or all of the relevant dates of the telephone contraventions. She said that she had not done so because it had never been suggested by her then lawyer that she should.
COUNT 7 - CONTRAVENTION ON 23 DECEMBER 2022
Order 8 of the final consent orders provides as follows:
8.That unless otherwise agreed, during the December/January school holiday periods, the children shall spend time with each parent during these holiday periods as follows, for three separate weeks with the father, being the first week of the school holiday period and each alternate week thereafter in even numbered years and the second week of the school holiday period and each alternative week thereafter in odd numbered years and with the mother for the remaining period and these arrangements are subject to the arrangement for the child [Z]'s birthday as provided for in paragraph 11 of these Orders.
The father’s evidence is that the children were due to spend time with him for a week from 5.00pm Friday, 23 December 2022. A letter was sent to the mother by the father’s solicitors on 22 December 2022 by email confirming the order and putting the mother on notice as to compliance. The father foreshadowed a “further contravention application” if the children were not provided.[6]
[6] See the Affidavit of Mr Briggs filed 21 February 2023 at Annexure ‘MRB-4’.
At 4.34pm on 23 December 2022, the father received a text message from the mother as follows:
Hi [Mr Briggs], the boys won't go to today. I will try to encourage them again and hope they will go to you on Boxing Day as per the orders
Take care
[Ms Briggs]
The father attended at the mother’s residence at 5.00pm to collect the children. The father sent several text messages to the mother advising that he was present and waiting for the children. The father left at 5.22pm without the children having been provided.
At Trial, the mother admitted that the three children had not been provided in accordance with order 8 of the final consent orders but maintained that she had a reasonable excuse for doing so.
The mother gave evidence in chief that whilst she didn’t remember the “specifics” of the date in question, she contended that there were times that the children simply refused to spend time with the father. The mother contended that when this occurred, she was usually able to overcome the children’s resistance using various techniques such as putting money on their “pre-paid phone cards” or just pleading with them. She went on to state that there are times when the resistance is “too bad” and the children “dig their heels in”, describing that there have been occasions when the children have run away from their father and returned to her.
Recalling the events of December 2022, the mother recalled Y being annoyed at his father because he had not attended at Y’s primary school graduation. Y told his mother that if he was sent to his father’s home then he would “get out of the car and run straight home again.” In response to a question from the Court, the mother said that if Y had run away, then Z would have run with him because “he does whatever [Y] does.” As to X, the mother stated that his mental health was not good during this December period and his relationship with his father was already fractured with the last contact having occurred in November 2022.
No questions were asked of the mother in cross-examination in relation to this count.
COUNT 8 - CONTRAVENTION ON 25 DECEMBER 2022
Pursuant to order 10 of the final consent orders, the children were to spend time with the father from 6.30pm on 25 December to 26 December 2022.
Y and Z came into the father’s care at the required time albeit 15 minutes late.[7] X did not attend.
[7] See the Affidavit of Mr Briggs filed 21 February 2023 at paragraph 35.
At Trial, the mother admitted that X had not been provided in accordance with order 10 of the final consent orders but maintained that she had a reasonable excuse for not doing so.
The mother gave evidence that during this period X’s health and mental state was problematic. She alleged that X was “threatening to self-harm” and that he “…wanted nothing to do with [Mr Briggs] until there was an apology.” The mother explained there had been no communication or contact between father and son by “either side” in the past two years.
The mother was challenged as to why there was no contemporaneous evidence about X’s mental health on Christmas Day 2022. She denied that X’s treating professionals were not called because it would not have assisted her case. She explained that it had never been suggested to her that she should and that “we” thought that the document (presumably being Exhibit M5) “was sufficient.”
Exhibit M5 is a report from X’s Paediatrician, Dr C dated 20 April 2022. At the time of interview, X presented with a “low mood” and was described by Dr C as “tearful” when asked by Dr C about mood issues. Dr C suggested a one-month trial of an antidepressant and reported speaking with X about “the blackbox warning for suicidal ideation.” X’s completion of the behaviour rating scale was a DSM-5 diagnostic level for both depression and another mental health disorder.
COUNT 16 - CONTRAVENTION ON 24 JANUARY 2023
Pursuant to order 11 of the final consent orders the children were to spend time with the father from the conclusion of school to 6.00pm for a special occasion.
The father attended and collected Z and Y from the handover point at school. X did not attend.
At Trial, the mother admitted that X had not been provided in accordance with order 11 of the final consent orders but maintained that she had a reasonable excuse for not doing so.
The mother gave evidence that X’s relationship with his father was fractured at that time. She explained that the relationship remained fractured. X currently has no desire to see the father and continues to see a psychologist for treatment.
No questions were asked of the mother in cross-examination on this Count.
LEGAL PRINCIPLES
The applicable law in respect of failure to comply with orders that affect children is contained in Division 13A of Part VII of the Act. The purpose of Division 13A is to ensure compliance with parenting orders made by the Court as distinct from a party being “punished” i.e. for contempt.[8]
[8] Keehan & Keehan [2019] FamCAFC 250.
The standard of proof in determining whether a person has a reasonable excuse for contravening an order is on the balance of probabilities.[9]
[9] Family Law Act 1975 (Cth) s 70NAF; Evidence Act 1995 (Cth) s 140.
All findings in these Reasons are made to that standard.
A person 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 or communicate with in a way that resulted in a person and a child not spending time together or communicating with each other as provided for in the order if:
(a)That person believed on reasonable grounds that not allowing the child and the person to spend time together or to communicate with was necessary to protect the health or safety of a person (including that person or the child); and
(b)The period during which, because of the contravention, the child and the person did not spend time together or communicate with was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).[10]
[10] Family Law Act 1975 (Cth) s 70NAE(5) and (6).
The onus of establishing whether the requirements of sections 70NAE(5) and 70NAE(6) of the Act have been met is on the mother. The mother must establish that she believed on reasonable grounds that not allowing the child or children to spend time with the father was:
(a)Necessary to protect the health or safety of the child;
(b)That the period of the contravention was not longer than was necessary to protect the health or safety of the child; and
(c)That the belief was based on reasonable grounds.
These requirements have been described as having both a subjective and an objective element.[11]
[11] Vaughton & Randle (No 2) [2013] FamCA 286, [82] and [83].
The definition of ‘reasonable excuse’ described at section 70NAE(1) has been held to be expansive insofar as the circumstances in which a person may be taken to have had such an excuse include, but are not limited to, the circumstances set out otherwise in section 70NAE of the Act. The Court has recognised that section 70NAE(1) requires an objective test, albeit that one might include ‘subjective’ aspects.[12]
[12] Childers & Leslie [2008] FamCAFC 5.
The High Court decision of Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454 at 466 (cited in a family law context in cases such as Seaward & MacDuff [2011] FamCA 1041 and Mitty & Mitty [2012] FamCA 329), is also of assistance in relation to the interpretation of the term “reasonable excuse”:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because 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 defence of “reasonable excuse” is an exception…
… However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts, the power to determine the content of such defences. 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. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a “reasonable excuse” in cases…
In this case, the mother has admitted all the allegations made by the father and contends that she has a reasonable excuse for doing so.
ASSESSMENT OF REASONABLE EXCUSE
Telephone Counts
It is appropriate that I address all the counts globally as the mother’s defence of reasonable excuse for each of the separate 14 counts pleaded was identical.
The mother bears a positive onus to prove on the balance of probabilities that she has a reasonable excuse. Based on the evidence given by the mother as set out above, it is my view that she has failed to do so. The mother did not produce any employment records or any corroborative evidence at all which might support her contention that she was working on the relevant dates or that one or all the children was playing sport.
During her evidence, the mother had no specific recollection of the alleged dates. Her evidence gave a ‘global overview’ of what objectively would be seen as a very busy household with a working parent and three active boys all coming and going with various academic or sporting activities. What I understand the mother to be saying to the Court from her evidence is:
(a)I run a busy household caring for three active boys whilst working a demanding job as a health care worker;
(b)The nature of my employment is such that I cannot have my mobile telephone with me at all times and necessarily the children are not with me while I am at work;
(c)I support and encourage the children to speak with their father. At the time of the alleged contraventions, the children each had their own mobile telephones and can communicate with their father at any time and have done so;
(d)The children are busy with school, tutoring and sport and playing with their peers; and
(e)I also have things to do when not working or running around after the children such as shopping or personal grooming appointments around those commitments.
Therefore, the mother contends that she cannot facilitate the telephone communication every second day as provided in the orders because of the reasons set out above.
From a common sense and practical viewpoint, what the mother says is perfectly understandable and reasonable. Unfortunately, common sense is not the legislative test.
To my mind, those explanations do not reach the necessary threshold to satisfy me on the balance of probabilities that the mother has made out a defence of reasonable excuse for Counts 1, 2, 4, 5, 6, 9, 10, 12, 13, 14, 17, 18, 19 and 20 of the said application within the definition for ‘reasonable excuse’ as provided for in section 70NAE(6) of the Act. The evidence supports a finding that the mother made no reasonable attempt to comply with the order.[13]
[13] Family Law Act 1975 (Cth) s 70NAC.
Count 7, 23 December 2022
Initially the mother was unable to specifically the reasons why the three children had not attended with the father for this period of the school holidays. She then recalled that Y was upset with his father for not attending his end of year school graduation. Y was wanting an apology or explanation from his father which had not been forthcoming and so Y had refused to go. The mother’s evidence was that Z would not see his father if Y did not go. X had already voted with his vote and had declined to see his father from November 2022. In that background, the mother had sent the father a text message telling him that the children would not be attending as set out in paragraph 41 herein.
The father attended at the mother’s residence to collect the children. There is no dispute that the children were not made available. There was no evidence of the mother attempting to implement a handover or encouraging the children to transition into the father’s care.
Based on all of the evidence, I am unable to find to the requisite standard that the mother has established a reasonable excuse for Count 7 as provided in section 70NAE(5) of the Act in relation to the children Y and Z.
The evidence does suggest different problems for X which I deal with below under Counts 8 and 16.
The evidence supports a finding that the mother made no reasonable attempt to comply with the order.[14]
[14] Family Law Act 1975 (Cth) s 70NAC.
Count 8, 25 December 2022 and Count 16, 24 January 2023
I propose to address the two remaining counts because Counts 8 and 16 respectively concern breaches of time spending orders between X and his father.
It is the mother’s case that X refused to spend time with the father on 25 December 2022 and 24 January 2023. It is an agreed position that X has not seen his father since November 2022. The dispute between the parties is the reason why X has refused to spend time.
At the time of the breaches, X was 13 years of age.
In mid-2021, X was seriously injured whilst in the care of the father (‘the incident’). The father agreed, under cross-examination, that X sustained severe injuries. Exhibit M2, which are photographs of X’s injuries, confirms the father’s evidence. The father disputed that X had been in hospital for a month but agreed that X had taken over a month to recover. He appeared in his evidence to reluctantly concede that the mother had taken time off from work to care for X during his convalescence. He agreed with the description put by the mother’s then counsel that the event had been “horrific.”
Under cross-examination, the father did not deny that X had developed mental health issues since the date of the incident. The father denied that the cause of X’s mental health problems was the incident or its sequalae. The father did not deny that X had mental health “issues” which arose after the incident, but without knowing any detail as to what those “issues” might be.
He acknowledged receiving an email from the mother dated 6 May 2022 advising him that X had been described a low dose of antidepressants.[15] The father denied being aware of X’s attendance upon Dr C (see Exhibit M5) but agreed that the report by Dr C had referenced discussing with X “…about the black box warning for suicidal ideation… and a ‘help keep me safe’ basic safety plan.” The father admitted that he had not opened the hyperlink attached to the mother’s email to him dated 25 January 2022. He had, therefore, not provided information to Dr C which outlined from his perspective how X was progressing, which could have been useful in having a full understanding of X’s needs from both parents.
[15] Exhibit M4.
It is not to the father’s credit that since April 2022 he had taken no steps to inform himself about X’s mental health “issues” by way of any enquiry with Dr C or Mr D, X’s psychologist. Nor has he approached X personally to make any enquiry about his personal circumstances or to “build a bridge” with his eldest son. The father described being reluctant to send a text message to X because of his concern that the mother intercepted the messages and then responded on the children’s behalf.
The father agreed that he had described X as “sensitive, creative, independent and well-behaved” in an affidavit sworn by him in August 2020. At Trial, the father described X as having a “fragile nature”, adding that it had nothing to do with “[injuries from the incident] or bullying at school.” Rather, the father gave gratuitous evidence that X’s fragility “probably relates to when he was a baby and got dropped on his head by [Ms Briggs’] niece or nephew.”[16] This evidence was not to the father’s credit either.
[16] Taken from the Transcript of Day 2 of the Trial, 10 August 2023 at page 113.
The father admitted that a dispute arose with X in November 2022 over X’s desire to attend a family celebration which fell on the father’s Court ordered weekend. The father has not seen X since that date. Under cross-examination, the father said that he had a “verbal discussion” with X over his decision to leave and visit a relative on this occasion. He denied that a physical altercation took place between them, and he denied breaking X’s mobile telephone.
The father conceded that he did not know how or what the mother could do to ensure X attended time spending with him.[17]
[17] Taken from the Transcript of Day 2 of the Trial, 10 August 2023 at page 117.
Weighing up the evidence in its totality, I am satisfied that the mother had a reasonable excuse for Counts 8 and 16, and for Count 7 as it relates to X. There is evidence before the Court that X’s relationship with his father had deteriorated in November 2022 after the father and X argued over X’s wish to attend a family celebration which fell during the father’s Court ordered time. This dispute came in the background to X experiencing a “horrific” event after falling into a fire whilst in the father’s care, severe burns and receiving psychological support for depression and a risk of self-harm.
With the benefit of hindsight, perhaps the father’s decision to allow his son to visit his relative to participate in a modest birthday event might be addressed differently. I assess the father as being someone who sees things as ‘black and white’ or ‘right and wrong.’ His evidence was to the effect that he saw celebrating birthdays as “not important”, commenting:
COUNSEL FOR THE MOTHER: Well, what was the verbal discussion that didn't result in a physical altercation, then, sir?
THE FATHER: The discussion was about him going to his [relative’s] birthday. And I pointed out the fact that any normal [relative] would have their birthday party on the other weekend when they're in their mother's care like my family does. All they’re going to do is cut a cake, sing happy birthday and that’s it.[18]
[18] Taken from the Transcript of Day 2 of the Trial, 10 August 2023 at page 114.
It was clearly important to X because he has not seen his father since.
I accept that the mother acted protectively in not complying with the orders for X to spend time with his father on 23 and 25 December 2022 and 24 January 2023. I make this finding based on the totality of the evidence given by the father and the mother in these proceedings. The mother has satisfied me that she has established a reasonable excuse for her non-compliance.[19] Counts 8 and 16 of the said application shall be dismissed. My findings as to reasonable excuse for X apply for Count 7 above, as the same evidence applies.
[19] Family Law Act 1975 (Cth) s 70NAE(5).
PENALTY
In light of my findings, I now turn to consider the question of penalty.
In Galvis & Galvis [2024] FedCFamC1A 123, Austin J observed that:
The imposition of a penalty is an exercise of discretion (Dinsdale v The Queen (2000) 202 CLR 321 at 324–326, 329 and 339–340) involving “a process of instinctive synthesis of multiple factors” (Stanley v DPP (NSW) (2023) 407 ALR 222 at [59]).[20]
[20] Galvis & Galvis [2024] FedCFamC1A 123, [49].
The father seeks that the mother be placed on a Bond for a period of two years and with a surety of $5,000. I consider that the imposition of a Bond, on the facts of this case, to be excessive and wholly unnecessary. The father conceded in his evidence that the mother being placed on a Bond would not assist in restoring his relationship with X.
As to the 14 telephone counts, I decline to impose any penalty on the mother. The terms of the current orders impose a heavy burden on each of the parties to facilitate telephone contact every second day when the children are in their care. In happier times and when the children were younger, the parties consented to this onerous communication order. I consider that the current order is no longer in the best interests of the children, and I propose to vary it as sought by the mother.
As to Count 7 in relation to the children Y and Z, I decline to impose a penalty on the mother. In closing submissions, the father conceded that make up time was not likely practicable given that the breach occurred nearly two years ago. The mother submitted that any make up time was unlikely to benefit the children but that she was “more than happy to accommodate” time if the father was to communicate with her about it. I am also concerned about the lack evidence before the Court from Y, aged 13, and Z, aged 11 years, respectively as to their views about an extra week of time with their father in school holidays.
VARIATION OF PARENTING ORDERS IN CONTRAVENTION PROCEEDINGS
Section 70NBA of the Act provides that primary orders may be varied if proceedings in relation to that order are before the Court and it is alleged in those proceedings that a person has committed a contravention of the primary order and Court finds that there has or has not been a contravention of that primary order.
The Court must consider any variation to the primary order in the same way as it would approach any other variation of parenting orders and with reference to the so-called rule in ‘Rice v Asplund.’ In other words, the Court should consider, amongst other things, if there has been a change in circumstances since the making of the final parenting orders such as to justify any variation.
In exercising the power under section 70NBA, a Court should “attempt to cure the issues exposed by the contravention” so as to return the orders to “an operable state” rather than there being a recasting of the primary orders.[21]
[21] Millson & Halbert [2021] FedCFamC1F 94.
Any variation of the primary orders requires the Court to be satisfied after considering, amongst other matters, that any variation is in the best interests of the child or children concerned.
The current order was made four and a half years ago. The children are now aged 15, 13 and 11 years respectively. I accept the mother’s evidence that the children lead very busy lives with various sports, extracurricular activities, tutoring and school events. It is an agreed position that the three children each have their own mobile telephones and use them to communicate with each parent. I also accept the mother’s evidence that her employment means that she cannot be with all three children every second day at the designated time to facilitate the telephone calls to the father.
The father was immoveable in his evidence in considering other options for telephone communication and was fixated in having the mother being the person responsible for facilitating the calls without explaining why that was necessary.
In closing submissions, the father instructed his counsel that he “would not be opposed” to a variation of the order for telephone communication as sought by the mother.[22] That is not as high as saying that he would consent.
[22] See Outline of Case Document filed by Ms Briggs on 4 August 2023 at paragraph 3.7.
I consider that the facts of this case justify a variation of the final order for telephone communication as sought by the mother.[23]
[23] See Outline of Case Document filed by Ms Briggs on 4 August 2023 at paragraph 3.7.
As to X, the father opposed any variation to the final order and sought a final order for family therapy. X is now 15 years of age. It is not in dispute that X has spent no time with his father since November 2022. An interim order was made by consent for family therapy on 29 January 2024.
The mother seeks that the final orders for time spending “have no application” to X and that he spend time as arranged between X and the father from time to time in accordance with X’s wishes.[24]
[24] See Outline of Case Document filed by Ms Briggs on 4 August 2023 at paragraph 3.6.
I propose to adopt a middle road as it relates to X. The final consent orders shall be retained but all orders for time spending and communication shall be subject to X’s wishes. This balances the interests of both parties.
The mother seeks a variation for the children to attend a celebration for each parent’s birthday. The father gave evidence that he didn’t observe his birthday as an occasion for celebration. I decline to make the order as sought by the mother. It is to be hoped that if the children express a request to attend a birthday celebration and given what has happened to this family in the past, that the parties will each facilitate the children attending upon request.
CONCLUSION
These proceedings have exacted a terrible financial burden on each of the parties. As at 10 October 2024, the father has paid legal costs of $87,461.85 and with a further estimated sum of future costs being a maximum of $29,565.58.[25] The mother has total paid, unpaid and unbilled costs of $144,091.37.[26]
[25] See the Costs Notice filed on behalf of Mr Briggs on 10 October 2024.
[26] See the Costs Notice filed on behalf of Ms Briggs on 11 October 2024.
The Court has already remarked on the grotesque sum of money spent on legal fees pursuing the father’s Applications for Contravention. It could be observed that whilst the mother was found not to have a reasonable excuse in relation to a number of the counts, the payment of legal fees is punishment enough.
The father is desperate to resume his relationship with X now aged 15 years. Family Therapy arranged by the parties during the currency of these proceedings has so far failed to achieve that. X has spent no time with the father for over two years. It is reasonable to assume that these proceedings are unlikely to succeed where family therapy has failed. The father maintains a good and close relationship with Z and Y.
The parties have been successful and unsuccessful in this round of litigation in differing ways. It is open to each of the parties to bring an application for costs. I have already remarked that applications for contravention may not suit the ultimate remedy a parent hopes to achieve. It should have been obvious that the blunt force trauma caused by expensive litigation and a protracted Trial was not even remotely likely to fix the relationship between X and the father.
These orders bring the current litigation to an end.
For all of the above Reasons, the Court makes the Orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 6 December 2024
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