Cagney & Nankervis
[2024] FedCFamC2F 192
•15 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cagney & Nankervis [2024] FedCFamC2F 192
File number(s): PAC 2699 of 2014 Judgment of: JUDGE PARKER Date of judgment: 15 February 2024 Catchwords: FAMILY LAW – CONTRAVENTION – contraventions of order providing for children to communicate with Father – whether no case to answer – eight contraventions proven without reasonable excuse Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 67ZN, 70NAC, 70NAF, 70NFA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 189
Cases cited: Attreed & Attreed [1980] FamCA 81; (1980) FLC ¶90-907
Australian Securities and Investments Commission v Healey [2011] FCA 717
Caballes & Tallant [2014] FamCAFC 112; (2014) FLC ¶93-596
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
D & C [2005] FamCA 1046; (2005) FLC ¶93-236
Dobbs & Dobbs (2021) FLC 94-021
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072; (2007) FLC ¶93-341
Fierro & Fierro (No 7) [2023] FedCFamC1A 24; (2023) FLC ¶94-132
Jackson & Fordham (1995) FLC ¶92-561
Jets & Maker [2010] FamCAFC 55
May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654
Meese & Meese (No 3) [2018] FamCA 807
Medlow & Medlow [2017] FamCAFC 159; (2017) FLC ¶93-796
Nieuwstraten & Nieuwstraten [1987] FamCA 11; (1987) FLC ¶91-826
O'Brien & O'Brien [1992] FamCA 52; (1993) FLC ¶92-396
Prentice v Cummins (No 5) [2002] FCA 1503
Protean (Holdings) Ltd v American Home Assurance Co [1985] VicRp 18; [1985] VR 187
Rasomen Pty Ltd v Shell Co of Australia (1997) 75 FCR 216
Residues Treatment & Trading Co Limited v Southern Resources Limited (1989) 52 SASR 54
Sahari & Sahari [1976] FamCA 59; (1976) FLC ¶90-086
Securities and Investments Commission v Healey [2011] FCA 717
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Stevenson & Hughes [1993] FamCA 14; (1993) FLC ¶92-363
Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 2 and 5 February 2024 Place: Adelaide Counsel for the Applicant: Self-represented Counsel for the Respondent: Mr Jurd Solicitor for the Respondent: Peter Jurd Lawyers ORDERS
PAC 2699 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAGNEY
Applicant
AND: MS NANKERVIS
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
15 FEBRUARY 2024
UPON THE COURT FINDING THAT:
A.The Mother has contravened paragraph 5 of the orders of 21 December 2021 without reasonable excuse on 8 occasions
THE COURT ORDERS THAT:
1.The matter is listed for hearing on 3 April 2024 at 2:15pm for submissions as to the consequential orders to be made.
2.In the event the parties reach agreement as to the consequential orders to be made, liberty is granted to the parties to forward a proposed consent minute to Chambers and request to vacate the hearing.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE PARKER:
By Contravention Application filed on 16 January 2024, the Applicant Father, MR CAGNEY, alleges that the Respondent Mother, MS NANKERVIS has, on 10 occasions, contravened parenting orders made by on 21 December 2021 (‘the orders’) in relation to the children X born in 2010 (referred to by the Mother as ‘X’ and referred to in these reasons as ‘the parties’ elder child’) and Y born in 2013 (collectively ‘the children’).
The children live with the Mother. The orders provide (relevantly) for the children to communicate by telephone with the Father on three occasions each week.
The Respondent did not admit any of the alleged contraventions. Not having admitted that any of the alleged contraventions had occurred, she did not advance a defence of reasonable excuse.
The application falls to be determined pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (‘the Act’).
The Applicant relied upon an affidavit filed on 16 January 2024. Both parties gave evidence and were cross-examined.
THE LAW
The meaning of ‘contravened’ is set out in section 70NAC of the Act as follows:
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; or
(b) otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
It is well established that a parenting order imposes a positive obligation on the person bound by the order. Compliance requires active steps to encourage and facilitate compliance, the exertion of parental authority over the child, and making the child understand that it is the attitude of the parent that the time (or in this case, communication) required by the orders is to take place. Passive failure to impede compliance, mere invitations to the child to comply and token efforts at compliance are insufficient, as is leaving it to the child to decide whether or not to comply.[1]
[1] See, for example, O'Brien & O'Brien [1992] FamCA 52; (1993) FLC ¶92-396; D & C [2005] FamCA 1046; (2005) FLC ¶93-236; Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 1072; (2007) FLC ¶93-341; Stevenson & Hughes [1993] FamCA 14; (1993) FLC ¶92-363.
The Applicant bears the onus of proving each contravention to the requisite standard of proof.[2]
[2] Jets & Maker [2010] FamCAFC 55 at [83].
STANDARD OF PROOF
The standard of proof that applies in determining whether a person has contravened an order is the balance of probabilities: section 70NAF of the Act. However, in proceedings where a serious sanction is contemplated, such as a fine or imprisonment, the court must be satisfied of the contravention beyond reasonable doubt, pursuant to s 70NAF(3).
Section 140 of the Evidence Act 1995 (Cth) requires the Court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Subsection (2) says:
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In applying section 140(2) of the Evidence Act 1995, the Court must be mindful of the seriousness of contraventions of parenting orders, and the penalties that may be ultimately imposed. I have had regard to this consideration.
At the time of delivery of these reasons, the parties have not yet addressed the Court as to the consequential orders that should be made in the event that the alleged contraventions or some of them are found to be proven. It was agreed between the parties that this issue would be addressed and considered after the making of the requisite findings as to whether the contraventions had been proven and the delivery of these reasons.
It has also not yet been determined whether any consequential orders to be made will be determined in accordance with subdivision E (which relates to less serious contraventions) or subdivision F (which relates to more serious contraventions) of Division 13A of Part VII of the Act, and therefore whether a serious sanction could be imposed if the contraventions are found proven. It is apparent from the face of the orders that there have been previous findings of contraventions of orders by the Respondent, being a circumstance which may render subdivision F applicable[3] and it is therefore foreseeable that subdivision F could be applied and a serious penalty could be sought.
[3] Family Law Act 1975 (Cth) s 70NFA.
As a result, in relation to each of the alleged contraventions, in addition to considering whether they have been established on the balance of probabilities, I shall turn my mind to the question of whether the Applicant has established the counts beyond reasonable doubt.
RESPONDENT’S NO CASE TO ANSWER SUBMISSION
The Respondent sought that each of the counts in the Contravention Application as filed be struck out on the basis that the evidence adduced in support of them amounted to no more than a conclusion and was not capable of supporting the findings necessary to find that there had been a contravention of the orders.
When considering a submission that a Respondent has no case to answer, the Court is to consider whether the Applicant has presented a prima facie case.[4] For this purpose, the Court must take the Applicant’s evidence at its highest, including drawing any available inferences in favour of the Applicant.[5] If, taken at its highest and with the drawing of any such inferences, the evidence is capable of establishing the contravention alleged, then there is a case to answer. The test to be applied is whether the Court could (not would) find for the Applicant on the basis of the evidence adduced.[6] While the relevant authorities[7] establish that there are a number of circumstances in which a ‘no case to answer’ submission may be advanced, that applicable to the circumstances of the present case is where it is argued that the evidence adduced by the Applicant could not support the counts pleaded.
[4] May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654.
[5] Meese & Meese (No 3) [2018] FamCA 807 at [1]; Australian Securities and Investments Commission v Healey [2011] FCA 717; Prentice v Cummins (No 5) [2002] FCA 1503; Protean (Holdings) Ltd v American Home Assurance Co [1985] VicRp 18; [1985] VR 187.
[6] Australian Securities and Investments Commission v Healey [2011] FCA 717; Rasomen Pty Ltd v Shell Co of Australia (1997) 75 FCR 216; May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654; Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433; Fierro & Fierro (No 7) [2023] FedCFamC1A 24; (2023) FLC ¶94-132
[7] See, for example, Residues Treatment & Trading Co Limited v Southern Resources Limited (1989) 52 SASR 54; Prentice v Cummins (No 5) [2002] FCA 1503.
Section 69ZN of the Act sets out a number of principles for conducting child related proceedings. One of those principles includes that proceedings are to be conducted with as little formality and legal technicality as possible. Section 189 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that the proceedings in this Court are not invalidated by formal defect or irregularity unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and the injustice cannot be remedied by an order of the Court.
These considerations must be weighed against the fact that contravention proceedings are quasi-criminal in nature,[8] that a contravention must be precisely stated and proved,[9] and that procedural requirements should be strictly complied with and not lightly departed from.[10] In particular, prejudice to the Respondent must be avoided.[11]
[8] Caballes & Tallant [2014] FamCAFC 112; (2014) FLC ¶93-596; Jackson & Fordham (1995) FLC ¶92-561; Dobbs & Dobbs (2021) FLC 94-021; Jets & Maker [2010] FamCAFC 55.
[9] Sahari & Sahari [1976] FamCA 59; (1976) FLC ¶90-086; Attreed & Attreed [1980] FamCA 81; (1980) FLC ¶90-907; Stevenson & Hughes [1993] FamCA 14; (1993) FLC ¶92-363.
[10] Sahari & Sahari [1976] FamCA 59; (1976) FLC ¶90-086; Nieuwstraten & Nieuwstraten [1987] FamCA 11; (1987) FLC ¶91-826; Stevenson & Hughes [1993] FamCA 14; (1993) FLC ¶92-363.
[11] Caballes & Tallant [2014] FamCAFC 112; (2014) FLC ¶93-596.
In relation to the first 18 counts in the Contravention Application as originally drafted, which alleged contraventions of orders providing for the children to spend time with the Applicant, the totality of the evidence adduced by the Applicant amounted to a bare allegation that the Respondent had not complied with the orders. No evidence was adduced as to the events of the dates in question, whether the Applicant had attended at the designated changeover location or had any direct knowledge that the children were not present, or any other necessary foundational facts. I was satisfied that the Applicant had not adduced sufficient evidence to support the requisite findings as to contravention of the orders and therefore had not established a prima facie case. Accordingly, those counts were struck out on the first day of the hearing.
With respect to the nineteenth count in the Contravention Application, the Respondent submitted that there was no case to answer because the evidence adduced by the Applicant established that the Respondent had in fact complied with the orders, in that she had, according to the Applicant’s evidence, facilitated the children to return the Applicant’s telephone call. I accepted that submission and as a result, that count was also struck out on the first day of the hearing.
With respect to the remaining 10 alleged contraventions, I was satisfied that the Applicant had established a prima facie case. This was for the following reasons:
(a)The evidence adduced by the Applicant, taken at its highest and drawing all available inferences in favour of the Applicant, is sufficient to demonstrate that on each relevant occasion, he placed a call to speak with the children and that call was not answered or returned, with the result that telephone communication therefore did not take place in accordance with the orders.
(b)The evidence adduced by the Father with respect to these remaining counts is supported by contemporaneous evidence in the form of text messages between the parties, which, taken at its highest, also tends to demonstrate that the Mother failed to comply with her obligations pursuant to the orders.
(c)Although the Father is self-represented and the documents prepared by him are not prepared in the exact manner that would be expected had they been prepared by a legal representative, the evidence adduced by the Father, in conjunction with the counts as pleaded in the contravention application, set out with sufficient clarity and precision to the Respondent the allegation made by the Father and the case which she is required to meet, such that no prejudice to the Respondent arises.
As a result, the remaining 10 counts were not struck out and the hearing proceeded with respect to those alleged contraventions.
References to the alleged contraventions in the balance of these reasons are references to those counts that were not struck out.
THE ORDER ALLEGED TO HAVE BEEN CONTRAVENED
Each count pleaded in the Contravention Application which proceeded at the hearing before me relates to paragraph 5 of the orders, which provides as follows:
The father shall have telephone communication with each of [X] born [in] 2010 and [Y] born [in] 2013 each Monday, Wednesday and Friday if the children are not otherwise in his care by telephone to the mother’s mobile telephone […] sometime between 6.45pm and 7.30pm on each Monday, Wednesday and Friday.
The mother shall ensure her mobile is turned on, charged and in a place of reception and assist the children with answering the call and engaging in telephone communication, and if the children are not available to take the call the mother shall do all acts as is reasonable to ensure the children as soon after 7.30pm as is possible return the call to their father.
In my view, adopting a common sense reading of the orders,[12] the reference to the children not being available must be a reference to genuine and unavoidable lack of availability, and not lack of availability contrived for the purpose of avoiding compliance with the orders.
[12] In accordance with Medlow & Medlow [2017] FamCAFC 159; (2017) FLC ¶93-796.
MOTHER’S AWARENESS OF HER OBLIGATIONS
The orders were made in proceedings in which the Mother appeared on her own behalf. She was therefore clearly aware of their existence. The orders had attached to them the fact sheet ‘Parenting orders – obligations, consequences and who can help’, which explains the obligations of parties to orders. The Mother acknowledged when she gave evidence that she had understood her obligations pursuant to the orders. I am satisfied that this was the case.
THE ALLEGED CONTRAVENTIONS
In relation to each of the alleged contraventions, the breach as pleaded in the contravention was in the same terms, being ‘[t]he respondent failed to assist the children to answer my phone call and did not ensure that the children returned my call.’ The contraventions are alleged to have occurred between mid to late 2022. The Mother did not dispute, and I accept, that on each occasion on which a contravention is alleged, the Father placed a call to the children within the times provided for in the orders and the call was not answered.
Under cross-examination, the Father conceded that he could not adduce evidence to prove that the Mother had not had her phone turned on, charged and with reception, and that in relation to most of the alleged contraventions he did not have evidence to positively prove that she had not assisted the children to answer the calls. He also conceded that, with some limited exceptions, for all he knew, it was ‘possible’ that the Mother had done what she could to assist the children to answer or return his phone calls.
This is a logical consequence of the fact that the Father was, of course, not present in the Mother’s home on the occasions when he attempted to telephone the children and therefore did not see her telephone and does not know exactly what the Mother did or did not say or do. However, the Father’s inability to give this evidence does not mean that he is unable to establish non-compliance by the Mother. While the Applicant bears the onus of proof, a Respondent cannot avoid a finding of guilt simply because some matters are peculiarly within his or her own knowledge.[13]
[13] Attreed & Attreed [1980] FamCA 81; (1980) FLC ¶90-907.
The orders do not merely require the Mother to assist the children with answering the Father’s calls. They require that the Father in fact have telephone communication with the children at the designated times. The Mother’s obligation of assistance is not merely to render some ineffective assistance but to assist the children to the point of ensuring that the call in fact takes place. To the extent that the Father’s evidence establishes that that did not occur notwithstanding that the calls were placed by him, non-compliance is capable of being established. Were it otherwise, the provisions of Division 13A could never be applied other than in circumstances where an Applicant was able to give direct evidence of the words and conduct of the other, which would render significant numbers of orders made under the Act unenforceable. I do not consider this to have been the intention of Parliament in enacting these provisions.
It was also put to the Father, and he accepted, that children of the ages of the subject children would not require much assistance to answer a telephone call. However, this does not assist the Mother. Her positive obligation pursuant to the orders is to assist the children to actually answer and engage in the call, not merely to create circumstances in which they could do so if they chose to.
The Father was cross-examined in general terms about a number of matters which, it was put to him, may have made it difficult for the Mother to facilitate telephone calls with him as provided for in the orders. These matters included the children’s ages, mental health and other medical issues experienced by the children over an extended period including the period during which the alleged contraventions occurred, including anxiety in both children an attempt at self-harm having been made by the elder child, gender identity issues experienced by the elder child, problems in the relationship between the Father and the children including allegations of physical punishment and a complaint having been made by the elder child in or about mid-2022 about having been forced by the Father and his partner to eat a sandwich, and child protection involvement with the family.
The Father submitted, and I accept, that if such matters were to be relevant, they would go to a defence of reasonable excuse, which defence was not pleaded by the Mother. Furthermore, as was put to the Father, over the relevant period, the majority of the phone calls provided for in the orders were in fact taking place, which suggests that these general circumstances did not in fact create a significant barrier to the Mother’s ability to comply with the orders.
In any event, if circumstances had in fact arisen which prevented the Mother from complying with the orders of the Court, the appropriate course for her to have taken would have been to make application to vary them, a course of action which was not taken by her during the period in question.
The first alleged contravention
With respect to the first alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 6:50pm in mid-2022 in accordance with the orders and that the call was not answered or returned. He relied upon text messages between the parties on the same day,[14] in which he said to the Mother at 6:50pm ‘calling to speak to the girls. Please have them call me back’ and the Mother responded ‘[Y] is with my mum, and [X] said no the phone call tonight.’ The Mother accepted that these messages passed between the parties.
[14] Exhibit F1.
It is clear from the Mother’s response to the Father that she did not comply with her obligations with respect to Y, in that she did not have Y present to answer the Father’s call. She gave evidence that she had been delayed at work and had not yet collected Y from her Mother. However, she later undermined that evidence by saying that she could not fully recall that date but ‘at times’ she gets held up. In any event, the Mother did not plead that she had any reasonable excuse for non-compliance with the order and instead denied that there had been any non-compliance.
Noting that the Mother’s obligation is to do more than simply leave the choice as to compliance up to the children, her response to the Father, which indicates that she had simply accepted that the parties’ elder child did not want to engage in the phone call, also demonstrates a failure to comply with her obligations with respect to that child. The Mother gave general evidence that she encourages the children to take the Father’s calls by saying things such as ‘hey, Dad is calling, let’s take the call’ and by offering perks such as ice cream or extra time on their devices. However, the only evidence of her approach to the call in mid-2022 specifically is the contents of the text messages, which suggest that she simply accepted that the child had said no.
The Father gave evidence that his phone call was not returned by either of the children. That evidence was not successfully challenged. No telephone record demonstrating the contrary was put to him, with respect to this count or indeed any of the counts. The Mother’s evidence was that she had ensured that the children return the call, but then, inconsistently, said that she could not recall whether they had returned the call. I accept the Father’s evidence. I find this count proven on the balance of probabilities.
The second alleged contravention
With respect to the second alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 6:45pm in mid-2022 in accordance with the orders which was not answered or returned. He relied upon text messages between the parties on the same day,[15] in which he said to the Mother at 6:45pm ‘Calling to speak to the girls. Please have them call me back,’ to which the Mother responded ‘Girls have spoken with your mum. The conversation has upset them both. I have asked them twice did they want to talk to you and they said no.’
[15] Exhibit F2.
The Mother did not plead that she had a reasonable excuse for failing to comply with the orders on this occasion, such as that the children had been upset by a call with their grandmother, and it is therefore not necessary for me to consider whether such circumstances would be capable of constituting a reasonable excuse. It is evident from the content of the Mother’s text message to the Father that she asked the children whether they wanted to speak with him rather than bringing parental authority to bear by making it clear to them that she required that they do so. The obvious inference to be drawn from the Mother’s text message to the Father is that she considered that the children’s response that they did not want to speak with their father to be the end of the matter.
The Mother gave evidence under cross-examination that she had ‘tried on multiple occasions to get them to call but they refused.’ That evidence did not sit easily with the contemporaneous communications. I do not accept it. I consider the Mother’s message sent to the Father on the date in question to be a more reliable record of the Mother’s actions and approach to her obligations on that day.
The Mother again gave evidence that she had ensured that the children returned the call to the Father but then contradicted herself by saying that she could not recall the children returning the call. I accept the Father’s evidence that the call was not returned. I find this count proven on the balance of probabilities.
The third alleged contravention
With respect to the third alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 6:50pm in late 2022 in accordance with the orders which was not answered or returned. On this occasion, the Father sent a message to the Mother at 6.50pm saying ‘Calling to speak to the girls. Please have them call me back.’ The Mother responded at 7.15pm and said ‘Girls r eating.’[16] This flippant response is a completely inadequate explanation for the children not having answered the Father’s call. As acknowledged on behalf of the Mother, the children could eat and speak on the phone at the same time. They could also pause their eating in order to speak on the phone. If that were not the case, the Mother’s obligation pursuant to the orders would plainly have required that she ensure that the children were not eating at the time they were supposed to be speaking with the Father by telephone. The Mother sought to explain her conduct in this regard by saying that sometimes the children do not want food at the time she serves it and want it later. This evidence served only to demonstrate a failure by the Mother to exercise sufficient parental authority to constitute compliance with her obligations pursuant to the orders.
[16] Exhibit F3.
Again, the Mother was unable to say whether the children had returned the Father’s call. I accept his evidence that they did not. I find this count proven on the balance of probabilities.
The fourth alleged contravention
With respect to the fourth alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 7:15pm in late 2022 in accordance with the orders which was not answered. The Father deposed that the children had returned his call the following day but he had missed it, and that when he called back a further time, the Mother had stated that it was ‘outside of calling times.’ He relied on text messages demonstrating this response.[17] Although the Mother’s response was obstructive, the orders do not, by their terms, require that the Mother facilitate further communications if a returned call made to the Father is not answered by him. In my view, although no such submission was made, this count falls within the same category as the count which was struck out on the basis that the Father’s evidence demonstrated compliance with the orders. I do not find this count proven.
[17] Exhibit F4.
The fifth alleged contravention
With respect to the fifth alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 6:45pm in late 2022 in accordance with the orders which was not answered or returned. The Father produced text messages between the parties[18] in which he said ‘Calling to speak to the girls. Please have them call me back,’ to which the Mother responded ‘Girls have been off school today. We all got food poisoning. They are currently sleeping, maybe call tomorrow.’ The Father responded ‘Have them call me back when they’re available.’
[18] Exhibit F5.
The Father accepted that he did not have any reason to believe that the Mother’s assertion that the children were unwell and sleeping was not truthful. The Mother did not plead that she had a reasonable excuse. However, the circumstances described by the Mother would appear to fall within the type of genuine unavailability foreshadowed by the terms of the orders, as distinct from manufactured unavailability or unavailability that was within the Mother’s control to avoid. However, in light of such unavailability, the orders obliged the Mother to do all acts as is reasonable to ensure the children returned the Father’s call as soon after the designated time as possible. The Mother gave vague and unpersuasive evidence that she had ‘encouraged’ the children to return the Father’s call once they were awake, but she was unable to say when the call was returned or whether the children both spoke to the Father. I accept the Father’s evidence that the call was not returned. I find on the balance of probabilities that this count is proven.
The sixth alleged contravention
With respect to the sixth alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 7:00pm in late 2022 in accordance with the orders which was not answered or returned. The Father sent a message to the Mother at 7:00pm in which he said ‘Calling to speak to the girls. Please have them call me back.’ The Mother responded ‘hey I have asked the girls if they want to talk on the phone. The cousins are done [sic] they don’t want to talk tonight.’[19]It was not suggested on behalf of the Mother that the presence of the children’s cousins constituted a reasonable excuse for failure to comply with the order, but rather that the order had not been contravened. It is difficult to see how this could be the case in light of the text message in which the Mother acknowledged that she had asked the children whether they wanted to talk, thus impermissibly leaving it to the children to decide whether or not to comply. Furthermore, if even if it were accepted that the presence of the children’s cousins constituted unavailability within the meaning of the orders, the Mother was required to do all acts as were reasonable to ensure the children returned the call and she was ‘unsure’ whether she had done so. I accept the Father’s evidence that the call was not returned. I find this count proven on the balance of probabilities.
[19] Exhibit F6.
The seventh alleged contravention
With respect to the seventh alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 7:25pm in late 2022 in accordance with the orders which was not answered or returned. Text messages relied upon by the Father[20] demonstrate that he sent a message to the Mother at 7.25pm saying ‘Calling to speak to the girls. Please have them call me back,’ to which the Mother responded ‘will cal [sic] tomorrow. Not with the girls.’ Plainly, if the children were not with the Mother at the time the Father called, she did not assist them to answer his call as she was required to do pursuant to the orders. Although the Mother could have acted to remedy this breach by ensuring that the children returned the Father’s call as soon as possible thereafter, as indeed she indicated to the Father that she would do, she was ‘not sure’ whether this had occurred. I accept the Father’s evidence, which was unchallenged, that his call was not returned. I find this contravention proven on the balance of probabilities.
[20] Exhibit F7.
The eighth alleged contravention
With respect to the eighth alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 7:15pm in late 2022 in accordance with the orders which was not answered or returned. The Father relied on text messages between the parties[21] which demonstrate that on the date in question, the parties’ elder child had had surgery and remained in hospital. The Father sent a message to the Mother at 7:20pm saying that he had been calling to speak to the children and asking that the Mother have them call him back. The Mother responded at 7:55pm and said ‘just seen your call as ur aware I’m at the hospital. [X] is asleep, [Y] is with my mum…’. Although the Mother did not plead that she had a reasonable excuse with respect to this count, the Father accepted, as do I, that it was understandable that in circumstances where the parties’ elder child had been hospitalised, the children might not have had the opportunity to speak with him. Again, this would appear to be the type of genuine unavailability that might arise from time to time as contemplated by the terms of the orders.
[21] Exhibit F8.
The Father asserted that his call was not returned. I accept that evidence. However, given the circumstances surrounding the parties’ child’s hospitalisation and surgery, it was appropriate for the Mother’s priorities to be temporarily directed away from the need to facilitate telephone communication and it is more likely than not that the children remained unavailable in the relevant sense beyond the times provided for in the orders. I do not accept that the Father has established that the Mother intentionally failed to comply with or made no reasonable attempt to comply with the order on this occasion. I do not find this count proven.
The ninth alleged contravention
With respect to the ninth alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 7:10pm in late 2022 in accordance with the orders which was not answered or returned. The Father adduced copies of text messages which passed between the parties on that day.[22] The Father sent a message to the Mother at 7:10pm in which he indicated that he had called to speak to the girls and asked that she have them call him back. The Mother responded at 7.25pm the following day and said ‘Just seen ur message. The girls were talking to your mum last night. And then went to bed.’ This is a wholly inadequate explanation. Neither speaking with the paternal grandmother or going to bed is an exception to the provision in the orders requiring that the children communicate with the Father. The fact that the Mother did not respond for over 24 hours suggests that she did not facilitate the children returning the Father’s call as soon as possible. I find this count proven on the balance of probabilities.
[22] Exhibit F9.
The tenth alleged contravention
With respect to the tenth alleged contravention, the Father alleged that he placed a call to the Mother’s telephone number at 6:45pm in late 2022 in accordance with the orders which was not answered or returned. On this occasion, the Father sent a text message to the Mother at 6:45pm saying ‘Calling to speak to the girls. Please have them call me back.’[23] He received no response. The Mother gave evidence that she ‘would have’ encouraged the children to return the Father’s call, but that she could not specifically recall the events in question. I accept the Father’s evidence that the call was not returned. I find this count proven on the balance of probabilities.
[23] Exhibit F10.
Satisfaction beyond reasonable doubt
For a count to be established beyond reasonable doubt, I must be satisfied that any inference drawn is the only reasonable inference which can be drawn from the evidence and that the Applicant has excluded any reasonable hypothesis consistent with innocence.[24]
[24] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573; Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521.
In relation to each of the counts I have found proven as outlined above, I am not satisfied that the Applicant has excluded all hypotheses consistent with innocence. In particular, having regard to the Mother’s evidence, which was not directly challenged, that she ‘generally’ encourages the children to participate in the phone calls with the Father and to return the calls when they are missed, combined with the fact that the phone calls did, during the period in question, take place on most of the occasions upon which they were scheduled to take place, although I am satisfied that it is more likely than not that the Mother contravened the orders on each occasion alleged, I am not satisfied that the Father has excluded the possibility that one or more of the occasions in question were in fact occasions upon which the Mother did in fact engage in the encouraging behaviours about which she gave general evidence or otherwise make a reasonable attempt to comply with the orders, either by encouraging the children to take the Father’s calls or by encouraging them to return them. In this respect, in addition to the Mother’s evidence of her general approach to the telephone calls, I have regard to the submission made on behalf of the Mother that children of the ages of the subject children are not always amenable to compliance with parental direction and to the particular difficulties faced by this family from time to time, including the mental health difficulties suffered by both children according to the evidence of both parties.
It was submitted on behalf of the Mother that the evidence suggested that the Mother had not only made herself available to facilitate the phone calls from the Father but had gone further and taken the extra step of responding to the majority of the Father’s messages, which was indicative of the fact that she had done her best to comply at all times. I do not accept that the evidence demonstrates that the Mother has complied with, much less exceeded, her obligations. However, the possibility that she has done so on some of the occasions has not been excluded. I do not consider that establishing that the telephone calls did not take place and were not returned, as the Father has done, is sufficient, without more, to establish a contravention of the orders, within the meaning of s 70NAC of the Act beyond reasonable doubt. As such, I am not satisfied that the counts have been proven beyond reasonable doubt.
For all of the reasons outlined above, I find that the Mother has contravened paragraph 5 of the orders of 21 December 2021 without reasonable excuse on 8 occasions.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Associate:
Dated: 15 February 2024
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