Callahan and Callahan
[2013] FMCAfam 106
•8 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALLAHAN & CALLAHAN | [2013] FMCAfam 106 |
| FAMILY LAW – Children – contravention – Application-Contravention – application to deal with respondent for contravention of parenting orders – three children residing with respondent father – whether respondent made no reasonable attempt to comply with orders – reasonable excuse – whether reasonable excuse established – positive obligation on parent to encourage children to spend time with the other parent in compliance with court order. |
| Family Law Act 1975, ss. 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC |
| Callahan & Callahan (No.2) [2012] FMCAfam 1114 Matthews v Millar (1988) 12 Fam LR 205 In the Marriage of O’Brien (1992) 16 Fam LR 723; FLC 92-396 Stevenson v Hughes (1993) FLC 92-363 |
| Applicant: | MS CALLAHAN |
| Respondent: | MR CALLAHAN |
| File Number: | SYC 1855 of 2012 |
| Judgment of: | Scarlett FM |
| Hearing date: | 5 February 2013 |
| Date of Last Submission: | 5 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Southern Waters Legal |
| The Respondent: | In person |
ORDERS
The Respondent did on 12 October 2012 without reasonable excuse contravene Order (4)(a) made on 28 September 2012 by making no reasonable attempt to deliver the children [Y] born [in] 1999 and [Z] born [in] 2005 into the care of the Applicant in order that the children should spend time with her.
The Respondent did on 19 October 2012 without reasonable excuse contravene Order (4)(b) made on 28 September 2012 by making no reasonable attempt to deliver the children [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2005 into the care of the Applicant in order that the children should spend time with her.
The Respondent did on 23 October 2012 without reasonable excuse contravene Order (4)(c) made on 28 September 2012 by making no reasonable attempt to deliver the children [X] and [Y] into the care of the Applicant in order that the children should spend time with her.
Count 4 alleging a contravention of Order (4)(c) made on 28 September 2012 on 30 October 2012 is dismissed.
The Respondent did on 2 November 2012 without reasonable excuse contravene Order (4)(b) made on 28 September 2012 by making no reasonable attempt to deliver the children [X], [Y] and [Z] into the care of the Applicant in order that the children should spend time with her.
The Respondent did on 6 November 2012 without reasonable excuse contravene Order (4)(c) made on 28 September 2012 by making no reasonable attempt to deliver the children [X], [Y] and [Z] into the care of the Applicant in order that the children should spend time with her.
The Respondent did on 13 November 2012 without reasonable excuse contravene Order (4)(c) made on 28 September 2012 by making no reasonable attempt to deliver the children [X], [Y] and [Z] into the care of the Applicant in order that the children should spend time with her.
The Respondent did on 16 November 2012 without reasonable excuse contravene Order (4)(b) made on 28 September 2012 by making no reasonable attempt to deliver the children [X], [Y] and [Z] into the care of the Applicant in order that the children should spend time with her.
IT IS NOTED that publication of this judgment under the pseudonym Callahan & Callahan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1855 of 2012
| MS CALLAHAN |
Applicant
And
| MR CALLAHAN |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother of three boys claiming that the father contravened eight Orders made by this Court on 28 September 2012. Five other claims were not pressed.
The Respondent denies the contraventions.
The orders said to have been contravened are Orders (4)(a), (4)(b) and (4)(c) made on 28 September 2012. The orders were made after an interim hearing (Callahan & Callahan (No.2)[1]). The orders relate to the parties’ three sons:
a)[X] who was born [in] 1997;
b)[Y] who was born [in] 1999; and
c)[Z] who was born [in] 2005.
[1] [2012] FMCAfam 1114
Orders (4)(a), (b) and (c) state:
That the children spend time with the mother during school terms as follows:
(a) from after school Friday until before [sport omitted] on Saturday morning each alternate week or if there is no [sport omitted] until 6:00 pm;
(b) from after school Friday until 6:00 pm Saturday each other week in respect of the children [X] and [Y] and until the commencement of school on Monday in the case of [Z]; and
(c) from after school Tuesday until before school on Wednesday each week.
The Alleged Contraventions
In her Application filed on 23 November 2012 the mother claims that the father contravened the Orders on 12, 19, 23 and 30 October, and 2, 6, 13 and 16 November 2012.
In the first count, the mother claims a contravention of Order (4)(a) on 12 October 2012:
The Respondent advised the Applicant that [Y] and [Z] did not attend school on Friday 12 October 2012…the respondent failed to respond to the repeated attempts made by the Applicant regarding the collection of the children…the Applicant did not spend Friday afternoon or evening with [Y] and [Z] pursuant to the Orders.
The second count claims a contravention of Order (4)(b) on 19 October 2012:
The Respondent advised that [Z] did not attend school on Friday 19 October 2012. The Respondent failed to attend [omitted] Shops at 3:30 pm on Friday 19 October 2012 to deliver [X], [Y] or [Z] to the Applicant nor did the Respondent answer the Applicant’s numerous phone calls.
The third count claims a contravention of Order (4)(c) on 23 October 2012:
The Applicant attended upon [D] School on Tuesday 23 October 2012 to collect [X] and [Y] but the two children were not there to be collected. The Applicant also attended [B] School on Tuesday 23 October 2012 to collect [Z] and was advised by staff that [Z] had run out the side gate. The Respondent advised that [Z] was not in his care.
The fourth count claims a contravention of Order (4)(c) on 30 October 2012:
The Applicant attended [B] School at 10:00 am on Tuesday 23 October[2] 2012 for reading but was advised by staff that the Respondent had not sent [Z] to school. The Applicant later attended upon [D] School on Tuesday to collect [X] and [Y] but the two children were not there to be collected. The Respondent did not assist the Applicant in making alternate arrangements to ensure compliance with the Orders.
[2] sic
The fifth count claims a contravention of Order (4)(b) on 2 November 2012:
The Applicant attended upon [X] and [Y]’s school but the two children were not there to be collected. The Applicant then attended upon [Z]’s school but was advised by staff that [Z] had not attended school. The Respondent refused to make alternate arrangements for the Applicant to spend time with the children.
The sixth count claims a contravention of Order (4)(c) on 6 November 2012:
The Respondent did not send [Z] to school on Tuesday 6 November 2012 and refused to make alternate arrangements. The Applicant later attended upon [D] School on Tuesday to collect [X] and [Y] but the two children were not there to be collected.
The seventh count claims a contravention of Order (4)(c) on 13 November 2012:
The Respondent did not send [Z] to school on Tuesday 13 November 2012. The Applicant later attended upon [D] School on Tuesday to collect [X] and [Y] but the two children were not there to be collected. The Respondent refused to make alternate arrangements with the Applicant for the collection of the children.
The final count claims a contravention of Order (4)(b) on 16 November 2012:
The Respondent did not send [Z] to school on Friday 16 November 2012. The Applicant later attended upon [D] School on Tuesday to collect [X] and [Y] but the two children were not there to be collected. The Respondent failed to attend [omitted] Shops at 3:30 pm on Friday 16 November 2012 to deliver [X], [Y] or [Z] to the Applicant.
Evidence
The mother relied on her affidavit sworn on 22 November 2012. She was not required for cross-examination.
Paragraphs [26] to [31] of the mother’s affidavit relate to the first count, the allegation of a contravention of Order (4)(a) on 12 October 2012. This count only relates to the children [Y] and [Z], as the mother was aware that the eldest boy, [X], was to be away at a [omitted] camp that weekend. It is the mother’s evidence that the father emailed her that [Y] and [Z] were not at school that day. He did not respond to any further telephone call, email or text message from the mother.
Paragraphs [32] to [41] relate to the second count, alleging a contravention of Order (4)(b) on 19 October. This count relates to all three children. It is the mother’s evidence that she received a telephone call from a parent of another child at [Z]’s school advising her that the children had an excursion that day and [Z] was the only child not attending.
The mother contacted the school later that morning and ascertained that [Z] had not attended school that day.
Paragraphs [51] to [62] of the affidavit relate to the third count, the allegation of a contravention of Order (4)(c) on 23 October 2012. This count relates to all three children. It is the mother’s evidence that the children [X] and [Y] were not at [D] School, the school that they attend. She deposed that she attended [B] School at 3:15 pm to collect [Z], and saw [Z] and other students walking with their teacher, Ms B.
The mother went on to state:
I saw [Z] retreat to the back of the line and then run down the oval and disappear from my eyesight. His teacher, Ms B, myself and another parent ran after [Z] but could not see him. Ms B then reported him missing at the office and put out a school alert.[3]
[3] Affidavit of Ms Callahan 22.11.2012 at paragraph [56]
The fourth count is defective on its face. It alleges a contravention of Order (4)(c) on 30 October 2012, but the particulars of the claim in the fourth count state:
The Applicant attended [B] School at 10:00 am on Tuesday 23 October 2012 for reading but was advised by staff that the Respondent had not sent [Z] to school.
True it is that paragraphs [71] and [72] of the mother’s affidavit refer to events said to have occurred on 30 October 2012, but in my view the evidence cannot cure a defect in the count alleging the contravention. It follows that this count must be dismissed.
Paragraphs [78] to [86] of the affidavit relate to the fifth count, alleging a contravention of Order (4)(b) on 2 November 2012. This count relates to all three children. It is the mother’s evidence that on the afternoon of 2 November she drove to [D] School to pick up [X] and [Y]. She waited for 15 minutes but the boys did not appear.
The mother deposed that she then drove to [Z]’s school but, on her arrival, she was informed by the child’s teacher that he was not at school.
The mother further deposed that she rang the father to speak to [Z], but, before she could say anything, the father said to her:
“Stop ringing me – fuck off”.[4]
[4] Ibid at [84]
Paragraphs [87] to [94] of the mother’s affidavit relate to the sixth count, which alleges a contravention of Order (4)(c) on 6 November 2012. The mother deposed that the father did not send the child [Z] to school that day. She telephoned the father and said that she would collect the boys at 3:30 pm at the [shop]. When she arrived at the [shop], the father was there with all three of the boys.
The mother states that the father said to her:
“You are not taking the boys, they don’t want to go.”[5]
[5] Affidavit of Ms Callahan 22.11.2012 at [90]
She stated that [Z] then said to her, words to the effect of:
“You’re not taking me, I don’t have to go with you.”[6]
[6] Ibid at [91]
The mother also deposed that the father said to her:
“Until you get rid of [Mr S], they want nothing to do with you.”[7]
[7] Ibid at [93]
The mother further deposed that the child [Y] said to her words to the effect of:
“I’m not coming with you. I don’t have to.”[8]
[8] Ibid
The mother went on to state that the father continued to say words to the effect of:
“They are not going.”[9]
[9] Ibid at [94]
Paragraphs [97] to [100] of the mother’s affidavit relate to the seventh count, which alleges a contravention of Order (4)(c) on 13 November 2012. It is the mother’s evidence that [Z] did not attend school on that day and when she went to the usual pick-up place at the [shop] neither [X] nor [Y] were in attendance.
Paragraphs [101] to [106] relate to the eighth count, alleging a contravention of Order (4)(b) on 16 November 2012. It is the mother’s evidence that [Z] did not attend school on that day. The mother deposed that she went to the school attended by [X] and [Y] to collect them but they were not there. She attempted to telephone them without success.
The father relied on his affidavit of 24 January 2013. He gave oral evidence and was cross-examined by Mr Othen of counsel, for the mother.
The father makes this bizarre statement in his affidavit:
I would also advise that at no time has anyone including the Applicant, the Independent children’s lawyer or Mr F advised the children on how day to day life would operate when they were in the applicant’s care as per the current orders dated 28 September 2012. The living arrangements where the children would sleep and so on, how do they see there[10] friends, how do they get to school, what are they allowed to or not to do, the children were just thrown into the new orders with little consultation from the applicant or their ICL.[11]
[10] sic
[11] Affidavit of Mr Callahan 24.2.2013 on page 2 (unnumbered paragraph)
The father does not explain in his affidavit why the children should need any instruction in how to live with their mother.
Throughout his affidavit and his oral evidence the father denies that he has breached the parenting orders. He claims that the children have constantly refused to stay with her.
In respect of the first count, relating to 12 October 2012, it is the father’s evidence that he was going away with the eldest boy, [X], on a father and son [sport omitted] trip from 11 to 14 October. He states that he told [Y] and [Z] that they would have to stay with their mother but they refused:
Both boys refused to stay with their mother and threatened that if they were forced they would take off and come back to my residence and stay here alone, I told the boys that this is serious and they need to comply with the courts orders, [Y] was very adamant that there was no way he would stay at the applicants residence and I also advise that [Y] has never stayed one night at her residence at [omitted].[12]
[12] Ibid at paragraph [3]
The father arranged for the two boys to stay with his uncle, a man named Mr T.
As well as maintaining that the children are adamant in their refusal to spend time with their mother, the father claims that [Z] has suffered stress as a result of this issue and has “started bed wetting, hay fever and nose bleeds”.[13]
[13] Affidavit of Mr Callahan 24.1.2013 at [12] and [13], see also [14]
The father sets out at paragraph [41] of his affidavit his proposal to vary the current parenting orders, which would involve the children living with him and spending time with their mother:
a)From after school until 8:00 pm on Wednesdays;
b)From 9:00 am to 8:00 pm on alternate Sundays;
c)On their birthdays;
d)On the mother’s birthday;
e)On Mother’s Day; and
f)During the day in the school holidays.
The father seeks a specific order:
That at no time do the children sleep over at their mother’s residence.
The father also states:
The children have advised that they will not sleep over.
Contravention of parenting orders
Contravention of parenting orders is defined by s.70NAC of the Family Law Act. Where a person is bound by an order, the person contravenes the order when he or she has:
a)intentionally failed to comply with the order; or
b)made no reasonable attempt to comply with the order (see s.70NAC(a)).
An applicant in contravention proceedings must show that:
a)there is an order in existence; and
b)the respondent has contravened the order (see s.70NEA(1)).
Once the contravention has been proved, it is up to the respondent to show that he or she had a reasonable excuse for contravening the order (s.70NEA(1)(c)).
Once the contravention has been established and the Court is satisfied that the respondent does not have a reasonable excuse, the Court will decide whether to deal with the matter under Stage 2 of the three-stage regime prescribed by the Act, or whether Stage 2 does not apply (s.70NEA(4)).
If the Court is satisfied that the Stage 2 procedure is appropriate, the Court may exercise all or any of the powers set out in s.70NEB(1), which are:
a)directing the respondent to attend a post-separation parenting program;
b)making a further parenting order compensating the applicant for the time not spent with the child or children;
c)adjourning the proceedings to allow a party to discharge, vary or suspend the primary order;
d)ordering the respondent to enter into a bond in accordance with s.70NEC;
e)making an order for monetary compensation; and
f)making an order for costs against the respondent.
Conclusions
The Respondent has denied contravening the orders. He has not challenged the Applicant’s evidence by cross-examination. He has been cross-examined by the Applicant’s counsel.
In my view, the evidence in support of the third count, relating to 23 October 2012, is sufficient to support a finding of a contravention of the order in respect of the boys [X] and [Y], but not in respect of [Z]. The evidence is that when the mother went to collect him from school, [Z] ran away. There is no evidence that the father was anywhere in the vicinity at the time and nothing to support the hypothesis that the father in some way caused [Z] to run away or failed to prevent him from doing so.
However, the evidence supports a finding in respect of the two older boys.
As was indicated at [20] and [21] above, count 3 is defective in the way it has been framed in that the particulars alleged do not support the allegation. It must be dismissed.
In all other respects the evidence supports the contraventions alleged, in that the father either intentionally failed to comply or made no reasonable attempt to comply with the various orders. The standard of proof is, of course, proof on the balance of probabilities (s.70NAF(1)).
Reasonable Excuse
The Applicant does not need to lead evidence negativing reasonable excuse. Paragraph 70NEA(1)(c) requires a respondent to “prove that he or she had a reasonable excuse for the current contravention”.
Section 70NAE sets out a list of circumstances in which a person may be taken to have had a reasonable excuse for contravening an order affecting children. The list is not exhaustive.
The father has claimed that the children do not wish to go with their mother and they have refused. He has also claimed that on various Tuesdays and Fridays [Z] has claimed to be feeling ill, so he has not sent him to school.
It is not a reasonable excuse for a parent to adopt a policy of passive resistance or even to take a neutral stance. There is a positive obligation on a parent to comply with an order that the child or children should spend time with the other parent in accordance with a parenting order.
It is not sufficient compliance with an order that a child spend time with a parent to tell a child that it is for the child to decide whether or not to spend time with the order parent. There is an obligation on the parent with whom the child is living to encourage the child to spend time with the other parent and to take reasonable steps to deliver the child to the other parent (In the Marriage of O’Brien[14]). Similarly, it was held by Hodgson J in Matthews v Millar[15] that:
In the absence of authority, my view is that what persons in the position of the defendants are obliged to do is to do whatever is reasonable to bring about compliance with the court order. If in a particular case in all the circumstances it would be reasonable to take positive steps to bring about some change in the attitude and wishes of the child, then I think persons in the position of the defendants are obliged by the order to take those steps.[16]
[14] (1992) 16 Fam LR 723; (1993) FLC 92-396
[15] (1988) 12 Fam LR 205
[16] (1988) 12 Fam LR 205 at 207
The existence of a positive obligation to encourage a child to spend time with the other parent has been made clear by the Full Court of the Family Court in Stevenson v Hughes[17]:
It is not a sufficient discharge of custodian’s obligations, express or implied, to point to words and actions and to say, in effect: ‘You see, I tried. But the child does not want to go,’ and thereafter to figuratively fold their arms as if that were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.[18]
[17] (1993) FLC 92-363
[18] (1993) FLC 92-363 at 79,815-6 per Fogarty J, citing Moore J
It is a matter of concern that the mother gives evidence of the children refusing to go with her whilst the father is present, saying, in the case of [Y] and [Z], that they do not have to go with her. Where, one might ask, do children learn that they do not have to comply with a Court order?
It is also a matter of concern that there is evidence of [Z] not having attended school on seven occasions between 12 October and 16 November 2012. When [Z] and the other two boys do not attend school, it has the effect of preventing the mother spending time with the children. But there is also a wider concern that [Z], in particular is missing a lot of school whilst in his father’s care. The doctor’s notes that were tendered in evidence show that the doctor’s impression was that there was “No physical reason found why [Z] can’t go to school or be with mum ([Ms Callahan]).”
The father has not established a reasonable excuse for the seven contraventions alleged. The powers given to the Court by s.70NEB(1) include making a further parenting order and discharging, varying or suspending the primary order. Thus, it is appropriate to provide a copy of these Reasons to the Independent Children’s Lawyer for her information. On the next occasion the Court will hear submissions from the parties and the Independent Children’s Lawyer as to what orders should be made.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 11 February 2013