Carver and McCaffrey
[2017] FCCA 2043
•22 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARVER & MCCAFFREY | [2017] FCCA 2043 |
| Catchwords: FAMILY LAW – Contravention proceedings – where contravention conceded – whether reasonable excuse established – whether orders to be varied. |
| Legislation: Family Law Act 1975, ss.65N, 70NAA, 70NAC, 70NAD, 70NAE, 70NAF, 70NBA, 70NDA, 70NEA, 70NEB, 70NEC, 70NFA |
| Cases cited: Deakin & Howe [2016] FCCA 2605 |
| Applicant: | MR CARVER |
| Respondent: | MS MCCAFFREY |
| File Number: | WOC 465 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 8 August 2017 |
| Date of Last Submission: | 8 August 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 22 September 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Adams & Partners Lawyers |
| Solicitors for the Respondent: | Mcnamara & Associates |
ORDERS
MS MCCAFFREY having this day been found by the Federal Circuit Court of Australia at Wollongong to have contravened without reasonable excuse an order made by this court on the 23 April 2015 is hereby ordered to enter into this bond pursuant to the provisions of s70NFE of the Family Law Act 1975 and upon the conditions set out below:
(a)Strictly adhere to the obligations in respect of the parenting orders currently operative.
(b)For a period of 12 months be of good behaviour.
Within 6 months, the Respondent complete the Parenting Orders Program or an equivalent post separation parenting program.
Order 4 of the Consent Orders made 23 April 2015 is vacated.
The child X, born (omitted) 2013 shall spend time with the father as follows:
(a)Until the child turns 4:
(i)Each alternate Sunday from 9.00am until 5.00pm;
(ii)At all other times as agreed between the parties.
(b)Upon the child turning 4 as follows:
(i)Each alternate weekend from 10.00am Saturday until 10.00am Sunday;
(ii)From 10.00am Boxing Day until 10.00am on 27 December 2017;
(iii)From 3.30pm Easter Saturday until 3.30pm Easter Day in 2018;
(iv)The Father’s time shall be suspended on the Mother’s Day weekend and the child shall spend time with the Father on the following weekend;
(v)At all other times as agreed between the parties.
(c)Upon the child turning 5 and thereafter:
(i)Each alternate weekend from 10.00am Saturday until 5.00pm Sunday.
(ii)For Father’s Day and Mother’s Day weekends as follows:
A. The child shall spend the Father’s Day weekend with the Father (in accordance with these Orders) and the following weekend shall be suspended.
B. The child shall spend the Mother’s Day weekend with the Mother and the child shall spend time with the Father on the following weekend, in accordance with these Orders.
(iii)From 10.00am Boxing Day until 5.00pm 27 December in 2018 and each year ending in an even number.
(iv)From 5.00pm Christmas Eve until 10.00am Boxing Day in each year ending in an odd number.
(v)From 3.30pm Easter Thursday until 3.30pm Easter Saturday in each year ending in an odd number.
(vi)From 3.30pm Easter Saturday until 3.30pm Easter Monday in each year ending in an even number.
(vii)At all other times as agreed between the parties.
From the first contact weekend in May 2019:
(a)From after school on Friday to 5.00pm on Sunday each alternate weekend;
(b)The child shall spend one week of the school holiday period at the end of Term 1, Term 2 and Term 3.
(c)The child shall spend two weeks of the school holiday period at the end of Term 4.
(d)The child’s weekend time with the Father in accordance with these Orders shall be suspended during the school holiday period and shall recommence on the first weekend of each school term.
IT IS NOTED that publication of this judgment under the pseudonym Carver & McCaffrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 465 of 2014
| MR CARVER |
Applicant
And
| MS MCCAFFREY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about a child, X, born (omitted) 2013. By the time these reasons for judgment are published, X will be nearly 4 years old. On 2 December 2016, her father filed a Contravention Application, which asserts that X’s mother has failed to comply with the terms of consent orders that they entered into on 23 April 2015. These reasons for judgment explain the orders that the Court has made in this matter.
Background
The Applicant Father is 24 years old and the Respondent Mother is 25. They commenced a relationship in 2010, started living together in (omitted) 2012, but separated in August 2013. X was, in fact, born after separation. The Father had limited contact with X during her first year. The Father commenced substantive proceedings in June 2014. A Family Report was prepared and released on 7 April 2015. The parents settled their case on 23 April 2015 in entering into consent orders. They agreed that they would both have equal shared parental responsibility and that X would live with her mother.
Paragraph 4 of the orders dealt with the Father’s time with X and states as follows:
4.The child shall spend time with the father as follows:
(a) Until the child turns 3:
(i) Each alternate Sunday from 10.00 am until 3.30 pm commencing Sunday 3 May 2015.
(ii) That the father’s time shall be suspended on Mother’s Day and the child shall spend time with the father on the following Sunday.
(iii) From 10.00 am until 3.30 pm on Christmas Eve in 2015.
(iv) On Father’s Day from 10.00 am until 3.30 pm.
(v) At all other times as agreed between the parties.
Upon the child turning 3 until the child turns 4 as follows:
(i) Each alternate weekend from 9.00 am Saturday until 3.30 pm Sunday.
(ii) From 10.00 am Boxing Day until 10.00 am 27 December in 2016.
(iii) From 3.30 pm on the Saturday proceeding Father’s Day until 3.30 pm Father’s Day if the child is not already spending time with the father.
From 3.30 pm Easter Saturday until 3.30 pm Easter Monday in 2017.
That the father’s time shall be suspended on the Mother’s Day weekend and the child shall spend time with the father on the following weekend.
At all other times as agreed between the parties.
Upon the child turning 4 and thereafter:
(i) Each alternate weekend from 5.30 pm Friday until 3.30 pm Sunday.
For Father’s Day and Mother’s Day weekends as follows:
(A) The child shall spend the Father’s Day weekend with the father and the following weekend shall be suspended.
(B) The child shall spend the Mother’s Day weekend with the mother and the child shall spend time with the father on the following weekend.
From 10.00 am Boxing Day until 5.00 pm 27 December in 2018 and each year ending in an even number.
From 5.00 pm Christmas Eve until 10.00 am Boxing Day in each year ending in an odd number.
From 3.30 pm Easter Thursday until 3.30 pm Easter Saturday in each year ending in an odd number.
From 3.30 pm Easter Saturday until 3.30 pm Easter Monday in each year ending in an even number.
At all other times as agreed between the parties.
As will be apparent, the orders provided for X to commence overnight time with her father once she turned 3, i.e. from (omitted) 2016. It is common ground that from about July 2016 the Mother started expressing concerns that X was not ready to spend overnight time with her father. The parents, quite properly, entered into family dispute resolution, with the assistance of their lawyers, to address the issue of the commencement of overnight time.
In August 2016, X and her mother attended on a sleep clinic with the intention of addressing some of the issues raised by the Mother. At the end of October 2016, the Mother, through her solicitor, proposed that X commence spending overnight time with the Father once she turns three and a half, namely from 8 May 2017. The parents were unable to resolve the issue. The Father commenced the contravention proceedings. The Mother indicated that she would not be complying with this order, as she did not believe it was in X’s best interests. X has been spending time with her father during day-times only.
Pursuant to an order of this Court, the parents and X attended a Child Inclusive Conference on 11 May 2017 for the purposes of an observation of X’s interaction with each parent. That report became Exhibit “R2” in the proceedings. The contents of the Report will be discussed below.
The matter came for hearing before the Court on 8 August 2017. Both parents were represented by experienced family lawyers. Both parents adopted a pragmatic, realistic approach to the litigation. The Mother conceded that she had contravened the order in question, but maintained that she had a reasonable excuse. The Father submitted that there was no reasonable excuse established on the evidence before the Court.
Neither parent wanted to give evidence and both parties asked the Court to deal with the contravention application on the papers, after having heard submissions. Moreover, both parties - through their legal representatives - asked the Court to make any orders varying the existing parenting orders, irrespective of the Court’s decision about the contravention and notwithstanding the reality that none of the evidence advanced by the parents was to be tested.
Whilst the Court was most reluctant to engage in such a truncated process, it was nonetheless mindful that the pragmatic approach adopted by the parents was driven by the need to avoid costs, as well as the potential adverse impact on the parental relationship that might be exacerbated by cross-examination. The parents have adopted a pragmatic approach in this litigation, and so will the Court.
The Hearing
The Father relied on his affidavit dated 2 December 2016, together with the Child Inclusive Memorandum of 11 May 2017. The Mother relied on her affidavits affirmed 27 April 2017, and 19 July 2017, as well as the Family Report prepared by Dr H dated 7 April 2015 (which became Exhibit “R1”).
Whilst the Mother’s case was that the evidence demonstrated a reasonable excuse, on her behalf orders were proposed by way of variation of the existing orders, whether the Court found that reasonable excuse was established or not. The minute of orders proposed by the Mother are reproduced in the first schedule to these reasons. It will be seen that she proposes alternative orders. The common feature of each order is that the commencement of overnight time is postponed. The Mother’s preference is that X’s overnight time with her father would not commence until she turns 5, but in the alternative she conceded that overnight time would commence from August 2018, shortly before X turned 5.
In terms of orders varying the existing orders, the Father’s approach was that if the Court was minded to vary the orders and postpone the commencement of overnight time, he proposed that it be postponed but for a much shorter period. The Father’s main proposition, however, was that the evidence did not establish a contravention with reasonable excuse and what the Court should do was to require the Mother to enter into a bond to be of good behaviour and to comply with the orders, to attend a parenting program, and to pay the Father’s costs.
The Applicable Law
The applicable law in these cases was summarised by her Honour Judge Obradovic in Deakin & Howe [2016] FCCA 2605 at 26-30, and 42-44, which are reproduced below:
26.The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A Family Law Act 1975 (Cth).
27.Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:
(a)Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;
(b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
(c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
(d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
(e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
(f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F
28.The meaning of “contravened an order” is set out in s70NAC of the Family Law Act 1975 (Cth):
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;
…
(emphasis in original)
29.The mother admitted the contraventions. Therefore, the onus of proof shifted to the mother to establish that she had a reasonable excuse for the contraventions.[1]
[1] ss 70NDA(c); 70NEA(1)(c); 70NFA(1)(c).
30.The meaning of “reasonable excuse” is, relevantly, found in s70NAE of the Act, which reads:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
...
(5) A person (the respondent) 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 in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
In Taikato v R[2] the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:
[2] (1996) 186 CLR 454 at p464-466 per Brennan CJ, Toohey, McHugh & Gummow JJ
… 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 defences of ‘reasonable excuse’ is an exception…
… 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.
A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.[3]
[3] In the marriage of O’Brien (1993) FLC 92-396
Section 70NAE was considered by Warnick J in Childers & Leslie[4] where his Honour said:
[4] (2008) FLC 93-356
… s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “...necessary to protect the health...” and “...not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
…
… The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:
... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.
Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
The mother’s argument was that she had a reasonable excuse within the meaning of s70NAE(5).
The matters referred to earlier are telling of the mother’s lack of reasonable excuse. I find that:
There was no corroborating evidence that Charlie was sick and the mother’s evidence in respect of same was of little weight;
There was no corroborating evidence that Charlie suffered from a contagious illness and the mother’s evidence in respect of same was of little weight;
There was no evidence as to the period during which Charlie was said to be contagious;
There is no evidence on what day the mother attended upon Dr S, or any other medical practitioner with Charlie;
There was no evidence from Dr Sharma, or any other medical practitioner, about the diagnosis and prognosis of the illness which Charlie was said to be suffering from at the time;
There was no evidence that Henry or Gracie were sick;
There is no evidence that Henry or Gracie were ‘contagious’ with regard to the illness which Charlie was said to be suffering from at the time; and
Henry and Gracie attended school on Friday, 1 April 2016 but were called out early from school by the mother.
The Child Inclusive Conference Memorandum
In her memorandum dated 11 May 2017, Family Consultant Ms O observed the strained co-parenting relationship, featuring minimal communication and limited exchange of information about X. Whilst X was able to separate from her mother to be seen alone by the Family Consultant, she appeared somewhat uncertain about this separation and after a brief period asked to return to her mother. The relationship with her mother was observed to be one of a high degree of reciprocity and attunement. X appeared keen to play with her father. She greeted her father with a big smile and ran over to him and hugged her father.
The Family Consultant formed the view that X appeared to tolerate brief separations from both her parents. She appeared to be affectionate with both her parents. She was familiar and affectionate with her father. She demonstrated a preference for interacting with her father, over the Family Consultant, however she seemed most comfortable in the company of her mother.
Importantly, the Family Consultant observed that, based on her observation, it was not readily apparent in the period of observation how X may use her father for comfort in a situation of stress. In the last dot point on the second page of the Report, the Family Consultant states:
Overnight time presents opportunity for different types of interactions between a child and parent. Given the distance between the parents’ homes, it would represent a chance for X to experience the daily routine in Mr Carver’s home environment. This would differ to the time she currently shares with her father, which is largely day outings to parks, activity centres, and so on.
On the last page of the memorandum, Ms O observes:
Overnight stays can be stressful for young children, however, as they involve separation from a familiar setting and caregiver. If Ms McCaffrey’s account is accurate, X has not yet developed a capacity to self-soothe at night and is reliant on her mother to calm and reassure her. Having this support unavailable to her may cause stress and anxiety. It is likely that this may be better tolerated as a child develops, can communicate their needs more effectively, and is more independent.
By way of background, the Mother had reported to the Family Consultant some of the longstanding difficulties that X experienced with getting to sleep, and remaining asleep during the night. The Mother explained to her that X had never had a night away from her, and that X became very distressed if her mother was not physically present at sleep times.
The Mother explained to the Family Consultant that they had attended a sleep clinic in 2016, and X had transitioned from having to lie with her mother in bed, to simply holding her mother’s hand prior to sleep. The Family Consultant observed that the Mother was strongly of the view that X was not ready for overnight time with her father.
Ms O’s final comments are summarised under the heading of Future Directions:
·Ms McCaffrey does appear to have some genuine concerns about how X may manage overnight time at this stage. She is however open to extended day time contact.
·Supplementing the current time with facetime/skype at set and scheduled times may be beneficial. The parents exchanging information about X’s interests and routines would assist. A careful transitioning to overnight time is suggested so that X is familiar with spending time in the paternal house during the day, that Ms McCaffrey is staying locally during the first few overnight stays (in case of difficulty) and ensuring that there is a similar night time routine, with transition objects such as blanket/teddy etc may be beneficial.
·While overnight time is a pressing concern for the parents, addressing the larger issue of communication and sharing information about X is also critically important. Engagement with an agency such as Unifam or Relationships Australia on this may be beneficial.
·It may be useful for the parents to consider addressing these wider issues and then look at reconsidering/reviewing overnight time when, for example, X is 4 years old.
What is of concern to the Court is the failure of both parents to take on board the important recommendations that Ms O made. None of the proposals advanced to the Court, for example, take up the recommendations in the second dot point. Neither parent seems to recognise the responsibility that they have to address the larger issues of communication and information sharing. Neither proposal reflects the final recommendation of Ms O and that is that the issue be reviewed when X is 4 years old. Both parents seem to want the Court to do something now as if, by waving a magic judicial wand, all of the underlying issues in this family are made to disappear.
The Child Dispute Conference Memorandum is important evidence, but it is, of course, limited. It provides preliminary expert advice. The views are limited by the context of the very restricted interaction that the Family Consultant observed. Moreover, one of the important issues implicitly raised in the Father’s case is not addressed, i.e. the genuineness of the Mother’s concerns in relation to X, and the closely related issues of whether the source of any stress that X suffers is, in fact, her mother.
The Report of Dr H
Dr H was the Regulation 7 Family Consultant, who prepared a report dated 7 April 2015 in the context of the proceedings at the time. It bears recording in passing that this report was ordered on 6 November 2014, and provided to the Court on 7 April 2015, a mere five months later. Currently, in this registry of the Court, the same report would take at least 12 months to prepare. In any event, the issue for Dr H was X’s time with her father, and how it progresses to overnight stays. An important paragraph of Dr H’s report is paragraph 30:
30.After the father’s individual interview the mother was called back to the waiting area with the child. She carried X into the vestibule of the interview room where Mr Carver was waiting. As soon as she saw her father X started protesting vocally. She clung to her mother with her arms and legs – like a baby monkey. She vehemently resisted being handed over. Ms McCaffrey spoke to her soothingly and encouragingly as she prised her off and handed her to Mr Carver, then left the room. X cried. Mr Carver attempted to soothe her appropriately – talking softly, holding her gently but firmly, trying to distract her – but X was inconsolable. She became more distressed. After a few minutes Mr Carver agreed that it looked like X would not settle. Ms McCaffrey was called back. X calmed within 30 seconds of entering her mother’s arms – which is the reunion response one would expect of a securely attached child.
The significance of this paragraph is in its contrast to Ms O’s observation in the Child Inclusive Conference. X has clearly progressed in terms of coping with changeovers, and has developed in the nature and strength of her relationship with her father.
Dr H’s report is comprehensive, and the Court believes it is disproportionate to the issue before it other than that the most important recommendations. Thus, at paragraph 43, Dr H recommends:
43.Overnight visits with the father should not commence before X is three, and only if she seems ready to stoically endure long car trips and overnight separations from her mother every second weekend. It may be better to alternate weekend visits at the Windang caravan with weekend visits to the paternal grandparents’ home.
Indeed, at paragraph 44, Dr H recommends visits for a week in the school holidays from age 5. What is reasonably clear is that these parents settled the proceedings at the time and entered into consent orders which largely reflected Dr H’s recommendations. What is also painfully apparent to the Court is that these parents do not appear to have taken on board many of Dr H’s other recommendations pertaining to them, and their relationship and communication with each other.
Ms Ferguson, who appeared on behalf of the Mother, and who indeed tendered Dr H’s report, sought to emphasise that Dr H’s recommendation for overnight time was, in fact, conditional: “…only if she seems ready to stoically endure long car trips and overnight separations from her mother..”. On behalf of the Mother, she submitted that the evidence established that this precondition had not been met, despite the best intentions of the parents as reflected in the consent orders.
The focus now turns to the evidence of the Mother.
The Mother’s Evidence
In the Mother’s first affidavit of 27 April 2017, and focussing solely on the issues before the Court, she deposes to the time that she and X spent at the sleep clinic. The Mother explains however that even after returning home from the clinic, X would not go to sleep unless she put her to sleep and reassured her that she would be there in the morning. She relies on the records namely, the observation notes from the sleep clinic but, with great respect to the mother, it is hard to see how these notes assist the Mother’s case in establishing a reasonable excuse.
For example, a note made on 17 August 2016 refers to the need for the Mother “to be persistent and consistent...explore ways to cope when settling difficult...”. The notes from the sleep clinic are as consistent with the hypothesis that any problem that X is experiencing is attributable to how her mother copes with the situation, as it is consistent with the contrary proposition. The notes from the sleep clinic really do not assist the Mother’s case.
The Mother’s affidavit of 19 July 2017 is an obvious attempt to bolster the evidence in her case. She describes her daughter as a very anxious child who is extremely difficult to settle. The Mother explains that she has to stay in her room until she goes to sleep, and if she does not “she becomes hysterical. I need to hold her hand until she goes to sleep.” The Mother also provides evidence of X’s reluctance to spend time with her father.
Has a Reasonable Excuse been Established?
The onus of proof in this regard was on the Mother. Doing the best the Court can to understand the Mother’s case, it seems that her contention was that her reasonable excuse for not complying with the order for overnight time was because she believed, on reasonable grounds, that not allowing overnight time was necessary to protect the health and safety of X, and that the delay in the implementation of overnight time was not longer than was necessary to protect her health and safety.
The meaning of the term is described earlier in these reasons. The Court concludes that even on the Mother’s own evidence, untested as it is, she has not established reasonable excuse within the meaning of s.70NAE. There was no corroborating evidence of the matters asserted by the Mother. The notes produced by the sleep clinic raise more concerns about the Mother’s case than supports for it.
The Mother’s evidence fails to address the very strong theme in the Father’s case, which is that the real problem is the Mother’s anxiety, rather than the child’s anxiety. Indeed, on any objective assessment of the evidence before the Court, it is clear that X’s relationship with her father has progressed substantially between the Family Report interviews, and the Child Inclusive Conference. There is simply no plausible explanation as would constitute reasonable excuse that explains not so much why X might be difficult to settle at bedtime, but rather what the Mother has done to deal with these issues such that she is able to comply with the very serious obligation she took on herself as a result of entering into the consent orders.
In this regard, s.70NAD(b) and s.65N of the Act says that the Mother must not hinder or prevent the child from spending time with her father in accordance with the order, or interfere with that taking place. The Mother has failed to establish a reasonable excuse for the purposes of s.70NAE.
Penalty
The Court’s findings, and the Mother’s concession, activates subdivision E of Division 13A of Part 7 of the Act. The contravention has been established without reasonable excuse, but clearly this case falls within the category of a less serious contravention. The power of the Court is as set out in section 70NEB(1):
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Note 1: The court may also vary the primary order under Subdivision B.
Note 2: paragraph (1)(a)--before making an order under this paragraph the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).
It is clear that paragraph (a) applies, and that the Mother would benefit from attending a post separation parenting program which would assist her in her role to manage the transitions to overnight care whilst with her father.
Interestingly, the Father’s approach in this case was not to seek compensatory time, but, as will be discussed below, to recognise the wisdom in postponing the commencement of overnight time. Accordingly, the question of compensatory time is not one before the Court.
The Father seeks, and the Court will impose, an order under paragraph (d) of s.70NEB(1) namely, that the Mother enter into a bond in accordance with s.70NEC. The bond will be for 12 months, and will be without surety and without security. The conditions of the bond will be that the Mother be of good behaviour and comply with all orders of the Court in relation to X.
The Mother must understand that the purpose of the bond is to ensure her compliance with the Court orders, and that if she does not comply with the conditions of the bond, she will be brought to account not just for any past contravention, but any future contravention, including a breach of bond conditions. The Mother must understand that the cumulative consequences of a failure to comply with Court orders becomes much more serious.
The Court notes that s.70NEB(1)(c) empowers it to adjourn the proceedings for the purposes stated therein. The Court had considered this. Indeed, it was raised with the parties during the hearing. The Court observed that, despite the concerns the Mother articulated about the orders and their impact on X, she had not applied to vary the orders other than in advancing a set of orders that the Court might consider under s.70NBA (discussed below).
The Court was contemplating, and had openly mentioned in Court that an option for it was to adjourn the proceedings but vary the orders on an interim basis to see how X copes with any changes. Moreover, the Court had openly expressed its concerns about being asked to vary orders on either an interim, or final basis, on the limited evidence before it and in circumstances where the parties obviously did not want to go into cross-examination.
Finally, the overriding consideration was that, it appeared to the Court, the parents were focussed on finalising the matter through the present application, primarily because of pragmatic cost considerations. In the circumstances, the Court has decided not to adjourn the proceeding.
The Father also sought an order for costs pursuant to paragraph (f) of s.70NEB(1). There is no compulsion to even consider costs as s. 70NEB(7) is not activated. As it turns out, the Court believes this is a case where s.117(1) applies, and each party should bear his or her own costs. The imposition of a costs order would, in this Court’s view, merely add to the complexities of this case rather than address them.
Variation of the parenting orders?
Section 70NBA of the Act provides:
Variation of parenting order
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b) there was no post-separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
The Court notes that s.70NBA(2) does not apply as the contravention without reasonable excuse was of a less serious nature.
The Court has already expressed its frustration about having to make an order in such constrained circumstances. The Mother’s proposal has already been articulated. It is clear that she is seeking to postpone the commencement of overnight time for a considerable period. The problem with the Mother’s proposal is that it is completely unsupported by any evidence, and it does nothing to address the concerns of both the Father, and this Court, that it is the Mother who needs assistance in supporting X’s time with her father.
The Mother seems to be of the belief that, somehow, postponing the introduction of overnight time to a certain chronological age will, of itself, address the problems that she describes (albeit in a very limited way) in her evidence. She does not explain, however, what will change to bring about this result. She does not explain, for example, why the change that she clearly anticipates cannot be brought about at an earlier chronological age for X. She does not lead evidence as to what she, herself, can do to facilitate this. With great respect to the Mother, her evidence, and indeed her entire case, seemed to proceed on the basis of metaphorically putting her head in the sand and, without doing anything herself, hoping that X’s issues will go away. The Court does not accept that.
However, the pragmatic reality that the Court must accept is that, in all likelihood, the Mother is a highly anxious person, and the relationship between the parents is one that is fraught with lack of trust, inability to communicate and, in all likelihood, a measure of inconsistency on the Father’s part as regards his time and communication with X. All of this means that simply insisting on a rigid application of the existing consent orders would be fraught with difficulty from X’s perspective. The reality is that the Mother needs some time to adjust to the changes that will have to take place.
The minute of order proposed by the Mother bear some resemblance to the consent orders, but otherwise contain provisions that differ from the consent orders. The Court believes that the far safer approach would be to try to maintain the integrity of the existing consent orders and focus on the issue at hand, namely when to introduce overnight time.
Having regard to the evidence before it, as limited as it is, the Court believes that the order should be varied in the following substantive way. Until X turns 4, which is on (omitted) this year, the Father’s time on weekends should be alternate Sundays from 9 am until 5 pm. In this regard, there is no suggestion that X is not coping with the time with her father, indeed the opposite seems to be the case.
From X’s fourth birthday, however, her time with her father should be from 10 am Saturday until 10 am on Sunday. This thus introduces one overnight each alternate weekend, with a relatively early return into her mother’s care on the Sunday morning. However, by the time that X turns 5 on (omitted) 2018, her time with her father should be from 10 am Saturday until 5 pm Sunday. It will thus be still one overnight, but longer days with her father.
It is likely that X will commence school in 2019, after she has turned 5. Whether she has started school or not in 2019, by the time she is five and a half, namely (omitted) 2019, there is no reason why she should not be able to have alternate weekend time with her father from after school on Friday until 5 pm on Sunday, which seems to have been broadly contemplated in the original consent orders.
The orders that the Court will make will reflect these amendments to order 4 of the consent orders. Those consent orders will not be amended, however, as regards special days and school holidays, with the exception of order 5 that at least raises the possibility of a one-week holiday with her father before X has commenced full weekends with her father in (omitted) 2019. Accordingly, to provide a gentler transition for X into extended overnights, one-week school holiday periods should not start until the mid-year school holidays 2019.
In order to implement these variations to the consent orders, some consequential amendments may need to be made.
Conclusion
The Mother must consider the implications of the orders made, and the findings made by the Court. She must adopt a proactive approach to dealing with these issues. If she does not, it is highly likely this matter will come back before the Court.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 22 September 2017
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