Chilton and Chilton
[2009] FMCAfam 410
•1 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILTON & CHILTON | [2009] FMCAfam 410 |
| FAMILY LAW – Contravention – parenting orders. |
| Family Law Act 1975 ss.70NAC; 70NAE; 70NCA – 70NFJ |
Gaunt & Gaunt (1978) FLC 90-468
O'Brien & O'Brien (1993) FLC 92-396
Stavros & Stavros (1984) FLC 91-562
| Applicant: | MR CHILTON |
| Respondent: | MS CHILTON |
| File Number: | PAM 3348 of 2005 |
| Judgment of: | Altobelli FM |
| Hearing date: | 13 March 2009 |
| Date of Last Submission: | 13 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 1 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodgson |
| Solicitors for the Applicant: | Sorenson & Brown |
| The Respondent: | Self represented |
ORDERS
That the Respondent did contravene orders made 28 November 2005, 21 December 2006 and 3 April 2007 without reasonable excuse and the application in this respect is proved.
MS CHILTON having this day been found by the Federal Magistrates Court of Australia at Sydney to have contravened without reasonable excuse an order made by this court on the 28 November 2005,
21 December 2006 and 3 April 2007 is hereby ordered to enter into this bond pursuant to the provisions of s.70NFE 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 24 months be of good behaviour.
If there is to be any application for costs it must be made by way of written submissions, not exceeding 500 words, to be filed and served within 21 days.
Any submissions in response be filed and served within 21 days thereafter and not exceeding 500 words.
Any evidence as to the financial circumstances of the parties relating to any application or response for costs be provided to the court by way of sworn financial statements to be filed and served with the submissions.
IT IS NOTED that publication of this judgment under the pseudonym Chilton & Chilton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 3348 of 2005
| MR CHILTON |
Applicant
And
| MS CHILTON |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment relates to a series of alleged contraventions of a number of orders relating to [X], born in 1997. [X] is currently 11 years old and lives with his mother in [W]. [X]'s father is the applicant in these proceedings. He lives in Sydney and is 40 years old. [X]'s mother is 42 years old.
Background
[X]'s parents married in 1996 and separated in 1999. They had been living in [W] but, later in 1999, the father returned to Sydney. They divorced in 2003. In 2003, the mother gave birth to a step-brother to [X], [Y], who is now five years old.
The first orders relating to [X] were made by Ryan FM (as she then was) by consent on 28 November 2005. These orders provided for [X] to live with his mother and have contact with his father each alternate weekend from 6 pm Friday to 6 pm Sunday, together with special days and school holidays.
The first contravention application was filed by the father on 13 September 2006 and it alleges a number of contraventions commencing from 21 July 2006.
On 15 November 2006, Sexton FM made orders on an interim basis partially suspending the first orders, implementing supervised contact, and noting the mother's allegations that [X] had been exposed to visual, graphic violence and pornography.
In December 2006, the mother filed an application seeking to set aside the orders for [X] to spend time with his father and that there be no contact between [X] and his father.
On 21 December 2006, I made orders to the effect that [X] spend time with his father on Christmas Day, and each Saturday from 10 am to 3 pm, but on a supervised basis. On 2 February 2007, I varied these orders so that changeover took place at Centrecare Supervised Contact Centre at [C] and [W], but with [X]'s time again being supervised.
On 23 February 2007, the father filed his second contravention application alleging contraventions commencing from 25 December 2006.
The matter was listed for hearing on 2 April 2007, but did not proceed for various reasons that are not relevant in the present application.
On 3 April 2007, I made some variations to the order for [X] to have contact with his father to include overnight, provided it was supervised by the paternal grandparents.
On 24 May 2007, the father filed the third contravention application alleging contraventions commencing 3 March 2007.
The final and current orders relating to [X] were made by consent on 24 November 2008 and they provide, in effect, for [X] to spend time with his father on an unsupervised basis each alternate weekend, plus school holidays and special occasions. It should be noted that there is a strong similarity between the first consent orders of 28 November 2005 and the last consent orders of 24 November 2008. In between these orders, there has been a very high level of conflict between the parents and the Court has no doubt that it was a tumultuous period for [X].
Applicable Law
This contravention application is governed by Division 13A of Part VII Family Law Act 1975.
Section 70NAC sets out the meaning of contravened an order:
Meaning of contravened an order
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.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
Section 70NAE sets out the meaning of reasonable excuse for contravening an order:
Meaning of reasonable excuse for contravening an order
(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).
(2) A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(4) 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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(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).
(6) 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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The standard of proof is on the balance of probabilities, both as to whether a contravention has been established, and as to whether there is a reasonable excuse: s.70NAF. The Courts powers are set out in subdivisions C, D, E and F of Division 13A, depending on whether the contravention has been established or not, and whether or not a reasonable excuse is found, and whether the contravention is less or more serious (ss.70NCA – 70NFJ).
Present Contravention Proceedings
Thus, the present proceedings represent the hearing of the following contravention applications and allege the following contraventions:
FILING DATE OF CONTRAVENTION APPLICATION DATE OF ALLEGED CONTRAVENTION NATURE OF CONTRAVENTION 13 September 2006 21 July 2006 of orders made 28 November 2005 No contact 13 September 2006 18 August 2006 of orders made 28 November 2005 No contact 13 September 2006 1 September 2006 of orders made 28 November 2005 No contact 25 February 2007 25 December 2006 of orders made 21 December 2006 Ending contact prematurely and not allowing contact alone 25 February 2007 30 December 2006 of orders made 21 December 1006 Not allowing contact alone 24 May 2007 28 April 2007 of orders 3 April 2007 No contact 24 May 2007 5 May 2007 of orders 3 April 2007 No contact 24 May 2007 19 May 2007 of orders 3 April 2007 No contact
I record that the three contravention applications between them in fact alleged a total of 25 alleged contraventions. The pressure of time, and the lack of compliance by the respondent mother with directions made on 24 November 2008, made it necessary to curtail the evidence and focus on very specific breaches only.
The father was represented by his solicitor, and Counsel, Mr Hodgson. The respondent mother represented herself in these proceedings. Indeed, the respondent mother represented herself for most but not all of the proceedings before me. I found her to be an intelligent woman, quite capable of forcefully articulating her views, but at times prone to making emotional and irrelevant outbursts that, I suspect, were intended for the public sitting at the back of the Courtroom rather than anyone else present in the Courtroom.
The father's application was supported by affidavits from him filed 13 September 2006, 1 February 2007, 24 May 2007 and 19 March 2009. There was also an affidavit from the paternal grandmother, Ms C. Both witnesses gave evidence and were cross-examined by the respondent mother.
The mother was given the opportunity to make an application for an adjournment but she declined to do so, expressing the preference to try to conclude all matters once and for all on the day. The charges were formally put to her. Using the numbering that I have referred to above, she denied that she had contravened the orders without reasonable excuse in all matters. However, in relation to the first three allegations, she indicated that she would be conceding that the orders were not complied with, but that she had a reasonable excuse. The respondent mother conceded to the Court that she had been served with the contravention applications, was on notice of the orders in respect of which contraventions were alleged and acknowledged that the orders in question did require her to do certain things.
The Evidence
The applicant father gave evidence first and was cross-examined by the respondent mother. As a self-represented litigant, I am sure the mother was doing the best she could and I believe that the gravamen of her cross-examination was intended to establish that, at least in relation to the first three alleged contraventions, the father was aware of the mother's concerns that [X] was being exposed to violent and pornographic material whilst in the presence of the father and, therefore, this was a reasonable excuse for not complying with the orders of the 28th of November 2005. The father's evidence, however, was unequivocally that he had never viewed pornographic material in the presence of [X]. However, he did not dispute that [X] may well have said things to the mother that caused her concern.
The father was cross-examined about a music tape that had a cardboard cover which was decorated with a collage of pornographic images and which the mother asserted she found in the father's home. He agreed that the tape was his, but certainly not the cover. The exchange between the cross-examining mother and the applicant father seemed to suggest that this tape was found many years ago, though it is possible that the mother was referring to other pornographic material which, she asserted, she still had in her house.
The father was also cross-examined about threats he allegedly made, [X]'s exposure to a gun, and to M rated movies.
The cross-examination was incomplete and, at the end of the day, not very helpful to the Court. I do not accept on the evidence that [X] was exposed to pornographic material whilst in the presence of his father. I accept that it was possible that the father exposed [X] to M rated materials including, for example, the Harry Potter series of DVDs or videos. There is no evidence that would lead me to be concerned about [X]'s exposure to the guns.
The respondent mother also cross-examined the paternal grandmother. To call it cross-examination is putting this episode at its highest. It was, in reality, a shouting match between two women who obviously feel quite strongly about the circumstances relating to the events before the Court. The only matter that I conclude from the evidence is that the paternal grandmother is probably quite correct in asserting that the respondent mother did not stop yelling from the moment that she delivered [X] on Christmas Day 2006, for the purposes of supervised contact.
At the end of the evidence adduced on behalf of the applicant father, there was clearly a prima facie case to answer. Indeed, the cross-examination by the respondent mother made little inroads into the evidence of either the applicant father or his mother and, in particular, the mother failed to put her case to the father insofar as she asserted that her version of events was to be preferred.
The respondent mother was sworn in and I gave her the opportunity to give evidence-in-chief relevant to the matters before the Court. She gave evidence to the following effect, relating in each case to the specific dates that ground the alleged contraventions:
i)21 July 2006. [X] said to the mother that he had “had enough of the rude stuff and violence” and did not want to go to spend time with his father. [X] had told her this previously. [X] had also told the mother's neighbour, Ms A, about the violence and pornography but not in the mother's presence. The mother never decided not to let [X] go, it was [X] who made that decision, he being eight, turning nine, at the time.
ii)18 August 2006. [X] chose to go to soccer and to his soccer presentation.
iii)1 September 2006. [X] did not want to go and the mother was merely respecting [X]'s wishes. [X] also raised concerns about being exposed to a dog.
iv)25 December 2006. The mother agrees that she did not allow [X] to spend time with his father alone, supervised by the paternal grandparents. She agrees that she stayed there the whole time. The mother asserts that [X] did not want to go and that she had to force him to go. She says [X] said to her: "I'll only go if you stay with me the whole time.", and that's what she did apart from the period of 15 to 20 minutes when she was away, even though her own mother, i.e. the maternal grandmother, remained present.
v)30 December 2006. The mother was not present on this occasion because she was holidays at [B]. She agrees that her mother, i.e. the maternal grandmother, was present throughout the contact period. The mother asserts that [X] said to her: "I'll only go if either you or my grandmother comes." She asserts that [X] still had a fear of the father, though he did love his father.
vi)28 April 2007. The mother gave evidence that she was confused about what was to happen if the rain washed out the soccer game from which [X] was to be collected by his father. The game was cancelled on Saturday morning. [X] said: "I just want to stay home", so that's what he did.
vii)5 May 2007. [X] was sick this weekend. Rather than try to contact the father directly, the mother asked [X]'s soccer coach to contact the father. She cannot recall what [X] was sick with or for how long. She said that [X] would not miss out on soccer unless he were really sick.
viii)19 May 2007. The mother's recollection is poor. She recalled that the police did come out to interview [X] but she does not remember why. [X] was not at school when he was supposed to have been picked up by his father. She does not recall how [X] got home from school that day.
The mother was cross-examined by Counsel for the applicant father. As a general proposition, the respondent mother was argumentative and unresponsive to some of the questions asked. She did not form a favourable impression with me. The following points emerged from her cross-examination:
a)Contact did not take place on 21 July, 18 August or 1 September 2006 primarily because [X] said he did not want to go, but also because of what the mother was concerned about, i.e. that he was exposed to certain materials. Notwithstanding the mother's concerns, it was not the reason she gave to the father for [X] not attending. Indeed, in this context, the mother said words to the effect that "Soccer was more important".
b)When cross-examined about acceding to [X]'s wishes instead of complying with the Court orders, the mother said she would not necessarily insist on [X] going to bed, or brushing his teeth because he didn't want to do so. She said it would all depend on the circumstances and that she was not "authoritarian". She said that he was "crying and hysterical" about not wanting to go, but that is not how she described him in her evidence-in-chief.
c)She was directly cross-examined in relation to her willingness to abide with orders of the Court. It was put to her that, if there was a choice between compliance with the order of a stranger and doing what she, the mother, thought was best, she would always do what she wanted. The mother agreed with this. She agreed that this is in fact what happened on the weekends of 21 July, 18 August and 1 September 2006.
d)In cross-examination about contact on 25 December 2006, the mother gave evidence that she did not agree with Sexton's FM order for supervision by the paternal grandmother and that she, the mother, felt she knew what was best and that, ultimately, [X]'s will prevailed. She agreed that she never held any intention of leaving [X] with his father without her being present.
e)The mother agreed in cross-examination that, on 30 December 2006, she invited her mother, the maternal grandmother, to be present at contact as she was going to be away. She then said, however, that she asked her mother to get [X] there, but not for the mother to personally remain there. After this, she agreed that she did not tell her mother to leave after she had dropped [X] off.
f)In cross-examination, the mother agreed that contact did not occur on 28 April, 3 May and 19 May 2007. On 28 April 2007, the mother said soccer had been cancelled and [X] did not want to go. On 5 May 2007, [X] was sick but she could not recall what was wrong with him or if he missed school the day before contact was to occur. As for 19 May 2007, she could not recall why contact did not take place, but agrees that [X] was to be collected from school by his father that day.
Findings
Whenever the evidence of the father and the mother conflict, I prefer the evidence of the father. The mother's recollection of events was obviously poor at times. She was argumentative in cross-examination and was unresponsive to some of the questions asked. Specifically, I do not accept her evidence that:
·Firstly, she had a reasonable concern about [X] being exposed to violent or pornographic materials whilst in the father's presence, and that this was the reason why she denied contact between [X] and his father.
·That [X] was expressing to his mother that he did not want to have contact with his father such that the mother could not have encouraged or even prevailed on him to go.
·That [X] was sick on the weekend of 5 May 2007.
·That she did not know or recall why [X] was taken out of school on 19 May 2007 and did not know how or could recall how he got home that day.
I find that the mother's belief about [X] being exposed to violent or pornographic material whilst in the father's presence has no reasonable basis on the evidence before me. I accept the father's evidence that at no time has he exposed [X] to pornographic material whilst in the father's presence. I find the mother to have serious attitudinal problems about facilitating [X]'s time with his father and about compliance with orders of the Court.
I find that the respondent mother either intentionally failed to comply with an order or made no reasonable attempt to do so for the purposes of s.70NAC. Accordingly, she has contravened each of the orders as alleged by the applicant father. I find that there is no evidence on which the Court could be satisfied that the respondent mother ought to be excused in respect of any of the contraventions: s.70NAE(2), (4), (5) or (6).
The authorities make it quite clear that there was a clear obligation cast on the mother to take reasonable steps to deliver the child in accordance with the order: Stavros & Stavros (1984) FLC 91-562. The orders created positive obligations on her, requiring a genuine commitment to compliance, which is inconsistent with allowing the child to make his own decision about whether or not to have contact with his father: O'Brien & O'Brien (1993) FLC 92-396. The respondent mother cannot claim that she sincerely believes that the order was contrary to the welfare of [X] as a reasonable excuse for contravening the order: Gaunt & Gaunt (1978) FLC 90-468.
Imposition of Penalty
Counsel for the applicant father submitted on behalf of the father that the father's only interest in these proceedings was to secure future compliance with the orders. He emphasised that he was not interested in punishing the mother. Counsel suggested that requiring the mother to enter into a recognisance to be of good behaviour and to comply with orders, with or without security or surety, was appropriate. He submitted it was too late to have compensatory contact, particularly in view of the most recent orders made in relation to [X].
I record my surprise, and the Court's appreciation to the father, for his gracious approach to these contravention proceedings. For my own part, without his submissions, I would have treated this case as governed by sub-division (f) of Division 13A, of Part VII of the Family Law Act ie as a contravention without reasonable excuse - more serious contravention. I would have been quite satisfied that the evidence met with the requirements of s.70NFA(2)(b) ie that the mother has behaved in a way that showed a serious disregard of her obligations under the orders. I would have seriously contemplated a sentence of imprisonment suspended on the condition of compliance with the orders. I have found the evidence of the mother's behaviour and attitude about compliance with the orders of the Court quite disturbing. The fact that she openly acknowledged a disdain for Court orders about her son speaks volumes about her attitudes towards her responsibilities of parenthood, and her willingness to facilitate and encourage a close and continuing relationship between [X] and his father. The fact that she entered into Consent Orders as recently as 24 November 2008 which provide for [X] to have unsupervised time with his father each alternate weekend, is very difficult indeed to reconcile with her evidence in these proceedings about concerns relating to [X]'s welfare with his father. The respondent mother needs to understand that it is only the graciousness of the applicant father that has avoided the order to which I have referred. She needs to be especially vigilant about punctilious compliance with orders in the future, as my present findings and Judgment may be considered in future proceedings for contravention. One hopes the situation will never arise again.
Conclusion
I find all of the allegations established without reasonable excuse. In view of the submissions of the applicant father, I am prepared to treat this matter under sub-division (e), i.e. a less serious contravention. I order the mother to enter into a bond under s.70NEC of the Act for a period of two years without surety or security and on the condition that the mother be of good behaviour and comply with all orders made under the Family Law Act relating to [X].
If there is to be a costs application arising out of these proceedings, it is to proceed on the basis of written submissions. The applicant for costs should file and serve written submissions within 21 days. The party opposing an order for costs should file and serve written submissions within 21 days thereafter. Submissions must not exceed 500 words. If either party relies on their financial circumstances as a matter relevant to a costs order, that party must file and serve a sworn financial statement in support of their submission. I make it very clear to the parties that I will regard failure to file and serve a financial statement as an acknowledgment that their financial circumstances is not a matter relevant to the costs applicant - in other words, I will infer that they do have the capacity to meet an order for costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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