Clancy & Alcott
[2021] FamCA 380
•31 May 2021
FAMILY COURT OF AUSTRALIA
Clancy & Alcott [2021] FamCA 380
File number(s): SYC 4960 of 2014 Judgment of: ALTOBELLI J Date of judgment: 31 May 2021 Catchwords: FAMILY LAW – CONTRAVENTION – where Applicant alleged that the Respondent failed to comply with parenting orders made by consent – Finding that parties agreed to try a new arrangement subsequent to consent orders – Finding that Applicant acquiesced to new arrangement – Contravention Application dismissed. Legislation: Family Law Act 1975 (Cth) s 70NBA
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Cases cited: State Central Authority & Handbury [2019] FamCA 668 Number of paragraphs: 10 Date of last submission/s: 31 May 2021 Date of hearing: 31 May 2021 Place: Sydney The Applicant: In Person Counsel for the Respondent: Ms Shea Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
SYC 4960 of 2014 BETWEEN: MR CLANCY
Applicant
AND: MS ALCOTT
Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
31 MAY 2021
THE COURT ORDERS THAT:
1.The contravention application filed on 29 December 2020 be dismissed.
2.Compliance with the Family Law Rules 2004 be dispensed with.
3.The matter be adjourned to 28 June 2021 at 4pm for Mention to enable the father to obtain legal advice in relation to his appeal rights and to consider each parent’s proposal for an order varying the father’s time with the child, X born … 2013 (‘child’), pursuant to s 70NBA of the Family Law Act 1975 (‘Act’).
4.The application pursuant to s 70NBA of the Act proceed by way of minutes of order, to be exchanged by the parties and provided to Chambers by way of email at ..., no less than 7 days prior to the adjourned date.
IT IS NOTED THAT:
A.The child will continue to spend time with the Applicant father at the D Contact Centre in accordance with the orders made on 14 September 2020.
B.The mother intends to make a costs application having been informed by the Court that the usual practice is for such an application to be made at the conclusion of the matter after having dealt with the application pursuant to s 70NBA of the Act.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clancy & Alcott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
In this matter I provide the following ex tempore reasons for judgment. This case is about a child, X, who was born in 2013. X is eight years old. The Contravention Application was filed by her father on 29 December 2020, and it is supported by his Affidavit that was filed on 29 December 2020. The contravention arises out of consent orders that were entered into between the parents on 14 September 2020. An application was made by counsel for the Respondent mother after the close of the Applicant father’s case that there was no case to answer - that is, that no prima facie case had been established.
The Contravention Application alleges that the Respondent mother did not comply with a number of orders made by consent on 14 September 2020, specifically orders 3(a), 4 and 5. In general terms, order 3(a) is the order for the father to spend time with X. Order 4 sets out a number of prerequisites for the time to take place, and order 5 contains a number of consequential orders. For all practical purposes, I accept that the only way in which these orders can be interpreted is that order 4(a) and (b) contained a number of prerequisites before order 3, the spends-time-with order, could actually come into effect.
Specifically, orders 4(a) and 4(b) provided:
That for the purposes of facilitating X spending time with the father pursuant to orders 3(a) and 3(b), both parents shall:
a)No later than seven (7) days from the date of the making of the orders, arrange an appointment with the management of B Contact Centre for assessment for suitability of supervised time;
b) Attend such assessment as directed by the management of B Contact Centre;
These are the key provisions in the context of this Contravention Application. The father gave evidence and he was cross-examined by counsel for the mother. As a result of the father’s evidence, a number of findings can be made, and a number of conclusions can be reached as a result of the findings. I find, for example, based on the father’s own evidence (not just his oral evidence, nor just his affidavit evidence, but also the annexures to his Affidavit) that the mother did, in fact, comply with order 4(a) strictly in accordance with the orders. That is to say, no later than seven days from the making of the orders, she did arrange an appointment with the management of B Contact Centre for assessment for suitability of supervised time.
There was then further communication between the parties (not directly because that would have been in breach of other orders, but through B Contact Centre), as a result of which I am satisfied that the parents agreed to, in effect, use the services of C Contact Centre (another supervised contact service). That was seemingly on the basis that that service was a better fit for X who, according to the evidence of the father unchallenged by the mother, has some special needs. In those circumstances, the question arose not just whether there was a prima facie case (as it appears that the mother did comply with the order) but also, and perhaps in the alternative, whether the father had acquiesced to a variation of the orders so that chosen service was no longer B Contact Centre but the organisation known as C Contact Centre. Counsel for the mother submitted that he had.
The evidence from the father was quite clear that he had, in fact, agreed to try C Contact Centre as an alternative to B Contact Centre. I accept his evidence and it is abundantly clear to me that he did this because he simply wanted to resume spending time with his daughter. It is quite possible that he did not give much thought to the legal implications of what he was doing. However, from the legal perspective, he has technically acquiesced to a change in the orders such that it would be extremely unfair for him to now bring contravention proceedings based on the agreement that existed before.
I adjourned briefly so that I could have a very quick look at whether there was case law that dealt with the issue of what is acquiescence in a case like this. In the very limited time I had available, I could not find anything in the context of contravention cases but there is an abundance of case law interpreting what acquiescence is, for example, in cases involving the Hague Convention: see, eg, Family Law (Child Abduction Convention) Regulations 1986 (Cth). The common understanding or interpretation of what it means to acquiesce is to accept something without protest. That is a fair summation of the evidence that I heard in terms of what the father himself did.
In terms of acquiescence, the evidence satisfies me that whether the test is an objective one or a subjective one, the result is the same, that is, I am satisfied the father did acquiesce to a change of the orders. For completeness, an objective test is my interpretation of what is reasonable having regard to the evidence. A subjective test is what the father himself appeared to have agreed to, and I think that he did. I am satisfied that the acquiescence was real. It was unequivocal. There was no ambiguity about it: see, eg, State Central Authority & Handbury [2019] FamCA 668 at [238]-[244]. Therefore, it means that his acceptance of C Contact Centre makes it fundamentally inconsistent to now say that the mother did not comply with orders that required her to do certain things with B Contact Centre.
Accordingly, in the circumstances of this case, I accept the submission made on the mother’s behalf that there is no prima facie case. I had given consideration as to whether the issue in question in fact went to reasonable excuse. Given that it is the father’s evidence though, I am satisfied that the application can safely be brought to an end at this particular juncture by finding that the evidence establishes that there is no prima facie case for the Respondent mother to answer.
I therefore dismiss the father’s Contravention Application filed on 29 December 2020, but on the basis of what I foreshadowed before taking the adjournment to consider these reasons. That is, that the Court would consider of its own motion, were it not for the fact that the mother had her own proposal, whether these orders should be varied under the provisions of s 70NBA of the Family Law Act 1975 (Cth).
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 31 May 2021