Cleary and Ngok
[2012] FamCA 850
•8 October 2012
FAMILY COURT OF AUSTRALIA
| CLEARY & NGOK | [2012] FamCA 850 |
CONTRAVENTION – applications by the father alleging two counts of contravention of parenting orders by the mother – where the mother denies the contraventions – whether the mother has intentionally failed or made no reasonable attempt to comply with parenting orders – where the father has failed to establish either counts of contravention on the balance of probabilities – where the Court held that the mother had a reasonable excuse in relation to one of the contraventions in any event – father’s applications dismissed.
Family Law Act 1975 (Cth) ss 65N, 65NA, 70NAC, 70NAD, 70NAE & 70NAF
| APPLICANT: | Mr Cleary |
| RESPONDENT: | Ms Ngoc |
| FILE NUMBER: | ADC | 5849 | of | 2007 |
| DATE DELIVERED: | 8 October 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 14 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Subramaniam |
| SOLICITOR FOR THE RESPONDENT: | Priya Subramaniam |
Orders
The Contravention Applications filed by the father on 24 April 2012 are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cleary & Ngoc has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 5849 of 2007
| Mr Cleary |
Applicant
And
| Ms Ngok |
Respondent
REASONS FOR JUDGMENT
Introduction
By two separate applications both filed on 24 April 2012, the father Mr Cleary alleges that the mother Ms Ngok contravened the Orders of the 31 August 2010 and 22 December 2010 on dates in April 2012. Full particulars of the alleged contraventions are set out hereafter. The mother denied any contraventions.
The Hearing
At the hearing before me on the 14 August 2012 the father was unrepresented. The mother was represented by Ms Subramaniam.
The hearing commenced with the mother being sworn. When each of the contraventions was put to the mother, she denied contravening the Orders.
The father was then sworn. For the purposes of the contraventions he relied on the affidavits filed on 24 April 2012 (documents 99 and 101). The father gave further brief evidence-in-chief. He was then cross-examined by counsel for the mother. He gave brief further evidence by way of re-examination.
The mother then gave evidence-in-chief and was cross-examined by the father.
The mother also relied upon her affidavit filed on 13 August 2012 specifically in relation to the alleged contraventions.
After hearing final submissions by both the counsel for the mother and the unrepresented father, judgment was reserved.
Relevant Background
The Orders of 31 August 2010 were made by Federal Magistrate Simpson, following a hearing in the Federal Magistrates Court which commenced in April 2009 and concluded with written submissions in December 2009. Both parties were represented at that trial.
The Orders of 31 August 2010 provided:
“(1)The father and mother shall have equal shared parental responsibility in relation to the child [M] born …2006.
(2)The child shall live with the father as follows:
(a)Until the child commences school:
(i) In week one from 8.30 am Tuesday until 5.45 pm Wednesday, and from 8.30 am Friday until 5.00 pm Saturday; and,
(ii) In week two from 8.30 am Wednesday until 5.45 pm Thursday.
(b)Upon the child commencing school:
(i) During school terms, on an alternating weekly basis:
A.In week one from before school (or 8.30 am if not a school day) on Monday to before school on Wednesday (or 8.30 am if not a school day) and from after school (or 5.00 pm if not a school day) on Friday to 5.00 pm on Sunday; and,
B.In week two from before school (or 8.30 am if not a school day) on Wednesday to before school (or 8.30 am if not a school day) on Friday.
(ii) The cycle of living arrangements referred to in subparagraph (i) hereof shall also apply to the school holiday periods at the end of terms one and two of the 2011 academic year;
(iii) Subject to subparagraph (ii) hereof, during short school holidays the child shall live with the father for one half of the time thereof (i.e. eight days which may or may not be consecutive days as the parties may agree) at times and days to be agreed and in the absence of agreement with the father for the last eight consecutive days of the short school holiday period at the end of term three of the 2011 academic year, then the first eight consecutive days of the next short school holiday period and thereafter, on an alternate short school holiday period basis;
(iv) In the 2011/2012 Christmas school holidays the child shall live with the parties on days and times to be agreed but in the absence of agreement on a week about basis with the cycle commencing with the child living with the father for the first week of the said holidays;
(v) In the 2012/2013 Christmas school holidays and each alternate year thereafter from after school on the first Friday of the school holidays (being the last day of school for the year) until 5.00 pm on the third Friday and from 5.00 pm on the sixth Friday until 5.00 pm on the seventh Friday;
(vi) In the 2013/2014 Christmas school holidays and each alternate year thereafter from 5.00 pm on the third Friday until 5.00 pm on the fifth Friday and from 5.00 pm on the sixth Friday to before school on the first day of school for term one; and,
(vii) Notwithstanding subparagraphs (i) to (vi) hereof, when the child reaches the age of six the father be permitted to elect to have the child live with him for one half of Christmas school holiday periods which includes consecutive days, to not exceed 21, in number and to undertake international travel with the child during those consecutive days, save that the father is not permitted to so elect for such living arrangements in consecutive Christmas school holiday periods unless the mother consents.
(c) At such other times as the parties may agree.
(3)At all other times the child shall live with the mother.
(4)Notwithstanding the arrangements provided for in paragraphs 2 and 3 aforesaid the child shall spend time in the parties care on special occasions as follows:
(a) At Christmas:
(i) With the mother from 12.00 noon on 24 December 2010 until 3.00 pm on 25 December 2010 and between the same times each alternate year thereafter, and between 3.00 pm on 25 December until 5.00 pm on 26 December in the intervening years; and,
(ii) With the father from 3.00 pm on 25 December 2010 until 3.00 pm on 26 December 2010 and between the same times each alternate year thereafter, and between 12.00 noon on 24 December until 3.00 pm on 25 December in the intervening years.
(b)With the father on Father’s Day from 5.00 pm on the Saturday immediately preceding Father’s Day until 7.00 pm on Father’s Day Sunday;
(c)With the mother on Mother’s Day from 5.00 pm on the Saturday immediately preceding Mother’s Day until 7.00 pm on Mother’s Day Sunday;
(d)At Easter:
(i) With the mother from 5.00 pm Holy Thursday until 5.00 pm Easter Saturday in 2011 and between the same times in each alternate year thereafter and between 5.00 pm Easter Saturday until 5.00 pm Easter Monday in the intervening years; and,
(ii) With the father from 5.00 pm Easter Saturday until 5.00 pm Easter Monday in 2011 and between the same times in each alternate year thereafter and between 5.00 pm Holy Thursday until 5.00 pm Easter Saturday in the intervening years.
(e)On the child’s birthday with the parent who does not otherwise have the primary care of the child on that day:
(i) Until the child is of school age for a period of four hours at times to be agreed between the parties;
(ii) Upon the child being of school age:
A.In the event same falls on a school day then from 3.30 pm until 5.30 pm; and,
B.In the event same falls on a non-school day including a weekend or school holidays or on the Easter long weekend then for a period of four hours at times to be agreed between the parties.
(f)On the mother’s birthday each year in September with the mother:
(i) Until the child is of school age for a period of four hours at times to be agreed between the parties;
(ii) Upon the child being of school age:
A.In the event same falls on a school day then from 3.30 pm until 5.30 pm; and,
B.In the event same falls on a non-school day including a weekend or school holidays then for a period of four hours at times to be agreed between the parties.
(g)On the father’s birthday each year in October with the father:
(i) Until the child is of school age for a period of four hours at times to be agreed between the parties;
(ii) Upon the child being of school age:
A.In the event same falls on a school day then from 3.30 pm until 5.30 pm; and,
B.In the event same falls on a non-school day including a weekend or school holidays then for a period of four hours at times to be agreed between the parties.
(h)For the [Asian Country] New Year celebrations with the mother and upon the mother providing the father with twenty-eight days prior written notice as to the dates:
(i) Until the child is of school age:
A.In the event the [Asian Country] New Year’s Eve falls on a Monday, Tuesday, Wednesday or Thursday then from 4.00 pm New Year’s Eve until 10.00 am New Year’s Day;
B.In the event the [Asian Country] New Year’s Eve falls on a Friday then from 4.00 pm Friday until 5.00 pm Saturday; and,
C.In the event the [Asian Country] New Year’s Eve falls on a Saturday then from 10.00 am Saturday until 5.00 pm Sunday.
(ii) Upon the child being of school age:
A.In the event the [Asian Country] New Year’s Eve falls on a Monday, Tuesday, Wednesday or Thursday then from the conclusion of school New Year’s Eve until the commencement of school New Year’s Day;
B.In the event the[Asian Country] New Year’s Eve falls on a Friday then from the conclusion of school Friday until 5.00 pm Saturday; and,
C.In the event the [Asian Country] New Year’s Eve falls on a Saturday then from 10.00 am Saturday until 5.00 pm Sunday.
(i) With the mother to celebrate the Full Moon Festival from 12.00 noon on the day of the Full Moon Festival until 10.00 am on the following day with the mother to provide the father with twenty-eight days prior written notice as to those dates.
(5)All handovers be effected as follows:
(i) The father collecting the child from the mother’s home at the commencement of the time when the child is to be in his care; and,
(ii) The mother collecting the child from the father’s home at the commencement of time with the child is to be in her care;
save that when the child is of school age and in such a case where the commencement or conclusion of time coincides with the commencement or conclusion of the school day, then handover shall occur at the school.
(6)Each parent shall notify the other within 24 hours of any change of address and otherwise keep the other parent notified at all times of their residential address, telephone and email details.
(7)Each party’s communication with the other party by telephone, sms text message or email be limited to emergency situations involving the child and occasions where one party may be delayed at attending handover.
(8)The parties do use and exchange at handovers a communication book relating to all issues concerning the care welfare and development of the child.
(9)In the event that the father expects to be unable to care for the child at a time that, pursuant to these Orders, he would be required to be caring for the child for a period exceeding 24 hours, he shall, so far as it is reasonably possible send an sms text to the mother giving her no less than three (3) days prior notice of his expected unavailability and shall provide her with first option to care for the child in his place.
(10)The child shall be enrolled and shall attend [U Primary School] from the beginning of Term One in the 2011 school year and each of the parties shall forthwith do all such acts as are necessary for this order to be complied with.
(11)Each parent shall forthwith notify the other in the event of a medical emergency involving the child or the child’s admission to hospital and shall provide to the other the name and contact details of the medical practitioner attending the child.
(12)The parties do each forthwith enrol, participate and complete a post separation parenting programme undertaken by Anglicare described as “KidsAreFirst”.
(13)In the event that the parties are unable to reach agreement about any parenting issue they shall seek mediation at a community based family dispute resolution service.
(14)The parties be restrained and an injunction is hereby granted restraining each of them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person so to do.
(15)Each party be restrained and an injunction is hereby granted restraining each of them from removing the child from the Commonwealth of Australia without the prior written consent of the other party or further Order of this Court.
(16)The parties shall maintain the child’s name of (sic) the Airport Watch List.
(17)All earlier parenting Orders are dismissed.
(18)All extant applications are dismissed.”
The proceedings in the Federal Magistrates Court in relation to the child M commenced in 2007. There have been numerous applications since including earlier applications alleging contraventions of Orders.
On 15 December 2010, Federal Magistrate Simpson made an order which amended paragraph 10 of the Orders of 31 August 2010, by deleting the words “term one” and inserted the words “term two”. That order also dismissed paragraph 18 of the Orders of 31 August 2010.
On 20 December 2010, Federal Magistrate Simpson made orders which dismissed the contravention application filed on 13 August 2010 by the father on the basis that the mother had a reasonable excuse for contravening the Order.
On 22 December 2010 Federal Magistrate Simpson made the following Orders:
“THE COURT ORDERS THAT:
1.The father be permitted to have telephone contact with the child [M] born… 2006 each alternate Friday at 7pm and on Sunday in the intervening week at 10am commencing on 31 December 2010 with the father to initiate the telephone call by ringing the mother’s mobile telephone number with the telephone calls to be limited to 15 minutes.
THE COURT FURTHER ORDERS THAT:
2.All extant applications be dismissed.
3.All questions of costs are reserved to the adjourned date.
4.The father’s costs of the Application are reserved.
5.Further consideration of the matter is adjourned to 9.30 am on 18 April 2011 before FM Simpson for submissions on all costs issues with one and a half hours allowed.
6.Solicitors for the respondent shall forthwith advise the Associate to FM Simpson on 1300 352 000 on becoming aware that the matter has settled or for any other reason that the interim argument will not be proceeding to full hearing on the day allowed.
7.The parties file and serve an affidavit of no more than four (4) pages providing details of the costs orders that they seek which is to be filed and served by 10 April 2011.
8.The parties file and serve financial statements on or before 10 April 2011.
UNTIL FURTHER ORDER THE COURT ORDERS THAT:
9.There be an injunction that the respondent mother be restrained from taking the said child to the home of [I Street, Suburb J] and from bringing or allowing the child to be in the presence of the person called [Mr N] who currently resides at the said address.”
Following a further Initiating Application filed by the mother, Federal Magistrate Simpson made orders on 8 April 2011 which included the appointment of an Independent Children’s Lawyer for M and an order transferring the matter to the Family Court of Australia for consideration and inclusion in the Magellan list.
Subsequently the matter was before His Honour Justice Burr, as he then was, when he made further procedural and interim orders. Thereafter further directions have been made in an attempt to list the matter for final hearing. The matter is now listed for final hearing before Justice Macmillan commencing on 22 October 2012.
The mother was born in Asia. She immigrated to Australia when she was a young child. The father was born in Europe. He came to Australia in 2006. The parties commenced a relationship in late 2002 when the father was living in Ireland and the mother was living in England. M, the child of the parties’ relationship, was born in 2006. The history of the parties’ relationship is set out in detail in the judgment of Federal Magistrate Simpson of 31 August 2010.
One of the applications alleging contraventions filed by the father on 24 April 2012 alleges that the mother “without reasonable excuse refused to allow the child [M] born …2006 spend time with the applicant father”. It is alleged that that was in breach of Order “4.e (ii) B. of 31 August 2010” and that the alleged breach occurred on 16 April 2012 at 3.30 pm, the place being T Street, Suburb G.
Similarly, in that application it is alleged:
“The mother refused to allow the child spend time on his birthday as ordered by the Federal Magistrates Court on 10/8/2010.
…At 2:21 I received a text message from the mother saying he would not be made available, and gave no reason.”
This alleged contravention also took place on 16 April 2012 at “3.30 pm and again at 6.50 pm the place being [T Street, Suburb G].” This is alleged again to be in contravention of paragraph (4)(e)(ii)B. of the Order of 31 August 2010.
As set out above paragraph 4(e)(ii)B. of the Order of 31 August 2010 provided that:
“(4)…the child shall spend time in the parties care on special occasions as follows:
(e)On the child’s birthday with the parent who does not otherwise have the primary care of the child on that day:
…
(ii)Upon the child being of school age:
…
B. In the event same falls on a non-school day including a weekend or school holidays or on the Easter long weekend then for a period of four hours at times to be agreed between the parties.”
The second contravention application which was filed on 24 April 2012 (document 100) alleges that on 20 April 2012 at 7.00 pm:
“The respondent without reasonable excuse refused to allow the child [M] …2006 to talk to the applicant by telephone as ordered by the Court.”
It is alleged that this was in breach of paragraph 1 of the Orders of 22 December 2010. Further there is similar, if not exactly the same, allegations made in the second page of Part D of that application . They appear to relate to the same facts, same time and same alleged breach.
As set out above paragraph 1 of the Order of Federal Magistrate Simpson made on 22 December 2010 is:
“1.The father be permitted to have telephone contact with the child [M] born …2006 each alternate Friday at 7pm and on Sunday in the intervening week at 10am commencing on 31 December 2010 with the father to initiate the telephone call by ringing the mother’s mobile telephone number with the telephone calls to be limited to 15 minutes.”
The Law
The most relevant sections of the Family Law Act 1975 (Cth) (“the Act”) are as follows:
Section 65N
General obligations created by parenting order that deals with whom a child spends time with
(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2)A person must not:
(a)hinder or prevent a person and the child from spending time together in accordance with the order; or
(b)interfere with a person and the child benefiting from spending time with each other under the order.
Section 65NA
General obligations created by parenting order that deals with whom a child communicates with
(1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.
(2)A person must not:
(a)hinder or prevent a person and the child from communicating with each other in accordance with the order; or
(b)interfere with the communication that a person and the child are supposed to have with each other under the order.
Division 13A is part of Part VII of the Act which deals with children’s issues. Division 13A specifically deals with the consequences of failure to comply with orders and other obligations that affect children.
Section 70NAC provides:
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 70NAD provides:
Requirements taken to be included in certain orders
For the purposes of this Division:
(a)a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
(b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and
(c)a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and
(d)a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.
Section 70NAE provides:
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.
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(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).
Section 70NAF provides:
Standard of proof
(1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3)The court may only make an order under:
(aa) paragraph 70NEB(1)(da); or
(ab) paragraph 70NECA(3)(a); or
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.
Other significant sections of the Act set out the orders that the Court must make or must consider depending upon whether the contravention has been established and whether it was with or without reasonable excuse.
The provisions of the Act also require the Court to consider whether the person who is alleged to have committed the contravention has done so in a manner which shows serious disregard for their obligations under the primary order.
I indicated to the parties that I will deliver my findings in relation to each of the contraventions and then seek their submissions as to the orders which should be made.
Summary of Evidence
The first contravention filed on 24 April 2012 (document 98) alleges that the mother contravened paragraph (4)(e)(ii)B. of the Order of 31 August 2010 on the 16 April 2012 at 3.30 pm and at 6.50 pm in that the mother “without reasonable excuse refused to allow the child [M] born ... spend time with the applicant father”.
The second contravention in that document also alleges that the mother had breached the same Order at 3.30 pm and again at 6.50 pm on 16 April 2012:
“Statement of Alleged Contravention the mother refused to allow the child to spend time on his birthday as ordered by the Federal Magistrates Court on 10/8/2010.
It continues:
“At 2:21 I received a text message from the mother saying he would not be made available, and gave no reason.”
The 16 April 2012 was a Monday in the middle of the school holidays between Term 1 and Term 2 in South Australia.
The affidavit of the father filed in support of that contravention on the same date says that the father informed the mother that he “would be collecting [M] at 3.30 pm on 16th, by way of text.”
He further alleges in the affidavit that he also “informed the mother verbally on the morning of the 16th, she agreed.” Paragraph 5 of the affidavit (document 99).
The father then later in the same affidavit refers to the text he says he received from the mother on 16 April 2012 at 2.21 pm. He asserts that the message was as follows:
“[Mr Cleary], I heard you. I have done my best. Please be advised that we will not be at home at 3:30pm nor at 5pm. [M] also looked tired this morning and his nose blocked n running. His Mummy.”
The affidavit then refers to further attempts made by the father, including his attendance at the mother’s home when M was not present that day.
The affidavit further sets out the particulars of the police arriving at the maternal grandmother’s house where the mother was spoken to by the police. Further attempts were made by the father to spend time with M that day, but he was unsuccessful.
During his oral evidence the father said that he considered the arrangements that day had been agreed.
He gave evidence that the parties had also discussed and he had agreed to an arrangement that as M was residing with him, M was to be collected by the mother on the morning of his birthday. His evidence was that he assumed he was going to be able to see M at 3.00 pm otherwise he would not have agreed to return M to the mother’s care that morning.
During the cross-examination of the father by counsel for the mother, questions were put to him to challenge his assertion that an agreement had been reached about the time he would spend with M that day.
When the mother gave evidence she denied that an agreement had been reached. She conceded that she had heard what the father had asked and had simply replied “I hear you”.
In the mother’s evidence she confirmed the evidence in her affidavit M had spent the week before his birthday in the father’s care. The mother had already made arrangements with the father that M could remain in his care until 3.00 pm on his birthday. The mother was then told by the father in the exchange of communications on 15 April 2012 that she could either collect M early or the father would place M in child care on his birthday. As a result the mother made arrangements to collect M at 8.00 am on his birthday.
The mother’s evidence was that later that afternoon the police came to her parents’ house. It was later in the afternoon that she offered the father approximately two hours with M. No agreement was reached at that time because the father insisted on at least four hours. The mother indicated that she did not agree to four hours at that time because it was very late and M was not feeling well.
The father’s evidence in his application and supporting affidavit referred to his attempts to speak to M at 7.00 pm on 20 April 2012. The 20 April 2012 was a Friday. I accept the evidence of the father that at about 7.00 pm on 20 April 2012 he telephoned the mother’s mobile telephone number, but it was not answered.
During cross-examination by counsel for the mother, the father agreed that it was not necessary for him to telephone on the Fridays (being every second Friday) that M is spending time with him.
When asked whether he had telephoned M on the evening of 19 April 2012, the father said that he could not recall, but then said “Yes”. He denied that there had been any agreement to “swap” the times from Friday to Thursday.
The father submitted that his telephone call to M on Thursday 19 April 2012 was irrelevant and that he was entitled to speak to him on the Friday.
Counsel for the mother submitted the mother had made the assumption that the father had made his telephone call for that week on the Thursday and therefore she assumed that he would not be expecting to speak to M on the Friday.
Counsel submitted that if the mother had contravened the order then she had reasonable excuse.
Findings and Discussion
The wording of the orders in relation to M’s birthday provide that:
“(e)On the child’s birthday with the parent who does not otherwise have the primary care of the child on that day:
(i)Until the child is of school age for a period of four hours at times to be agreed between the parties;
(ii)Upon the child being of school age:
A.In the event same falls on a school day then from 3.30 pm until 5.30 pm; and,
B.In the event same falls on a non-school day including a weekend or school holidays or on the Easter long weekend then for a period of four hours at times to be agreed between the parties.”
The evidence indicates that M was in the care of the father until 8.00 am on his birthday which was a school holiday day. There was an exchange of communications between the parents with the father seeking to have four hours with M, after M had been returned to the care of the mother on his birthday.
On the father’s own evidence there is considerable conflict about the alleged agreement which was reached for him to spend more time with M on his birthday after the mother had agreed to collect him at 8.00 am rather than M go to child care that day.The order provides that the time which M spends with the father was to be “at times to be agreed between the parties”. M remained in the care of the father until 8.00 am that day by agreement with the mother.
The evidence of the parties about attempts to reach an agreement was in conflict with the other’s evidence. On the balance of probabilities I am not satisfied that the mother intentionally failed to comply with the order or made no reasonable attempt to comply with the order.
The father has failed to establish on the balance of probabilities that he had an agreement with the mother for time after 8.00 am. I am not satisfied therefore that the father has proved the contravention.
The evidence indicates that on 20 April 2012 at approximately 7.00 pm the father telephoned the mother’s mobile telephone number but she did not answer. The father did therefore not have telephone contact with M at that time or at any other time on that day.
The provisions of section 65NA place an obligation upon the parent to not hinder or prevent the other parent and the child from communicating with each other in accordance with the order.
Section 70NAC provides that:
“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; …”
The question remains whether the mother has, in this case, intentionally failed to comply with the order or made no reasonable attempt to comply with the order on 20 April 2012.
The mother’s explanation for not allowing the child to speak to the father by telephone on the Friday evening was that she assumed that the father would not be calling that Friday and that she had assumed that she was not required to permit the communication on the Friday evening because the father had spoken to the child on the Thursday evening. She said that this was based upon the change to arrangements which she thought had been put in place.
It is clear that the father telephoned the mother’s mobile telephone on that Friday evening. The father however is required to establish on the balance of probabilities that the mother intentionally failed to comply with the order or he must establish on the balance of probabilities that the mother made no reasonable attempt to comply with the order.
The father has not been able to establish (as it would in any case be very difficult for him to do so) that the mother intentionally failed to comply with the order on the evening of Friday 20 April 2012. Nor has he established on the balance of probabilities that the mother made no reasonable attempt to comply with the order.
Even if these difficult tasks were established on the balance of probabilities, the evidence of the mother, which is accepted, is that she did not at the time of the evening of Friday 20 April 2012, understand that she had an obligation on that evening to assist the father communicating with the child M by telephone. She has established the reasonable excuse on the basis that she assumed that the father had changed the times from Friday to the previous day (Thursday) and she assumed that therefore she did not have to comply with the order for another telephone call on the Friday.
In the circumstances of this matter the Court is satisfied that the mother ought to be excused in respect of that contravention, if it were established.
For the above reasons therefore all of the contravention applications are dismissed.
As previously indicated I will hear the submissions of both parties as to any consequent orders.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 8 October 2012.
Associate:
Date: 8 October 2012
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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