Cliff and Kahmann

[2019] FamCA 572

FAMILY COURT OF AUSTRALIA

CLIFF & KAHMANN [2019] FamCA 572

FAMILY LAW – CONTRAVENTION – where the mother is found to have contravened final consent orders a without reasonable excuse – orders made for the mother to enter into a bond – mother to pay a contribution to the father’s costs.

Family Law Act 1975 (Cth) ss 70NEA, 70NEB, 70NEC

APPLICANT: Mr Cliff

RESPONDENT: Ms Kahmann

FILE NUMBER: SYC 1323 of 2015

DATE DELIVERED: 26 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 26 September 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Burridge & Legg Solicitors

SOLICITOR FOR THE RESPONDENT: LN Legal

Orders

1. Ms Kahmann (“the mother”) has, without reasonable excuse, failed to comply with the Order 4(c) of this Court, made 31 August 2018, on 22 April 2019 and 4 May 2019.

2. Pursuant to s 70NEB Family Law Act 1975, the mother shall attend upon a Registrar of this Court for the purpose of entering into a bond, without surety or security, on the following terms and conditions:

   (a)To be of good behaviour and comply with Order 4(c) made by this Court on 31 August 2018 and today; and

   (b)That the mother shall meet with a Family Consultant at a time nominated by the family dispute section of Family Court of Australia Sydney, for the mother to obtain the benefit of advice of the Family Consultant of the importance of, in particular in the child’s best interest, of complying with the Courts Orders.

3. The mother shall pay to Mr Cliff (“the father”), as a contribution towards his legal costs (awarded pursuant to s117 and s70NEB (1)(f) of the Family Law Act 1975) the sum of $3,300, on the following basis:

   (a)If the mother continues to comply with Orders of the Court for a period of two (2) years then the Order for costs shall be reduced to $1000 and be payable within three (3) months of that date;

   (b)If the mother fails to comply with the Orders of the Court as may apply from time to time and the Court so finds, then the costs of $3330 shall be payable within 60 days of the non-compliance by the mother.

4. The current Orders made 31 August 2018 shall recommence with the following variations:

   (a)The child shall spend time with the father from 9am Saturday 5 October 2019 until 9am Saturdays 12 October 2019.

   (b)The changeover for the holiday contact Order, to commence on 5 October 2019, shall be as follows:

   (i)The parties shall, by 4pm Tuesday 1 October 2019, sign all such documents and authorities that may be necessary to allow, if the service is able to do so, the use of the D contact centre as a changeover location;

   (ii)All changeovers shall, unless otherwise agreed in the future, occur at the D contact centre; and

   (iii)The parents shall equally share the costs of the D contact centre for supervised changeovers.

   (c)If, despite the parents using their best endeavours to complete all necessary intake or because the D contact centre is not able to accommodate them, the changeover which is to occur shall be in accordance with Order (5) of the 31 August 2018 Orders until the centre is available. The intent is that the parties shall, unless otherwise agreed in the future, use the D contact centre for changeovers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cliff & Kahmann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1323 of 2015

Mr Cliff

Applicant

And

Ms Kahmann

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. On 31 August 2019, Gill J made final consent Orders in relation to the child X born 16 June 2011.  The orders made by his Honour were mostly by consent and significantly provided, at paragraph 4:

   “Unless otherwise agreed between the Mother and the Father, the child spend time with the Father as follows:

   (a)For a period of two months, the child shall spend time with the Father each Saturday, alternating between Sydney in one weekend and Region A in each alternate weekend, for a period of five hours by agreement, but failing agreement from 9:30am and that such time and the time in the subsequent orders shall be unsupervised;

   (b)Thereafter and for a further period of two months, the child shall spend time with the Father on the Saturday and Sunday of every second weekend for a period of five hours by agreement, but failing agreement commencing at 9:30am on Saturday in Sydney and on Sunday [in Region A];

   (c)Thereafter, and for a further period of two months, each alternate weekend from 9:30am Saturday until 4pm Sunday and for half of all school holiday periods being the first half in odd-numbered years and the second half in even-numbered years; and

   (d)Thereafter, every second weekend from after school Friday until 4pm Sunday and for half of all school holiday periods being the first half in odd-numbered years and the second half in even-numbered years.”

2. The orders, which I am satisfied both parties were well aware, made by consent with the benefit of legal repetition at the time, provided that for a period of two months, the father was to spend time, alternating Saturdays, one in Region A and one in Sydney for a matter of five hours.  Thereafter, after two months, which would be, on my calculations, towards the end of October, the time increased to alternate, effectively, weekends for five hours.  Again, alternating between Sydney and Region A.

3. As a result of the orders, overnight time which was both recommended by the Family Consultant and agreed to by the mother and father was to commence at the end of 2018 or early 2019.  The evidence seems to suggest that the father had not spent any significant and no unsupervised time with his child before the trial. There were periods where there was no time, based on the mother’s allegations that the father was an unacceptable risk – an allegation she withdrew, it seems, at the trial, but not before.

4. I have no doubt that the father was desperate to maintain his relationship with his daughter and, as a result, as the evidence suggests, he and the mother continued to negotiate about when overnight time would commence rather than comply with the Orders of Gill J.  I find that overnight time was to commence by agreement between the parties in accordance with the document reflecting that agreement, being an email from the mother’s then solicitor Mr Gadd to the father of 12 April 2019 which says, inter alia:

   “Our client will agree to your proposal (Easter Monday, 9.30 am, to Easter Tuesday, 4.30 pm).  We’re instructed that it is [X’s] first overnight and that she is very reluctant to spend overnight away from her mother.  Request that you allow [X] to call her mother on Monday afternoon between 6 and 7.  Alternatively, please allow our client to call [X] during that period so that she may console [X] before she goes to bed for the night.”

5. I am satisfied that, on the evidence I have heard today, although the father did attend Easter Monday to begin the agreed time, the child expressed a refusal to go.  I am not satisfied on the evidence that the mother did anything to facilitate and/or to encourage the child to go in any overt way.  In fact, the father’s evidence is, rather than making that encouragement, the mother was using it as an opportunity to gather evidence by filming the event.  Concerningly, of course, by so doing, it would have been well aware to the child that the mother was engaged in that practice.

6. It was as clear an example of a failure by the mother to encourage the child to do not only what she had agreed to by Court Order and the Court ordered, but by what she had consented with the father to undertake.  Now, although I am not required to look at, in this stage of the equation, the events after that date because I am only required to look at the actual count that is raised, and the father says, effectively, this same situation occurred on the date that he sought time again to occur on 4 May 2019, I am satisfied that by the time – that the child had had no time with the father as ordered.  Then, having been set up for an occasion which did not occur, the child probably had become aware that there was no obligation on her, from the mother’s point of view, to attend the time.  In my view, the mother has not demonstrated an excuse, reasonable or otherwise, in my view, for the child not spending time with the father as he asserts.  That will be the finding of the Court.

7. The difficulty, of course is what do we do about the matter. In that case, the Court is entitled to consider all the evidence leading up to the contravention and the evidence after the contravention. The Court has the power under the Act to vary the Order made by Gill J.

8. The Court will also need to consider what sanctions ought be imposed upon the mother. I will hear submissions as to the sanctions and the costs – because the rules provide and the Act provides for costs in a case like this to follow the event.

9. I might be prepared to consider a changeover location at a contact centre so that the mother drops the child off and the father collects the child.  It will not be up to the mother to deal with the child’s distress.  The father will have to deal with that. 

10. I think this is a sad case where almost immediately after the Orders were made, it has fallen into disrepair and it is hard not to, at least, assume at some level that the compromise reached on the 31^st of August was a compromise with which there was not perhaps total unanimity. But nonetheless, it is an Order of the Court and I can not allow Orders of the Court not to be complied with unless there is a reasonable excuse. In this case, in my finding, there is no reasonable excuse within the meaning of the law 

11. Let me just make this clear, it is the first contravention by the mother.  Although the contravention in terms of physical time is serious, having heard the evidence, it would not be appropriate for me to consider imprisonment of the mother.  It is very difficult to see – how compensatory time could operate practically. I am considering having the mother enter into a bond to comply with orders of the Court.  A failure to do so would immediately require her to be arrested and brought to the Court. 

12. I know that would have a very significant effect upon the child because the child is with her and, from all respects, there is no apparent difficulties with the mother’s parenting of the child, but the history, really, does demonstrate a long history of reluctance to support time with the father.  That is what the family report says and the orders were meant to actually create a significant change.

13. Arising from the finding I have earlier made, the Court, as the transcript would reflect, has discussed with the parties and obtained submissions as to what consequences flow from that.  I have indicated that, in my view, the contravention which I found to have been proved with no reasonable excuse on which the mother bears the onus having been proven to my satisfaction, this is a matter to which section 70NEA applies.  Under 70NEA(2), I find that this is a less serious contravention but nonetheless that is mostly because, in my view, the father only sought to assert one count although he could have asserted more and, secondly, this is the first occasion that the mother has been brought to the Court on a contravention application.

14. Section 70NEB is the provision that provides for the sanctions that can be imposed and what orders the Court has the power to make. Under section 70NEC, the Court may require a person to enter into a bond for a period for up to two years with or without a surety and on conditions. The conditions set out in 70NEC(4) include to attend an appointment with the family consultant or to attend family counselling or to attend family dispute resolution or to be of good behaviour.

15. Under section 70NEC(5), if a Court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person in language likely to be readily understood by the person the purpose and effect of the proposed requirement and the consequences that may follow if the person fails to enter the bond or, having entered into the bond, fails to act in accordance with the bond.

16. In my view, although the only contravention before the Court today related to the events in April/May 2019, it has continued.  I consider the mother’s behaviour on the evidence I have seen, put in the context of her acknowledgement before Gill J in August 2018 that the father presented as no risk and that effectively, by consent order, the child would begin overnight time from the start of 2019, all reflect, sadly, an inability of the mother to separate what seems to be her views of the child’s needs from her own concerns about the father.

17. I note the Family Report actually indicated the mother should undertake a full psychiatric assessment, something which was averted by reaching some final orders.  It is paramount, in my view, and in the best interests of X that the relationship identified in the Family Report as being good with the father and the relationship that ought to have been developing in the graduated way by the orders, commence.  In my view, as I will indicate again shortly, giving this child further time to adjust to the mother’s capacity to cope with the Orders is not in the child’s best interests.  The Orders must be complied with unless they are varied by another Court at another stage.

18. So in the circumstances, in my view, having considered no sanction or a fine and disregarding as an option, community service or imprisonment, the most appropriate Order, in my view, is that the mother enter into a bond for a period of 12 months on the following conditions: 

    a)that the mother shall be of good behaviour and comply with orders of Court;

    b)that the mother shall meet with a family consultant at a time nominated by the Family Dispute Section, Family Court of Australia, Sydney.  (The purpose of that will be for the mother to obtain the benefit of advice from the family consultant of the importance of her and particularly for X’s best interests complying with future orders.)

19. I should deal with the cost question next. Mr Legg representing the father, who is the applicant, seeks an order for costs in the amount of $3,300. It is clear from the legislative pathway set out in the Act that a further sanction that does have an effect on people who do not comply with orders of the Court without reasonable excuse is to impose a costs order. I regard the claim of $3,300 as reasonable in the circumstances; however, I accept the submission of Mr Gadd that the mother is currently, or is moving, from a single parent’s pension to some part-time employment. She does not own any other property and at least with an eye to section 117 of the Family Law Act, the father’s current financial position is superior to that of the mother. I take into account that the father is paying child support at the reasonable level of $180 per week.

20. I propose to make an order that the mother pay a contribution to the father’s costs in the sum of $3300 on the following basis:

    a)if the mother continues to comply with orders of the Court for a period of two years, then the order for costs shall be reduced to $1,000 and be payable within three months from that date;

    b)if the mother fails to comply with the orders of the Court as may apply from time to time and the Court so finds, then the costs of $3,300 shall be payable within 60 days of the non-compliance by the mother. 

21. Obviously, if the mother complies, there will still be a costs action.  It will be significantly reduced, and it also gives the mother a chance to both comply and to save the money. 

22. The Act makes clear that if a Court having found a contravention without reasonable excuse, it is entitled to consider of a variation to the orders currently existing.  The Orders made by consent – and again, I remind the parties, by consent – on 31 August 2018 before Gill J provided that, from the commencement of this school year, the child would be spending half of the school holidays with the father.  It did not occur at the end of Term 1 school holidays.  It did not occur at the end of the Term 2 school holidays.  In my view, it should occur in the holidays at the end of the current term.

23. Let me make it clear that I do understand that the mother says – and perhaps based on some view taken by a psychologist who I am not satisfied has necessarily a full picture of the case – has not engaged with the father in a meaningful way but, in any event, may not be aware of the full extent of the reasons of Gill J, the attitude taken by the parties on 31 August, and the Family Report that preceded that matter – that this child, in those circumstances, is either too young or it would be contrary to her best interests to have extended overnight time with the father.

24. I do not anticipate this will occur without some degree of difficulty but parents have to manage the stress of their children in a whole range of circumstances, and in this case, this child has two available and, at least on the evidence, capable parents.  It seems to me that the child spending holiday time with the father rather than time during a school time, again as we recommence this regime, allows the father more flexibility and opportunities to re-engage with his daughter in a meaningful way.

25. She clearly, on the evidence, appears to be a child who is either a high achiever or is thought to be a high achiever within her school environment and extracurricular activities.  She will not need to worry about that when she is spending a week’s holiday with the father but, most significantly, in my view, it is in the best interests of the child that this child not be allowed to form a view which she may, through lack of time with the father, come to form that the father is, in some way, a risk to her or is, in some way, unable to care for her properly.

26. The evidence of the parties’ agreement in August and the lack of any real evidence of the child being at risk in the father’s care means there is no basis upon which this child should reasonably form this view.  Now, let me make it clear that, in making this decision about time recommencing under the order, I am conscious of the fact that the mother says the child has complained to her about things such as rough play and tickling and scary manoeuvres.

27. Of itself, they are not, even if proved (and I am not satisfied this occurred), anywhere near sufficient to establish that this child should not spend time with, in this case, the father.  The mother and father may have quite different parenting styles.  I suspect they do.  The whole purpose of the mother being required by my Court order to consult a family consultant as a result of my order and where the family consultant will have the benefit of these reasons is so that the mother understands that the father will parent the child when the child is with him in his way and the mother in her way, and the child is capable, I believe, from having read the Family Report, to understand that if she is given an opportunity to do so.

28. So although I accept that an overly cautious approach might have been to elongate a return to some sort of time over many, many more months, in my view, that is not the appropriate approach in the best interests of this child at this stage.  She is to be placed in the care of her father, who will need to manage her.  The only thing I say to the father is this.  It will be a matter for him, having had the opportunity presented to him for the child to come into his care, to make sure that that becomes meaningful time.

1. It would be contrary to the best interests of the child if she is further immersed in the dispute between the parents which has still been simmering in this case and to, in any way during the period of time the child is in his care, see him to be critical of the mother or bringing the child into the dispute.  His time with the child is about his time in relation with the child.  The child may say things to him about the mother or about him.  He should be very careful not to be critical of the mother to the child.

2. The mother remains, under the Orders as they currently exist, the primary carer of this child and that is likely to be the primary relationship and attachment this child has.  In view of the history, that is the position which has been generated by the history of this case.  So for the reasons I have given, it is my view that, effectively, the Order made by consent by the parties in August 2018 before Gill J should be put back into effect immediately, commencing with the forthcoming school holidays.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 26 September 2019.

Associate: 

Date: 13 February 2020